streamlined VCP for failure to adopt timely amendment

[Gudgergirl]

One of my plans was not timely amended for 415 regs or PPA. I prepared an amendment that covered both of these. It was signed 2/16/10. (EGTRRA Restatement was signed timely).

I submitted to IRS using streamlined VCP with Appendix F Schedule 1 and check the box for "Final regs under 415" and check the "other" box and write in PPA.

The IRS tells me with regards to the 415 amendment - I need to submit Appendix F, Schedule 2 because "the amendment was signed outside of the remedial amendment period of 1/31/10."

For all I know she is correct but I can't for the life of me figure this out. DOes nayone know if this is a rule and if so where it comes from?

[ERISAatty]

My approach is always to do what the IRS tells me to do... Makes life easier.

[Kevin C]

I think the agent you are dealing with is confused. Signing the amendment after the end of the remedial amendment period is what makes it a nonamender failure.

The streamlined VCP filing is discussed in Rev. Proc. 2008-50, Section 11.02

.02 Streamlined Application procedures. (1) If all of the Qualification Failures the Plan Sponsor proposes to correct through VCP are described in section 11.02(3) and the Plan Sponsor proposes to correct such failures using a correction method provided in the Appendix F schedules, then the submission should be made pursuant to these streamlined procedures. A Streamlined Application pursuant to this section consists of the Appendix F, the appropriate schedule(s) for the failure(s) (as described in section 11.02(3)), and all other documents required as indicated on the applicable schedule. The Service reserves the right to request additional information in connection with its processing of the Streamlined Application. The failure to provide the information required in the format provided in Appendix F may result in a delay in the processing of the submission. If only certain failures contained in the submission are described in section 11.02(3) (or one or more of the proposed corrections is not a method set forth in the Appendix F schedules), then the submission may be made pursuant to the Streamlined Application Procedures, to the extent applicable, and using the general rules of this section 11 to the extent the Streamlined Application procedures are not applicable.

(2) The Streamlined Application procedure in Appendix F should not be used if any of its provisions (including the failure, correction of the failure, or the Plan Sponsor's representation) do not apply to the Plan or Plan Sponsor. In such circumstance, a VCP submission should be made in accordance with the provisions of section 11.03 and Appendix D of this revenue procedure.

(3) The failures eligible for the Streamlined Application procedure and the applicable Appendix F schedules are described as follows:

(a) Schedule 1: If the Plan Sponsor failed to adopt timely (i) interim amendments described in section 6.05(2) or (ii) amendments required to reflect the changed operation of the plan on account of the Plan Sponsor's decision to implement optional law changes described in section 6.05(3)(b) of this revenue procedure, the Plan Sponsor should submit Appendix F, Schedule 1.

(b) Schedule 2: If the Plan Sponsor failed to timely adopt amendments to comply with required legislative or regulatory

changes (other than those described in (3)(a)), the Plan Sponsor should submit Appendix F, Schedule 2.

...

However, I'll agree with the other response, that it's usually best to just do what they ask (unless what they ask for is completely unreasonable).

[Gudgergirl]

Well I managed to talk her out of it. She also wanted to charge another $375 since 2 amendments were missed but I actually found the section of EPCRS that says you only need one filing fee. It is really frustrating that the people who review EPCRS submissions seem to have so little knowledge of the EPCRS requirements.