Conditions for Corrective 11g Amendment

[kgr12]

Two of the "conditions" established in 1.401(a)(4)-11(g)(3)(vi) for doing a correcitve amendment are:

(A) that it not be part of a pattern of amendments to correct repeated failures; and

(B) that the correction remain in effect until the end of the first plan year after "the date of the amendment."

With respect to (A), at what point does it become a pattern?

With respect to (B), what is the date of the amendment - its effective date or the adoption date? It seems to me that depending on how you answer that, the amendment would remain in effect for either 2 years or 3 years (e.g., in 2013, a corrective amendment is timely adopted with respect to the 2012 plan year; if that "date of the amendment" is the date it is effective, it would have to remain in effect for 2012 and 2013, and if it's the date adopted, it would have to remain in effect for 2012, 2013 and 2014).

[Belgarath]

As to when it is a "pattern" - I don't think there is a bright line standard. Good old facts and circumstances.

As to the second question - first, is your question regarding a BRF? 'Cause I think the section you are citing refers only to a BRF correction. (g)(3)(i) says that you must satisfy the requirements of (g)(3)(ii) through (vii) "..whichever are applicable." (g)(3)(vi) refers specifically to a BRF correction.

So assuming you are talking about a BRF, I'd vote for it having to run through 2014. The regulation says after the "date" of the amendment, not the "effective date" of the amendment.

Reasonable people might well disagree with my interpretation.

[kgr12]

Belgarath, thanks for pointing that out about that provision applying only to BRFs. It's been awhile since I looked at/thought about these regs, and I completely glossed over the distinction.

The context that drove the question was a 410(b) benefitting under the plan failure arising out of an employment on last day of plan year requirement, which I suppose goes to contributions and benefits rather than BRFs.

If that's correct, I suppose it's also correct that one could correct for such a failure each year/any year as necessary, and the correction need only be made applicable to that year?