Plan Amendment not executed but client followed "Updated" SPD

[Guest wickedp1]

Hello everyone,

I have quite the mess on my hands. We recently took over the administration of a client that has an executed plan document from 2010 with age 21 / 1 Years of Service and semi-annual entry dates for all contributions. Before the beginning of 2012, the client asked for an amendment to be drafted that would reduce the eligibility requirement for deferrals to three months of service with monthly entry dates. Unfortunately, somehow this amendment slipped through the cracks at the client's office and was never executed.

Fast forward to 2014. The client informs us that they have been providing a Summary Plan Description with the "unexecuted" eligibility change to new employees.

My question is in relation to the EPCRS self correction method of retroactive amendments. Let's say out of the 55 people hired during 2012 and 2013, only seven decided to defer. Do we draft a retroactive amendment to allow just the seven employees into the plan, or are we forced to let in all 55 people, provided they all received the incorrect SPD based on the provisions set forth in the unexecuted amendment?

My gut says to let all of the employees in, but am unsure whether the 48 employees that did not defer would be considered as being a true "early inclusion." All of the examples I have reviewed (IRS website, EPCRS, etc.) strictly address early inclusion errors where employees actually deferred or received employer contributions, and do not address where employees were just misinformed on the actual plan terms.

Any thoughts to help me wade through this mess is much appreciated.

Thanks!

- WickedP

[BW]

Unless the 7 are in their own identifiable group I'd amend to allow everyone.

You may also want to consider the impacts on coverage and other NDT testing.

[Peter Gulia]

Could the summary plan description be one of "the documents and instruments governing the plan" within the meaning of ERISA section 404(a)(1)(D) and also a part of "a definite written program and arrangement which is communicated to the employees and which is established and maintained by an employer" within the meaning of 26 C.F.R. 1.401-1(a)(2)?

[jpod]

Isn't it likely that the SPD says that if there is a conflict between the Plan and the SPD the Plan controls?