Individually Designed Plan Restatement Requirement?

[kmhaab]

I need a sanity check - Is an individually designed 401(K) plan still required to be restated every 6 years? If it has been timely amended as required?

I understand the requirement to request a new determination letter has been eliminated and my interpretation was the restatement requirement was eliminated as well, but a client's record keeper is advising them they must restate. 

[Peter Gulia]

There never was a public-law requirement to get the IRS’s determination.

Does the service provider say ERISA § 402 (or something else in ERISA’s title I) requires an integrated written plan?

Or does it say furnishing an integrated written plan is an obligation or condition under the service agreement.

If one is eligible and applies for the IRS’s determination, “a restated document is generally required for an individually designed plan’s determination letter submission.”  https://www.irs.gov/retirement-plans/determination-letters-for-individually-designed-retirement-plans-faqs

[G8Rs]

As pointed out, restatements are never required for qualification. But, IRS pre-proved plans must be restated every 6 years if you want reliance on the IRS approval letter. Individually designed plans used to be on a 5 year restatement cycle. But that was eliminated years ago when the IRS cut back the determination letter program. So, I think restating an IDP is now very  risky.  If you received an initial DL on the plan, then you’d only want to adopt tack-on amendments. If you restate the plan, then you can’t get a new DL and you therefore risk losing reliance on those provisions that had been previously approved and that were not affected by the tack-on amendments. 

[Peter Gulia]

Without expressing any view about the IRS starting or discontinuing a regime for determination letters:

Isn’t it sad that a change sets up an incentive for an employer to use a set of inconvenient-to-read documents instead of stating provisions in one document?

[Luke Bailey]

3 hours ago, G8Rs said:

So, I think restating an IDP is now very  risky.  If you received an initial DL on the plan, then you’d only want to adopt tack-on amendments. If you restate the plan, then you can’t get a new DL and you therefore risk losing reliance on those provisions that had been previously approved and that were not affected by the tack-on amendments.

I'll second that.

[Mike Preston]

45 minutes ago, Luke Bailey said:

I'll second that.

I will not second that. I don't believe you lose reliance on a provision that isn't modified. If you really want a conformed document you can create one for administrative purposes.

[Luke Bailey]

17 hours ago, Mike Preston said:

I don't believe you lose reliance on a provision that isn't modified.

Accurate as stated, but with a restatement it will be a more arduous, and at least to some extent more error-prone task to see what you've changed. Will definitely be harder to explain to an employee plans agent.

17 hours ago, Mike Preston said:

If you really want a conformed document you can create one for administrative purposes.

Right. So I would recommend just doing add-on amendments forever, no restatement, and then the unofficial "working copy" that looks like a restatement, but is not executed, is what you can use to operate the plan.