VS Plan makes late mandatory rollover amend - what now?

[jlea]

Client was on volume submitter plan, used the volume submitter's EGTRRA good faith amendment, made own 401(a)(9) amend, made own LATE mandatory rollover amendment. Hasn't made any other amendments.

VS filed timely and hasn't yet received letter.

Assume that the plan will take advantage of Rev. Proc. 2007-44's Section 19 guidance regarding VS plan's entitlement to six year remedial amendment cycle even if it has amended out of VS status.

1. Putting aside my description of the mandatory rollover amendment as late, is it late since the plan has not yet filed its on-cycle D letter application?

2. If #1 is yes, then should client file VCP submission concurrently with a D letter application?

[John Feldt ERPA CPC QPA]

Basically, the 401(a)(31)(B) amendment (a.k.a. automatic rollover amendment, or mandatory distributon amendment) was generally required to be adopted at the end of 2005, or the due date of the company tax return including any extension that contained the plan year containing March 28, 2005 (something like that).

However, if your plan did not have any language that forced out distributions, then you would not need such an amendment (we had a couple of DB plans that did not pay any small lump sums, for example).

If that is not your situation and if the amendment has just now been executed (signed), then it is late, and you can file under EPCRS for a mere IRS fee of $375.