name of plan "401K"

[thepensionmaven]

We just took over the admin of a profit sharing plan that had been named "XYZ, PC 401K Profit Sharing Plan" SHNE, with the "discretionary" 3% (maybe) notice.

The plan apparently was not meant to be set up as a 401K, there have never been any employee contributions, the previous TPA prepared the document as a 401(k) with the discretionary SHNE "maybe" notice last year.

Since there have never been any employee contributions, is it possible to amend the plan currently to a profit sharing plan and not a 401(k) and remove the references to the 401K portion, which never existed in the first place?

Thoughts?

[QDROphile]

What and when were the formalities of adoption of the substantive provisions for elective deferrals in the plan document, and the effective date? What were the relevant communications to employees?

For example, was the document (with the elective deferral provisions) adopted in 2015 with a January 1 effective date with a notice issued to participants that described elective deferrals?

"Lack of intent" on the part of the adopter is meaningless in light of action and documents that clearly and loudly speak otherwise in such a monumental way, although the plan might prevail upon the IRS for grace under VCP.

If participants were given reasonable opportunity to elect contributions but all failed or declined to defer, the plan can be amended prospectively to remove the elective deferral provisions.

[BG5150]

Was the Notice given out?

Did the Sponsor not see the part in the Notice about deferrals and speak up?