Late 436 amendment - CONFUSED!!!!

[t.haley]

Employer with volume submitter DB plan (Corbel individually designed volume submitter plan) did not sign 436 amendment by 12/31/13. Want to correct using VCP with new Form 8950 and Appendix C. Having trouble determining whether we file a Schedule 1 or Schedule 2. How do I determine whether the "corrective amendment was adopted before the expiration of the plan's extended remedial amendment period (as determined under Rev. Proc. 2007-44) for that amendment"? Since the IRS extended the deadline for the adoption of the 436 amendment twice, what is the "extended remedial amendment period" for the 436 amendment?

[Kevin C]

First of all, have you checked with Corbel to see if an employer signature was necessary? Most VS documents allow the document sponsor to amend on behalf of the adopting employers. If that was done, an employer signature would only be needed if the employer wanted to elect something other than the default provisions of the amendment.

If the amendment is late, the extended remedial amendment period is the end of the 6 year cycle that the due date for the amendment falls in. You should be able to file using Schedule 1

Rev. Proc 2007-44, Section 5.03 This section 5.03 extends the remedial amendment period for the disqualifying provisions described below as follows:

(1) The remedial amendment period for any disqualifying provision described in § 1.401(b)-1(b)(1) that would otherwise apply under § 1.401(b)-1 is extended to the end of the applicable remedial amendment cycle described in section 6.01 that includes the date on which the remedial amendment period would otherwise end if the disqualifying provision was a provision of, or absence of a provision from, a new plan and the plan was intended, in good faith, to be qualified. The same extension of the remedial amendment period applies to a disqualifying provision (including a disqualifying provision described in section 5.01) in the case where the employer adopts an amendment to an existing plan (without regard to whether that amendment was required to be adopted) if the amendment was adopted timely and in good faith with the intent of maintaining the qualified status of the plan. The Service will make the final determination in all cases as to whether a new plan or an amendment was adopted with the good faith intention of being qualified or maintaining qualified status.

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