ERISA Plan Defect Prior to 01/01/09

[Guest Tom:]

Can an ERISA 403(b) plan use EPCRS to correct written plan defects that occured prior to 01/01/09? In this case, the plan improperly made loans to participants in 2004 when such loans were not permitted under the plan's ERISA written plan document. Will the IRS approve a retroactive plan amendment to correct this defect under EPCRS?

[Everett Moreland]

In 2004 there was no plan document requirement under the IRC for a 403(b) plan, and so a 2004 variation from the document is not an IRC problem.

[Guest Pension Girl]

In 2004 there was no plan document requirement under the IRC for a 403(b) plan, and so a 2004 variation from the document is not an IRC problem.

I think there was a plan document requirement for ERISA plans, and now he at least has an operational error since they did have a plan. I would apply the SCP retroactive correction, but since 2 years has passed, I think you can only do this if it is insignificant.