Late Filed VS Plan

[Guest jvanheyde]

A VS Practioner failed to timely file its 401(k) VS Plan by 12/31/00. Unless an employer adopts or certifies adoption of a different, timely filed M&P or VS Plan, doesn't the VS plan of the employer in effect become an individually designed plan that (assuming a 12/31 or 1/31 year end) must adopt the GUST amendments by 2/28/02? Does this Plan have to be submitted for a determination letter on Form 5300 by 2/28/02? If not, can the plan adopt a snap on GUST Amendment, wait for the late filed VS Plan to be approved, then restate using the late but approved VS Plan, and then submit for a determination letter?

[Mike Preston]

"A VS Practioner failed to timely file its 401(k) VS Plan by 12/31/00. Unless an employer adopts or certifies adoption of a different, timely filed M&P or VS Plan, doesn't the VS plan of the employer in effect become an individually designed plan that (assuming a 12/31 or 1/31 year end) must adopt the GUST amendments by 2/28/02?"

Sounds right to me.

"Does this Plan have to be submitted for a determination letter on Form 5300 by 2/28/02?"

Yes, unless as you note above, they obtain an extension.

"If not, can the plan adopt a snap on GUST Amendment, wait for the late filed VS Plan to be approved, then restate using the late but approved VS Plan, and then submit for a determination letter?"

I don't think so. I mean, they can do it, and it would be better than doing nothing, but they would be a late amender.