VCP submission for GUST non-amender

[Guest Nineteen]

We have a prospect who did not timely amend his (one-man) money purchase plan for GUST/EGTRRA. He had been using a prototype sponsored by his financial institution and was sent the documentation to amend the plan, but never completed the paperwork.

We understand that he will need to submit under VCP and pay the applicable user fee. However, we are debating as to whether the submission of Form 5307 is also required in conjunction with the VCP submission. He will adopt a prototype plan that would otherwise not require submission to the IRS.

We are looking at the language in Revenue Procedure 2003-44, section 10.06 and are stumbling on the language referring to the "adoption of a prototype or volume submitter plan for which the Plan Sponsor has reliance . . . ."

I feel the additional submission of the 5307 is required, but I (and the client ) would be happy to be proven wrong. Thanks.

[WDIK]

.06 Determination letter application for plan amendments related to a VCP submission. In any case in which correction of a Qualification Failure includes correction of a Plan Document Failure or Demographic Failure, or an Operational Failure by plan amendment, as permitted under section 4.05, other than the adoption of an amendment designated by the Service as a model amendment or the adoption of a prototype or volume submitter plan for which the Plan Sponsor has reliance on the plan’s opinion or advisory letter as provided in Rev. Proc. 2003-6, 2003-1 I.R.B. 191, the Plan Sponsor must submit a copy of the amendment, the appropriate application form (i.e., Form 5300 series or Form 6406), and the appropriate user fee concurrently and to the same address as the VCP submission. The user fee for the determination letter application and the fee for the VCP submission must be submitted on separate checks made payable to the U.S. Treasury. See section 11.11 for the VCP mailing address.