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Peter Gulia

403(b) IRS-preapproved documents

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Of the big 403(b) providers, which of them offers an IRS-preapproved prototype or volume-submitter document (or a document so intended)?

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I believe the answer is currently "none." Everyone has their docs with the IRS now pending approval, which will come at a time still unknown. There are prototype "style" documents out there, however.

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I don't know of any. The IRS issued a model 403b plan several years ago and promised to open an approval process for ptype 403bs but I don't think any plan has been approved..

Why not call tiaa cref?

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See link. The IRS had extended the deadline for providers to submit docs to April 15, 2015. Presumably they did this, unless it has been extended further - if it has, I don't know about it. Yes, you'd want to check with the providers to see, but I assume pretty much all of them that do 403(b) docs have in fact submitted already, unless there was a further extension.

http://www.irs.gov/irb/2014-16_IRB/ar16.html

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If an employer in 2015 states a new plan by using a document that now is waiting for approval and later becomes IRS-approved, does the user get retroactive reliance on the IRS's letter?

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No. See the following excerpt from Section 19.03 of Revenue Procedure 2015-36.

(2) An adopting employer has no reliance if the employer’s adoption of the plan precedes the issuance of an opinion or advisory letter for the plan.

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Belgarath, thank you for this super helpful information.

So the only way an employer can get comfort about whether its document states a plan that (if administered according to its provisions) gets the Federal income tax treatment of Internal Revenue Code section 403(b) is to get its lawyer's or other practitioner's written advice?

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Well, no, I wouldn't go quite that far, depending upon your definition of "comfort."

I would feel comfortable using a document provided by any of the major providers - with a good faith compliance effort like that, the client should be fine with retroactive adoption of an approved document (once available) to correct any defects as to form. Naturally, if they want an additional layer of comfort, they could see their friendly ERISA attorney.

Basically, once the documents are approved, everyone will have a grace period to adopt retroactively and have reliance (for form, not operational compliance of course.) It's just that adopting a document now, even if ultimately approved unchanged in its final form (which seems unlikely, but possible) wouldn't give you that same reliance - in order to get it, you have to adopt retroactively AFTER the IRS issues the opinion/advisory letter.

Plus, I rather expect that the IRS is going to have, at least, certain streamlined operational corrections available for what is likely to be an avalanche of corrections for common errors, once documents are approved and everyone gets up to speed. But that's just a guess.

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Belgarath, thank you for the further explanations.

Count your writing here today as a valuable pro bono contribution, supporting mine, to a charity that's doing great things.

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