Peanut Butter Man

In this situation, I prepare two completely separate application packages in separate envelopes and then mail them together in one larger envelope. I also add a paragraph in each cover letter stating that I've submitted another plan of the same employer for correction at the same time. This permits the IRS to pair the submissions together and send them to the same agent or the same group to be worked on.

2008 Cumulative List was published as Notice 2008-108 - http://www.irs.gov/pub/irs-drop/n-08-108.pdf

I agree with Sieve. For 401(a)(31), it was Notice 2005-5 and Notice 2005-95. Notice 2005-5 provided the initial requirement, and Notice 2005-95 extended the deadline to amend.

Were the resolutions which accompanied the amendments signed and dated at the time the amendments were signed? If so, I would submit those resolutions to show that the amendments were signed.

The plan document we use says that the safe harbor notice is an amendment to the plan, so for us the safe harbor notice does become part of the plan documentl.

I was more optomistic before the ASPPA webinar yesterday simply because Bob Architect spoke at both. So in two days, he had two opportunities to announce an extension, and did not do so. I thought today's webcast was very interesting. Bob opened the webcast with discussing the extension, which shows how important this issue is. I then thought he parsed his words by saying that they have received comments, and will have a response to those comments within the next 2-3 weeks. By my count, Dec. 4th plus 3 weeks is Dec. 25th (Thursday). Most offices are planning on closing Friday, Dec. 26th. That means an extension would only be a reprieve for the (hopefully) very few plan sponsors who waited until the last 3 days of the year to adopt a written plan which complies with the Final 403(b) Regs. Anyone want to start a pool on when the announcement, either yea or nay, is going to be made.

It has been a while since I worked for the government but the DOL, IRS and PBGC, as well as some other government agencies, use filings to track the activies of the plan sponsor as well as the plan.

According to Rev. Proc. 2005-18, when the plan sponsor left the prototype sponsor, the plan became individually designed. The plan sponsor can keep that plan document, and maintain it as an individually designed plan following the 5-year cycle in Rev. Proc. 2007-44 based on the last digit of the plan sponsor's EIN. If the plan sponsor does not want an individually designed plan document, the plan sponsor can adopt another plan sponsor's prototype. If the plan is a defined contribution plan, you will want to restate onto the EGTRRA pre-approved plan document by the earlier of April 30, 2010 or the end of the 5-year cycle provided in Rev. Proc. 2007-44 based on the last digit of the plan sponsor's EIN.

Try the IRS Employee Plans Customer Service phone number at 877-829-5500.

The -6 Revenue Procedure contained this requirement every year in Section 7.04 until this year. In Rev. Proc. 2007-6, Section 7.04 stated: "04 In general, individually designed plans must be restated when they are submitted for determination letter applications for the initial remedial amendment cycle (that is, EGTRRA remedial amendment period) and subsequent remedial amendment cycles. For this purpose, submission of a working copy of the plan in a restated format will suffice. A restated plan is required to be submitted if four or more amendments (excluding amendments making only non-substantive changes) have been made since the last restated plan was submitted. In addition, the Service may require restatement of a plan or submission of a working copy of the plan in a restated format when considered necessary. Where a working copy is submitted with executed amendments integrated into the working copy, all such amendments must also be separately submitted. For example, restatement may be required when there have been major changes in law. A restated plan or a working copy of the plan in a restated format must be submitted for a plan that has not previously received a determination letter that takes into account all requirements of EGTRRA. " In Rev. Proc 2008-6, Section 7.04 states: ".04 Individually designed plans must be restated when they are submitted for determination letter applications. For this purpose, submission of a working copy of the plan in a restated format will suffice. Where a working copy is submitted with executed amendments integrated into the working copy, all such amendments must also be separately submitted. The Service considers a working copy as a document that incorporates all previously executed amendments into one restated document. The intended purpose of a working copy in a restated format is only for ease of review and plan administration. The Service reserves the right to make a determination as to whether the working copy is in a restated format that will facilitate the review of the plan. "

There are a number of plan document companies which sell 403b plan documents. Both TPAs and the fund companies can explain what the companies offer and what they charge. You will also need to know about summary plan descriptions and forms which you will need along with the plan documents, such as beneficiary forms. The IRS created a model 403b plan document to be used by public schools. Since your organizations are not schools, you will probably not be able to use that document. If you want to take a look at it, just google for it or check the IRS' website.

