Governmental 457 Corrections

[debbiebaze]

Is Self Correction available to a Governmental 457 Plan that has a participant that exceeded the annual deferral limit for the past 10 years?

[Belgarath]

I can't assess your likelihood of success, but see the following:

457(b) Plan Submissions to Voluntary Compliance

Some plan sponsors may, under limited circumstances, submit requests to the IRS for voluntary correction of Code Section 457(b) retirement plans (Revenue Procedure 2013-12, Section 4.09). The IRS Employee Plans Voluntary Compliance (VC) team will consider these requests on a provisional basis outside of the Employee Plans Compliance Resolution System (EPCRS). VC retains complete discretion to accept or reject these requests. If accepted, VC will issue a special closing agreement.
•VC will not consider any issue relating to the form of a written 457(b) plan document.
•Governmental plan sponsors do not have to make a submission to VC to voluntarily fix problems with their 457(b) plans.

Where to send

Plan failures related to IRC Section 457(b) should be resolved in accordance with Revenue Procedure 2013-12, Section 4.09, by completing Form 8950, Application for Voluntary Correction Program (VCP).
•Mail Form 8950 with a cover letter that describes the problem and proposed solution to the IRS address listed in the instructions.
•Don't mail your submission to the California address used for voluntary closing agreement requests related to issues that can't be addressed under the EPCRS.
•Don't submit your request to the EP Examinations or Determinations functions.

Don't submit plan document issues

We have received several submissions alleging that a written 457(b) plan was not timely adopted, or amended for some tax law or income tax regulation. VC will not issue closing agreements for these matters and will decline to process these requests and refund any payments. Plan sponsors are reminded that the remedial amendment concepts and definitions in Revenue Procedure 2007-44 do not apply to 457(b) retirement plans.

Plan sponsors who want the IRS to review their 457(b) plan document or consider any other document form issue may request a private letter ruling. See Revenue Procedure 2016-1 (or annual successor revenue procedure) for details.

Governmental plan sponsors can self-correct

Governmental plan sponsors may self-correct their 457(b) plans if they did not comply with the Code or regulations. Governmental entities have until the first day of the plan year that begins more than 180 days after the IRS notifies them of the failure to correct their plan failures (IRC Section 457(b)(6) and Treasury Regulation Section 1.457-9(a)). Considering the time governmental entities have to self-correct plan errors, they may not need to make voluntary submissions to the IRS in most cases.

If a governmental plan sponsor needs to request additional relief or simply wants IRS approval for a correction method for a non-plan document failure, they may make a submission to VC as permitted by Revenue Procedure 2013-12, Section 4.09. The plan sponsor must indicate that they are aware of the self-correction rule in IRC Section 457(b)(6) and Treasury Regulation Section 1.457-9, but still wants to proceed with a written VC application. Plan sponsors should include this statement and Form 8950, Application for Voluntary Correction Program (VCP) (instructions) with their submission.

Questions?

Send your questions about submitting a request for voluntary correction for a 457(b) retirement plan to TEGE.EP.VC@irs.gov.

[debbiebaze]

Thank you!

[Carol V. Calhoun]

The permission for governmental plans to self-correct is actually in the statute. The last sentence of section 457(b) states as follows:

A plan which is established and maintained by an employer which is described in subsection (e)(1)(A) [a state or local government employer] and which is administered in a manner which is inconsistent with the requirements of any of the preceding paragraphs shall be treated as not meeting the requirements of such paragraph as of the 1st plan year beginning more than 180 days after the date of notification by the Secretary of the inconsistency unless the employer corrects the inconsistency before the 1st day of such plan year.

Thus, you can informally self-correct, without needing to follow the procedures of EPCRS.