Nonamender

[Spodie]

Facts - Sponsor adopted an Individually Designed Profit Sharing Plan (prior document provider did not have a pre-approved plan) 10/01/2001. They received an LOD on 04/08/2003. The last digit of the EIN is 8, so the plan is in Cycle C. The Sponsor did not restate the plan for Cycle C which ended 01/31/2009. The Sponsor only timely adopted the EGTRRA Good Faith Amendment and did not timely adopt all other interim amendments. The submission period for Cycle C2 begins on 02/01/2013 and ends on 01/31/2014.

I understand that the Sponsor should file as a nonamender under VCP, Appendix F, Schedule 2 and inlcude all interim amendments. My questions are:

1. Can I restate the plan onto a pre-approved document effective 10/01/2008 even though the Sponsor did not sign an 8905 prior to 01/31/2009? (My preferred choice!)

OR

2. Is the Sponsor required to restate to an Individually Designed Plan 10/01/2006 (5-yr), include all interim amendments to current and use the most current cumulative list (2011) for preparing the document? Or restate the document twice; once effective 10/01/2006 with the 2007 list and then effective 10/01/2011 with the 2011 list?

Thank you!

[ETA Consulting LLC]

1. Can I restate the plan onto a pre-approved document effective 10/01/2008 even though the Sponsor did not sign an 8905 prior to 01/31/2009? (My preferred choice!)

Why not? I'm thinking that once a plan has failed to timely amend, then it is an open game where amending to a prototype document that obtained an opinion letter by the time the document was due to be restated would suffice. Even if it didn't, the EGTRRA restatements could be retroatively adopted back to January 1, 2002. You're really not amending any of the plan's language, you're just restating to a document containing all the required provisions. So, I'm with you on this one.

Good Luck!

[Spodie]

1. Can I restate the plan onto a pre-approved document effective 10/01/2008 even though the Sponsor did not sign an 8905 prior to 01/31/2009? (My preferred choice!)

Why not? I'm thinking that once a plan has failed to timely amend, then it is an open game where amending to a prototype document that obtained an opinion letter by the time the document was due to be restated would suffice. Even if it didn't, the EGTRRA restatements could be retroatively adopted back to January 1, 2002. You're really not amending any of the plan's language, you're just restating to a document containing all the required provisions. So, I'm with you on this one.

Good Luck!

Thank you!