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need to restate before plan termination?

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I was explaining the restatement process to a plan sponsor with an ERISA 403b plan, and the director said that he intends to terminate the plan at the end of 2017 anyway (there are only 5 participants, all employed, so assume payouts won't be a problem), so he won't need to restate onto the pre-approved document.


In 401k-land, plan documents have to be up-to-date as of the date of the plan termination.  How would that translate here?  Any thoughts?  Thanks.

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Did the 403(b) plan adopt all "interim" amendments that the law required after executing its 2009 document (it does have a 2009 document, right)?

Some providers did not offer such "interim" amendments, since there technically was no remedial amendment period yet, thus no "interim" period for 403(b) plans. If that was the approach, then you either restate before termination or adopt such language prior to termination.

If the plan is up-to-date with all language requirements, then they are in good faith compliance and would not need to restate. But good faith compliance is not the same as having IRS written approval. Doing a restatement now would stop the IRS from scrutinizing the written plan document later - if the plan gets an IRS audit later, show them your IRS letter to prevent such scrutiny. Without a restatement, they could hunt the document for any language they don't like and argue that the plan was not in compliance.

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A question came up re a post termination adoption. The plan already terminated in June (note that this is AFTER the date when pre-approved language became available). Let's further assume that the document, done in 2009 as so many were, has only had a HEART/WRERA amendment done - nothing else. Any reason not to adopt an updated document post termination, retroactive to 2010? Curious as to opinions on this.

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  • 6 months later...

Does any one have a site for confirmation that a terminating 403(b) plan must restate it's plan for the 2020 restatement cycle? I found information on PPA which stated you had to restate before terminating the Plan, information on what to do with a DB plan, but I can't find a site on if you are required to restate your 403(b) for the 2020 cycle.

Theoretically, it would seem to make sense and it makes John's point, but I can't find anything that explicitly tells me that.

Specifically, in my case, all interim amendments, HEART, WRERA, EGTRRA, and PPA were completed. Assuming voluntary amendments thereafter that are not operational defects, what say you on having to do a restatement and your site.




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  • 2 weeks later...

Reason for restatement is the IRS Letter.  The plan sponsor will not have one if they don't restate.  

Patricia Neal Jensen, JD

Vice President and Nonprofit Practice Leader

|Future Plan, an Ascensus Company

21031 Ventura Blvd., 12th Floor

Woodland Hills, CA 91364

E patricia.jensen@futureplan.com

P 949-325-6727

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