Is there any hope for a plan that never was written?

[Peter Gulia]

A one-participant retirement plan intended as a 401-qualified plan has been in operation for 33 years. The employer filed a Form 5500 every year. Each year's contribution was within the 404 and 415© limits. No distribution. Every fact we can see shows that the employer operated the plan according to provisions that, had they been written, would have been a tax-qualified plan. But after a thorough search of the employer's records and the investment guy's records, we can find nothing that even suggests that the plan ever was committed to writing. What IRS correction program could one use to fix this? If none, is there any other hope?

[MSN]

I had a similar situation a year or so ago. I was trying to help a prospect get into good enough shape for us to accept them as a client. I was able to speak with a revenue agent at IRS and it was suggested that in such a case you could file under the VCP and include a document that reflects the plan provisions that have been used in administering the plan. I referred the client to counsel to assist with this and lost track of where it went from that point, so I can't say that it was successful, but I would follow the same approach if the situation ever presented again.

Mark

[Kevin C]

How about an anonymous (John Doe) non-amender VCP filing? You can go all the way back to ERISA for a non-amender filing, so you can go back to the establishment of the plan.

[Peter Gulia]

MSN and Kevin C, thank you for the helpful suggestions.

Do you think that the IRS might use a non-amender route to resolve a situation in which even the first plan document never was done?

[Guest amadeus]

But remember that the John Doe submission does not protect you in the event of an audit. The VCP submission closes the door on Audit CAP>