I think the IRS would argue that it is not a scrivener's error when the plan is not operated according to the provisions in the plan document - it is a plan document failure which needs to be corrected through EPCRS. For me, scrivener's errors are where the plan document provider's software malfunctions, or the word processing program malfunctions, and a word winds up missing or garbled, or there is a typo, so that the average person reading the sentence would see that something is obviously wrong. I saw one plan that said Code section 451 compensation. It was a scrivener's error and should have said Code section 415 compensation.

Adoption Agreement was only 4-5 pages long, and took a chance sending it in to the VCP program when I couldn't obtain a copy of the basic plan document from the prior TPA. IRS sent it back. Finally able to obtain a copy of the basic plan document by getting creative and figuring out who actually wrote it, and got a copy from that source.

My experience with this situation is that you will receive a letter asking for the plan document, and if you can't provide it, the submission will be returned. No document = no plan. Since you have the adoption agreement, have you thought about tracking down who wrote the prototype and asking them for a copy of the document.

With the Pension Protection Technical Corrections Act still pending before Congress, I don't understand the rush to restate for EGTRRA. The way I am reading Rev. Proc. 2007-44, it doesn't matter if I restate on the first day of the two-year period, or on the last day of the two-year period.

If the document is from 2004, have you checked the Final 401(k) amendment to see if it made any changes to the hardship provisions?

I've wondered about this too. We use a couple of sources for plan documents, and one proposal we received for individually designed plan documentst was from someone who called themselves an independent plan document consultant. The individual plan document consultant said they could not sign Form 2848 because they were not a CPA, enrolled actuary, attorney or enrolled agent but they could write plan documents which the IRS would accept, which I don't understand. Their price for a cash balance plan document was about half what our prototype and volume submitter company wanted to charge us. Do plan documents have to be written by an attorney or someone who can sign Form 2848?

I think the last information on this from the IRS was in the 2007 List of Interim and Discretionary Amendments, which states: "§ 402©(11) [Discretionary]: PPA ’06 § 829(a)(1) added § 402©(11) to allow nonspouse beneficiaries to roll over distributions from a qualified plan to an individual retirement plan. Nonspouse beneficiary rollovers are an optional plan provision for 2007. See, Notice 2007-7. Pursuant to an impending technical correction, nonspouse beneficiary rollovers will be required for plan years beginning on or after January 1, 2008. See, section 9(e) of S. 1974, the Pension Protection Technical Corrections Act of 2007, as introduced in the Senate on August 2, 2007 and section 9(e) of H.R. 3361, the Pension Protection Technical Corrections Act of 2007, as introduced in the House of Representatives on August 3, 2007." A copy of the 2007 List of Interim and Discretionary Amendments is available at http://www.irs.gov/retirement/article/0,,id=173372,00.html Pension Protection Technical Corrections Act was passed by the Senate in December of 2007, and by the House earlier this year. I believe both the House and the Senate versions still contain the mandatory language. The date was changed in the House version for rollovers to nonspouse beneficiaries applying for plan years beginning after December 31, 2007 to rollover to nonspouse beneficiaries applying to plan years beginning after December 31, 2008. I am not clear on whether rollovers to nonspouse beneficiaries are still mandatory for 2008. I am hoping the IRS will clarify this.

I think this is one of the inherent problems with Rev. Proc. 2005-66. The EGTRRA prototypes and volume submitters are based on the 2004 Cumulative List. Adding PPA provisions to those documents creates a fairly large amendment with a lot of changes to the document and the SPD. I've been struggling with whether it is better to provide the EGTRRA SPDs and provide participants with SMMs for all of the PPA amendments, or whether we just want to rewrite the SPDs to incorporate the changes from the PPA amendments, especially for our defined benefit plans. Part of the struggle I'm having with the SPD is the IRS running on 6-year cycles for the documents and the DOL requiring updated SPDs to be provided every 5 years. Most of our GUST defined benefit plans have an SPD from 2003 or 2004, and the EGTRRA defined benefit prototypes and volume submitters will not be available until 2010, which means we need to come up with an updated SPD this year.

What is an independent document consultant?

The EGTRRA prototypes were required to comply with the 2004 Cumulative List, which includes the Final 401(k) Regs, so the EGTRRA prototypes should include the provisions from the Final 401(k) Regs and not require an amendment. The IRS published the 2004 Cumulative List as Notice 2004-84.

Don't you work for Accudraft?

What does the Basic Plan Document state about rehired participants since it is a prototype document?

On a side note, I am interested in authority on granting an employee a year of service. I have seen this done and have always been bothered by it. Curious about what the Treas. Reg. or IRS guidance is which permits this.

What does BTT mean?