Restatements

[Belgarath]

The 5300 instructions (which haven't been updated for years) require that if there have been 4 or more amendments, a restated document is required. The 5307 doesn't have this requirement - merely asks you to list the number of amendments, and if more than 4 you attach a separate sheet.

In the old days, when we used to file for determination letters for every plan, we routinely restated after 4 amendments, but I see no need for anything like that now. Anyone have any other thoughts on this?

[ERISAnut]

I have a thought. Regardless of the rule, you should want to for the sake of your employees. Who wants to track summary of material modifications. It would be nice to reference one document with complete and updated information. When amended (i.e. changing only one or two provisions without re-writing the entire document) then that necessitates a SMM to be sent to all participants. Imagine having to track 4 of these. I'd rather receive one updated SPD.

So, regardless of the amendment, a full restatement would generally produce a new SPD on most document software systems.

Just a thought without engaging in the legal aspects.

[Kevin C]

With the 6 year cycle for pre-approved plans and the IRS's preference for interim amendments, I don't think they could require a restatement after 4 amendments. You wouldn't have a document available with the interim language until the new version receives IRS approval. When the new approved document is available, you will be restating shortly anyway. Our new EGTRRA pre-approved documents already have two interim amendments included.

[John Feldt ERPA CPC QPA]

Although I don't like tracking SMMs, sometimes the client wants to point out to the employees exactly what is being changed. Handing out an entire SPD would somewhat bury the changes with all of the rest of the plan. Of course, other clients waht to de-emphasize any changes, so a full SPD is exactly what they want.

[Peanut Butter Man]

The -6 Revenue Procedure contained this requirement every year in Section 7.04 until this year. In Rev. Proc. 2007-6, Section 7.04 stated:

"04 In general, individually designed plans must be restated when they are submitted for determination letter applications for the initial remedial amendment cycle (that is, EGTRRA remedial amendment period) and subsequent remedial amendment cycles. For this purpose, submission of a working copy of the plan in a restated format will suffice.

A restated plan is required to be submitted if four or more amendments (excluding amendments making only non-substantive changes) have been made since the last restated plan was submitted. In addition, the Service may require restatement of a plan or submission of a working copy of the plan in a restated format when considered necessary. Where a working copy is submitted with executed amendments integrated into the working copy, all such amendments must also be separately submitted. For example, restatement may be required when there have been major changes in law. A restated plan or a working copy of the plan in a restated format must be submitted for a plan that has not previously received a determination letter that takes into account all requirements of EGTRRA. "

In Rev. Proc 2008-6, Section 7.04 states:

".04 Individually designed plans must be restated when they are submitted for determination letter applications. For this purpose, submission of a working copy of the plan in a restated format will suffice. Where a working copy is submitted with executed amendments integrated into the working copy, all such amendments must also be separately submitted. The Service considers a working copy as a document that incorporates all previously executed amendments into one restated document. The intended purpose of a working copy in a restated format is only for ease of review and plan administration. The Service reserves the right to make a determination as to whether the working copy is in a restated format that will facilitate the review of the plan. "