Plan document Det Letter submission gone bad

[Santo Gold]

Any thoughts as to how to proceed on this are appreciated.

401(k) Plan was started in 2003. The plan used a national volume submitter document that has an IRS advisory/opinion letter.

The document was timely amended and then in early 2010, restated to an EGTRRA. They were advised to file for a determination letter with the EGTRRA document.

After a years review, the IRS reviewer noticed that they do not have a signed copy of their GUST (which was also their initial) plan document. No one can locate the signature pages for this document, neither are there any Minutes or a Resolution from 2003 showing that the plan was actually adopted.

What options do they have now:

I think they need to go through VCP as that would be the best remedy. However, in regard to the determination letter filing, what do we do now? The agent cannot issue a letter without the signed pages. Do we just ask that the D. Letter request be withdrawn and the IRS will let it go at that? Or do we now tie the VCP filing to the det. letter request?

Alternatively, has anyone had any luck with drafting a letter from the current board stating that it was the Sponsor’s intent to adopt the amendment at the time, that the signed document cannot be located, and that the plan was operated in accordance with it since then.

Thanks

[ETA Consulting LLC]

When it's something that clear cut, where the document is there but unsigned, the IRS should issue a closing agreement right there (it may run about $3,000), and close the issue and issue the letter.

They shouldn't require a separate filing since it is a determination letter process and they know what the issue is.

I had one before where it was a prior interim amendment that did not exist when we filed for a determination letter. They just executed a closing agreement (hit the employer for around $750) and called it a day.

Good Luck!