Amendment and Restatement of a Plan

[Madison71]

I'm filing a request for determination for an individually designed 401(k) plan. Its a 12/31 year-end. In reviewing, the restatement effective date says 1/1/2008, but it wasn't signed until 10/10/09. The plan is a Cycle D filer with a required submission to IRS by 1/31 to stay on-cycle. I basically understand the rules of discretionary amendments needing to be signed by end of plan year and required by due date of tax return plus extensions. I also remember the old GUST restatements where you could go back several years as long as operational. There were no changes requiring a restatement as of 1/1/08. Not sure why it wasn't 1/1/09, but in any case do I have to do an amendment to the plan?

[Blinky the 3-eyed Fish]

I agree it probably should be effective 1/1/2009. If I understood you correctly, there were no changes to the document from 2008 to 2009, so the 1/1/2008 effective date has no real effect on the plan. If that's right, my recommendation is to submit as is and have the IRS make you change it.