Undated amendments

[J Simmons]

I took over the design and document work for a plan that has a TRA '86 d-letter, but not a GUST II d-letter. For GUST II, it was timely restated using a VS document.

We've restated it for EGTRRA using a prototype document.

I'm considering making an application for an EGTRRA d-letter. In assembling the plan documents since the TRA '86 d-letter, I've noticed that on two of the interim amendments, the VS sponsor signed/dated, but the employer signed but did not date. Also, the date is faint on the GUST II restatement VS adoption agreement, but upon 4X magnification can be discerned (and it was timely).

Should I make an interim amendment failure VCP application due to the lack of dates on the two interim amendments?

(I know of a plan that its TRA '86 restatement docs were signed but not dated, and that resulted in a $3,500 penalty when caught on GUST II d-letter application.)

[Belgarath]

Did the VS interim amendments actually require a signature by the plan sponsor? I ask only because many VS documents instituted a provision for unilateral amendments in response to the guidance in IRS Notice 2005-37. Many amendments since that time have a place for a plan sponsor signature IF they are electing to change anything that might be optional in the interim amendment, but if they don't, the provisions are automatically effective and require no signature.

Be prepared to explain this to the IRS, as our experience is that most of the reviewers, particulalry the plan termination reviewers, do not know their own requirements and giuidance.

[J Simmons]

Did the VS interim amendments actually require a signature by the plan sponsor? I ask only because many VS documents instituted a provision for unilateral amendments in response to the guidance in IRS Notice 2005-37. Many amendments since that time have a place for a plan sponsor signature IF they are electing to change anything that might be optional in the interim amendment, but if they don't, the provisions are automatically effective and require no signature.

Be prepared to explain this to the IRS, as our experience is that most of the reviewers, particulalry the plan termination reviewers, do not know their own requirements and giuidance.

Thanks, Belgarath. There were two other interim amendments that did utilize the method you spoke of, from IRS Notice 2005-37. However, for some reason the two interim amendments I am concerned with were drafted in a way that required the sponsoring employer's signature in addition to the VS sponsor's signature, and there were no options being given to the sponsoring employer.

I think that you answered my question, though. Since IRS reviewers are challenging those amendments structured under IRS Notice 2005-37 and bear the VS sponsor's signature but not that of the sponsoring employer (as no options were selected), then those reviewers would obviously be on the look out for and challenging the fact that there are other amendments that would have the VS sponsor's signature but not that of the employer too.

Thanks.

[Belgarath]

Yes, I agree that it is unlikely they would just let it slide.

[Guest Sieve]

I agree with Belgarath. But, if you somehow came up with a transmittal letter from the client sending the signed documents back to the TPA/attorney, then I would have no qualms about dating the amendments the same date as the trasmittal letter.