Can We Amend?

[Guest 1881]

Plan agreed (with union) to provide a 2% nonelective contribution for 2008. Plan was not amended by 12/31/08. Plan would now like to make the contribution. Can we amend the plan now (given that it is before the sponsor's tax filing deadline and had the plan been amended last year, the contribution would be timely) and make the contribution?

Thanks

[Guest Sieve]

Does the plan already permit discretionary employer contributions? If so, there's no need to amend. If not, and if this was my plan, I'd amend now (retroactive to 1/1/2008) because the amendment is adding/increasing a benefit/contribution (although others may disagree)--I've never had a problem on audit or requesting an FDL with an amendment like that which adds a benefit.

[JanetM]

Steve is correct figure out a way to get the funds in the plan either with late amendment or disc. contribution. If you don't you will have more problems as this contribution is probably in the CBA and you don't need labor problems to boot.

[Guest CinC]

Look at Code Section 401(i) to see if you think that could be read to permit the late amendment and the contribution.

[MWeddell]

Are there any documents recording the union negotation that might constitute an amendment done by 12/31? As you know, discretionary amendments needed to be adopted by the end of the plan year in which they are effective.