Plan Amendment

[Guest Lee68]

In regards to processing a discretionary amendment to a prototype plan, if the employer is a corporation, is a board of directors resolution required to process the amendment? Or would a trustee signed letter requesting the amendment be acceptable?

[J Simmons]

What does the existing plan document say about who has the authority to make amendments and how?

[Guest Lee68]

What does the existing plan document say about who has the authority to make amendments and how?

The document is a Corbel document. The basic plan document states "the employer can amend at any time".

[J Simmons]

I take it there is no written delegation of that authority from the employer to the trustee, which would not be an authorized agent of the employer merely by virtue of being the trustee of a retirement plan sponsored by the employer.

So action by the trustee alone would probably fall short of effecting an amendment to the plan.

A request then by a person without authority to amend the plan that an "amendment" be acceptable would not seem to amend the plan either. Not a request alone. Inherent in a request for acceptability is that the action (here an "amendment" desired by the trustee) is not yet fait accompli.

I'm assuming the request is from the trustee to the employer, seeking the employer's acceptance. Whether the board of directors' resolution is necessary, or simply some action by someone else for the corporation, see the U.S. Supreme Court's decision in Schoonejongen v Curtiss-Wright (circa 1995).

[Guest Lee68]

Thank you for the response, it is greatly appreciated.