403(b) Plan Correction-Failure to Establish ERISA Protocols

[oldman]

We have a client that adopted a Non-ERISA 403(b) plan in 2011. Employer has now advised us that their intent was to establish plan subject to ERISA. Understanding that there is a document failure in the absence of provisions relating to ERISA, as well as a failure to perform non-discrimination testing and 5500 reporting, can the plan be amended retroactive to 2011 to address the ERISA omission?

[mbozek]

We have a client that adopted a Non-ERISA 403(b) plan in 2011. Employer has now advised us that their intent was to establish plan subject to ERISA. Understanding that there is a document failure in the absence of provisions relating to ERISA, as well as a failure to perform non-discrimination testing and 5500 reporting, can the plan be amended retroactive to 2011 to address the ERISA omission?

Q was this a plan where employer made contributions in addition to employee salary reductions in 2011?

As a regulatory matter plan can be amended to comply with ERISA back to 2011.

[oldman]

We have a client that adopted a Non-ERISA 403(b) plan in 2011. Employer has now advised us that their intent was to establish plan subject to ERISA. Understanding that there is a document failure in the absence of provisions relating to ERISA, as well as a failure to perform non-discrimination testing and 5500 reporting, can the plan be amended retroactive to 2011 to address the ERISA omission?

Q was this a plan where employer made contributions in addition to employee salary reductions in 2011?

As a regulatory matter plan can be amended to comply with ERISA back to 2011.

Employer contributions were made to the plan in 2011

[oldman]

Employer contributions were made to the plan in 2011.

[mbozek]

Employer contributions were made to the plan in 2011.

The plan must be amended retroactivley to include all of the ERISA provisions in 2011. Also need to file 5500.