Must a plan adopt a good faith amendment for new 401(k) regs prior to its cycle?

[Guest LMalone]

Plan X is an individually designed plan on Cycle C. Its RAP ends 1-31-09. The 401(k) regs are effective in 2006. Even though Plan X does not have to be submitted until 1-31-09, must it adopt a good faith amendment in 2006 to incorporate the final 401(k) regs?

What about adopters of a volume submitter plan? The specimen plan will include final 401(k) regs, but the adopting employer does not have to submit until at least 2009 or 2010. Must this plan adopt a good faith amendment in 2006 to incorporate the final 401(k) regs?

Unlike GUST, where a plan was required to comply operationally during the RAP, it seems for this round the Plan must also comply in writing.

Any advice?

[Guest LMalone]

I'm being sneaky and responding to my own question in order to get my topic back to the head of the line.

I have many hits but no replies.

Is everyone stymied by the question? Any guidance from the IRS?

[Guest SuzanneW]

I am one of the people that looked, but didn't respond - because I don't have an answer but am hoping that someone else comes up with one because I am also worried about this.

I emailed Datair, and this was the response I received:

"Don't know quite yet, the ASPPA Gov Affairs Comm and other interested groups are still lobbying the IRS for more guidance on this issue and well as IRS drafted model amendments or good faith amendment guidance."

[sloble@crowleyfleck.com]

if your plan is not amended to comply with the new regulations then you might have an ERISA problem with not operating your plan in compliance with its terms