Merger Amendments - Prototype

[Guest shaul]

Assume a couple of prototype plans were merged into a Cycle E individually-designed 401(k) plan in 2007. As part of the January 31, 2011 Cycle E filing of the individually-designed plan, certain amendments for the merged prototypes (such as the 401(a)(9) amendment and 401(a)(31)(B) amendment) should have been submitted as well, but could not be located, although the related prototype plan document and opinion letter were submitted. Assuming the IRS requests the amendments, can it be argued that the prototype sponsor had the authority to adopt required off-the-shelf amendments for employers, and that the filer should thus not be required to submit the amendments? I assume this is not a wining argument, since the IRS would want to know whether the default version of the amendment was adopted or not, but wondered if anyone had run across this issue.

Thanks in advance.

[John Feldt ERPA CPC QPA]

From my experience with prototypes and submissions to the IRS, I would not be too concerned about it. In the meantime, you sould be able to directly contact the prototype sponsor and ask them for their generic copy of the amendments that they adopted on behalf of plan sponsors using their prototype.

[Guest shaul]

From my experience with prototypes and submissions to the IRS, I would not be too concerned about it. In the meantime, you sould be able to directly contact the prototype sponsor and ask them for their generic copy of the amendments that they adopted on behalf of plan sponsors using their prototype.

Thanks.