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Missing restatements since 1986


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An accountant just presented a very old problem.  His client adopted an HR-10 prototype with Equitable in 1986 when purchasing an annuity and life insurance.  Contributions/premium payments have been made every year, and Form 5500EZ has been filed.  But there have been no document updates.  The only thing they can find is the original adoption agreement...not even the basic plan document is available.  The insurance agent has been in contact with Equitable but nothing has surfaced.  Equitable has kept the document up to date with IRS but apparently the client hasn't adopted any restatements.

If they go into VCP, will the IRS require all the missing restatements?  Form 14568-B Schedule 2 only lists the EGTRRA, PPA and Cycle 3 documents in the identification of failures (but does have a later catch-all section for "late amender failures not listed above").  I'm trying to remember back to 1986 -- would a document adopted then have been compliant with TEFRA/DEFRA/REA or did those documents come on the scene later?  Obviously the TRA'86 documents would have been later.  I'm trying to figure out how many restatements are missing.

Thanks to all.

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Other BenefitsLink neighbors might help you reconstruct the many amendments and restatements the plan’s sponsor ought to have done over the past 37 years.

Whichever person is evaluating whether to pursue corrections and by which means might want to evaluate whether the plan was administered according to implied provisions that would have met Internal Revenue Code § 401(a)’s conditions for treating the plan as tax-qualified.

Also, if the accountant knew—or, in the exercise of the care his profession requires, ought to have known—that plan amendments were needed but not done, he might want his lawyer’s advice about the accountant’s professional-conduct responsibilities regarding tax returns and tax-information returns, and about liability exposures.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania



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Thank you Peter.  There has certainly been a lot of "benign neglect" on this case.  This has always been a one-person plan with the purpose of funding the annuity and life insurance products.  This is what happens when everyone looks to cut costs (and corners) by not retaining a pension expert to design and assure continuing compliance even though it appears "simple" on the surface. 

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20 hours ago, cathyw said:

Equitable has kept the document up to date with IRS but apparently the client hasn't adopted any restatements.

If this is the case, then Equitable should be able to provide all (blank) documents and interim amendments since the original document that was adopted. Might be fees involved, but that's the least of the problems. The IRS is usually pretty reasonable on these one-person plans, (I once had an IRS auditor in one of these situations just make the client adopt a current document, and closed the audit!) but I'd also be prepared to prove compliance with incidental limits, etc.

You could also try the pre-submission conference - see Section 10 in RP 2021-30. Might end up saving you and your client time and money. Good luck!

"You never know where the wheel may go..."

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This may have changed recently to be more consistent, but my limited experience the last few years is that whether or not all the interim documents and amendments are needed seems to be up to the discretion of the assigned IRS agent for the VCP review. 

I have had some just take the updated document and run with it, and other who wanted the plan to adopt everything in between (EGTRRA, GUST, TEFRA etc). In those cases it was much more work to create and provide those intervening restatements. 

I'm a stranger on the internet. Nothing I write is tax or legal advice. 

I'd like a witty saying here, but I don't have any. When in doubt, what does the plan document say?

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OP should reach out to Equitable (product area).  This document has been updated as required since 1986 (which may have been the TEFRA, DEFRA REA version depending upon the time).  Blank copies are available to those clients who "misplaced" their original copies.

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Dear Cathyw,

My practice when this occurs is to recommend using the VCP rather than wait for an IRS audit, which I admit is quite rare.  Before doing the filing, I seek all the interim amendments, which is usually feasible when the original document provider is still in place.  If the provider has changed, it is often not feasible to get all the documents. In such case I would include an explanation of the efforts that were made in the filing.  Katie is correct different reviewers require different good faith efforts, but my sense is the preference is for all interim amendments, so I prefer to present to frame discussion with our good faith efforts rather than let the reviewer frame that discussion.

I would not do a pre-submission conference, because they are not binding, so you will not learn whether the reviewer assigned to the VCP filing will demand all or some of the amendments or the requisite due diligence.  Pre-submission conferences are most appropriate when you want to know whether a VCP submission will be entertained, not when you are more interested in the precise terms of the required correction.

Good luck.


Best wishes,


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