Nonamender Question

[elmobob14]

If a plan hasn't been amended for GUST and EGTRRA--using App. C, Part II Sch. 2--must a filer send (1) a GUST amendment and an EGTRRA amendment (i.e., two amendments), each retroactive to the applicable effective date, or (2) may the filer simply send a restatement with everything? Thanks!

[Rai401k]

I'm not sure if this is going to help, but we submitted a document to VCP for a client that never restated for EGTRRA. They did have a GUST doc and GUST determination letter.

When we took over the plan we restated for EGTRRA and then submitted the EGTRRA document along with all the required amendments (PPA, HEART, 415, etc.) and sent the VCP submission with a copy of the GUST determination letter. After we mailed it in, I decided to call the IRS....to my surprise the agent I got on the phone was very knowledgeable about the process . He said although he doesn't think it will be a problem with just the determination letter he believes I should have included the GUST information with the submission. He went on to say that as long as the submission includes the VCP fee and you have attempted to put together an accurate submission they will not reject it.

The point is i think you should include GUST and EGTRRA BUT if you don't submit everything they need they will most likely come back to you for what they are looking for.

[John Feldt ERPA CPC QPA]

If they never restated for GUST, then I would prepare a GUST document and an EGTRRA document and have them sign both now. Heck, why not add in a PPA document as well if it's a DC plan? Then submit both the GUST and EGTRRA documents to the IRS. Include the interim amendments that apply after the EGTRRA document.

[elmobob14]

Thanks guys. I talked to someone at the IRS and they said that separate amendments, retroactively amended, are required. Time to track down that old GUST document.

[Flyboyjohn]

FWIW we had one approved where we submitted just the GUST and EGTRRA Adoption Agreements, Basic Plan Documents and Opinion Letters (did not submit all the interim amendments before and after the EGTRRA restatement).

Long way of saying I'm not sure the interim amendments are required.

[Kevin C]

The protections you get by filing under VCP ONLY apply to the missed amendments included in the submission. The IRS can still take action against the plan sponsor for any late amendments that are not included in the submission. So, while you are not required to include all late amendments, it is a really good idea to include all of them.

[John Feldt ERPA CPC QPA]

If you timely adopted the interim amendments after EGTRRA, then your VCP statement does not need to mention them and there is no need to submit them. Your IRS stamp of approval from the VCP filing will only give reliance that the employer has finally adopted the items listed in the application, and thus the "oops, I'm late!" issue is resolved. The IRS does not review the amendment language submitted under VCP. So, if the PPA amendment, the 415 amendment, and the HEART/WRERA amendments were problems (not timely adopted), then I suggest they be submitted.

However, I could be wrong. Perhaps the execution of a pre-approved EGTRRA document (albeit after 4/30/2010) also provides the employer with retroactive "reliance" for each good faith amendment executed by the document sponsor, making them somehow "timely", but I am not currently convinced of that.

[KJohnson]

I had one VCP submission where I submitted GUST, EGTRRA, and all post EGTRRA interim amendments. I wondered about the interim amendments between GUST and EGTRRA and was told by the reviewer that they did not need to be submitted because the EGTRRA document would have incorporated those interim amendments --good faith EGTRRA, 401(a)(9), cash outs, final (k) and (m) etc.-- with the correct retroactive effective dates and that was good enough. I would, of course, verify that for any future submission. Also those interim amendments are not on Appendix C Part II Schedule II (but there is an "other" box).

[John Feldt ERPA CPC QPA]

Yes, I agree that the EGTRRA document takes care of all of the GUST-to-EGTRRA interim amendments, so you don't need to adopt those as it could contradict the language that got approved in the EGTRRA document. The VCP submission should be sure to address any interim amendments not handled in the EGTRRA restatement (its cumulative list) that were not timely adopted. That is, unless you are submitting a PPA restatement as the plan's correction for those missed interim amendments, then just submit the PPA document in lieu of those interim amendments.

[Gudgergirl]

In the case of a plan that has not been amended since GUST, would you use Schedule 1, Schedule 2 or both to report the non-amender failures?

[John Feldt ERPA CPC QPA]

I think both apply - one for the missed EGTRRA restatement, and another for the interim amendments needed after the EGTRRA restatement.

[Gudgergirl]

Thanks