EPCRS - what do you think of this correction?

[Blinky the 3-eyed Fish]

I am largely unfamiliar with EPCRS (I never ever make mistakes ), so let me know if you think this is correct. All those affected are NHCEs, so no discrimination issues.

Takeover profit sharing plan has the following issues:

1) The prior TPA failed to include some eligible employees. This seems like an easy correction under SCP: just give contributions plus earnings. Note I specifically did not say to adjust for losses as I don't think that is required and I don't want to do that.)

2) They allowed participants into the plan too early. Seems like the SCP correction can be to amend the plan under 2.07 of Appendix B to retroactively allow entry.

3) There is a last day requirement to receive a profit sharing contribution, yet too much was given to terminated participants. They just needed to get the gateway, but instead received amounts over and above it. I don't see how this is eligible to be corrected under SCP and allow the employees to keep the allocations. The correction would require an amendment to remove the last day requirement. I don't see this as one of the operation failures eligible for correction under SCP under 2.07 of Appendix B. So, it seems to me a VCP submission is required.

4) Their EGTRRA restatement was effective 1/1/2008 yet signed 11/2009. It did amend eligibility entry dates. It would be best if the effective date was changed to 1/1/2009. Anyone know what the IRS would say about this?

When making the VCP submission should all failures be disclosed, even the ones that can be corrected via SCP?

Thanks.

[K2retire]

If you read the example for # 2, you will notice that you amend the plan retroactively, but also have to file the amendment for a D letter. It's really annoying how they hid that detail.

[Blinky the 3-eyed Fish]

Yes, I did see that, thanks.

Looking for Tom Poje to chime in. Tom, it's your time to shine.

[12AX7]

I'm arriving to this discussion a little late, however I don't think it would be required to submit for a DL if a pre-approved plan were being used. IRS had commented on the same issue at the ASPPA conference last Novmeber. Take a look at 6.05 of Rev Proc 2008-50 (page 32) and the memorandum from Michael Julienelle dated 3/11/09. If the plan is individually designed, then I would otherwise agree.