Written deferral election required

[Belgarath]

First, the plan document requires it, so whether or not the Code or Regs require it is really moot. Someone is asking (a sole prop) because they did not sign a deferral election prior to the end of 2009. I'm curious as to whether there is a such a requirement in the Code or Regs that I'm missing?

Has anyone ever seen a document that does NOT require a signed election, other than automatic enrollment, of course? I mean, the "election requirement" in the regs is rendered utterly meaningless unless there is a written election, so I wonder if the IRS would even approve it.

Just curious to see if anyone else has ever considered this.

[Tom Poje]

maybe here

1.401(k)-1(a)(6)(iii)

Accordingly, a

self-employed individual may not make a cash or deferred election with respect to

compensation for a partnership or sole proprietorship taxable year after the last day of that

year. See §1.401(k)-2(a)(4)(ii) for the rules regarding when these contributions are treated

as allocated.

[Belgarath]

Yeah, I had looked at that, but that doesn't say the election must be in writing. Just that you must make it in time.

Mind you, I'm not trying to argue that an election doesn't have to be in writing, just wondering if the Code/Regs actually state it somewhere that I missed. Even if the document somehow didn't require a written election, I think you'd have scant success arguing with an auditor that, "gee, the Code doesn't SAY it has to be a written election."

[Guest jims]

I've seen a plan that used words like 'election in manner defined by the Company' and has the IRS determination letter. It never said anything about written or signed election.