Re-adopt "Good-Faith" Interim Amendments

[Rob P]

Question 1: Is it definitely required to re-adopt the EGTRRA good-faith amendment for a post-GUST plan restatement? (getting conflicting answers from different sources)

Question 2: If it is required and the re-adoption was not done at time of restatement, is it a self-correction situation or is an IRS correction filing required?

Situation: We restated a client's plan using a volume submitter plan back in 2003 for GUST. At that time the client also adopted a good-faith EGTRRA amendment, and a final RMD amendment. In 2006, the client wanted to change their elig. and a few other discretionary plan features. We restated the plan in entirety, but did not re-adopt any interim amendments.

We justified our action after reading Rev Proc 2005-66, Section 5. Also, Rev. Proc 2005-66, Section 6.03 kind of infers that if it was unintentional that we can still fix through the end of the EGTRRA RAP.

Any thoughts are appreciated.

[John Feldt ERPA CPC QPA]

If the plan is a prototype and the prototype document sponsor has adopted all of these interim amendments on behalf of the clients, then when you restate on that prototype, I see no need to have the employer re-adopt all of those tack-on amendments. They are automatically part of the plan. If your client needs something different than what was adopted by the document sponsor, then they should sign that amendment.

With a volume submitter plan, if you are using the same GUST volume submitter document again to restate, then in the resolution to restate you may be able to mention that the plan is being amended in full but that the EGTRRA, 401(a)(9), 401(a)(31)(B), etc. amendments are retained in their original form, but I am not 100% certain about this. Let's see what other commentators say too.

Upon edit, I added this: Question #2: I don't think it would be self-correction. Either it was amended timely, or schedule F of Rev Proc 2006-27 under a VCP application should be filed.

[Rob P]

John, thanks for the response.

I agree with you that a simple line added to the resolution would have solved the problem and this is something that we're doing now. I've still got my fingers crossed that it’s enough of a gray area and an IRS filing won't be necessary.

I'm banking on that fact that it's still essentially a GUST volume submitter document which did not affect any of the provisions in my interim amendments.

I would hate to explain to the client that we may have caused a qualification issue because we didn't have them re-adopt the same exact good-faith EGTRRA amendment for the third time in four years.