Non-Amender

[oldman]

ERISA 403(b) plan document adopted effective 7/1/97. Plan was never updated with GUST, EGTRRA, and PPA. ER now adopting a compliant document, effective 7/1/12. Are they consider a non-amender for the period prior to 7/1/12?

[QDROphile]

What would "non-amender" mean to you or the plan?

[mbozek]

ERISA 403(b) plan document adopted effective 7/1/97. Plan was never updated with GUST, EGTRRA, and PPA. ER now adopting a compliant document, effective 7/1/12. Are they consider a non-amender for the period prior to 7/1/12?

Why 7/1/12 instead of 1/1/09 effective date of the IRS regs?

[John Feldt ERPA CPC QPA]

The IRS has not updated EPCRS for correcting a 403(b) plan for missing the 2009 deadline to have a plan document that complies with the written plan requirements that were part of the final 403(b) regulations. There is no remedial amendment period for a 403(b) plan yet - the IRS has not yet released anything in that regard either. Thus, the terms "GUST restatement" and "EGTRRA restatement" have little real meaning for a 403(b) plan.

Regarding PPA, HEART, WRERA, etc. - I don't recall seeing any guidance from the IRS on the amendment deadline for a 403(b) plan (the statute has its own deadline that the IRS sometimes extends), so if you missed the statute deadline, there is no correction option under EPCRS for that either (so amend now).

[401 Chaos]

I want to be sure I understand the current position and have not missed any later guidance or better approaches. Client has 403(b) plan for which they adopted an updated prototype document in December 2008. The client, however, failed to adopt the applicable HEART amendments by the December 31, 2010 deadline. Is the best course of action (only real course of action) at this point to adopt the missed amendment without other corrective actions. From this and other posts it doesn't sound as if EPCRS / VCP is a possibility for 403(b) nonamenders at this point. In the absence of such corrective procedures, is there anything else a late amender should do to protect themselves?

[Everett Moreland]

Search the document at the following link for "remedial" and you will discover that the HEART act amendment is not late:

http://www.irs.gov/pub/irs-tege/403b_issue...resentation.pdf

[John Feldt ERPA CPC QPA]

They could adopt an amendment now that reflects their current operation as it relates to HEART, or they can wait until the IRS truly defines an actual remedial amendment period for the 403(b) world and amend/restate by that deadline.

I think it was three years ago that we were told guidance would be issued soon for this, so don't hold your breath!

[401 Chaos]

Thanks to both of you. Definitely not holding our breath or waiting on the guidance to fix. Guess my real question may be since there is no remedial amendment period, is there an actual violation for failing to have adopted HEART by December 31, 2010 such that they might want to carry that along and voluntarily fix / seek approval if and when additional EPCRS guidance is released to cover 403(b) document issues or can they just adopt the amendment now and forget about it? Thanks.

[John Feldt ERPA CPC QPA]

The IRS has not issued guidance regarding interim amendment requirements for 403(b) plans. The only IRS guidance for 403(b) plan language is that employers have a good faith attempt to comply with the final 403(b) regulations. Perhaps when this remedial amendment guidance is released soon, they will let us know about the interim amendment deadline issue that you ask.