Can a Board Resolution Replace a Formal Plan Termination Amendment for a DB plan?

I haven’t seen it personally but I’ve heard from attorneys on occasion that it can be justifiable.

Were all other necessary actions taken that would normally be required for a plan termination? For example, was the plan amended to be up-to-date with changes in law and regulations, and were 204(h) notices and NOITs distributed? If all of that is clean then I wouldn’t worry too much about it.

1 hour ago, Micks said:

We are reviewing documentation ...

The answer might depend on who is "We".   If you are the plan/plan sponsor attorney, then the PA can express an opinion but ultimately should defer to legal advice.  That sounds like a great summary: the attorney gets to decide.

Can it set the termination date? Possibly according to some. Can it replace the amendment to bring the plan up to date with all the laws/regs? I don’t see how. 
 

But get counsel involved. 

Beyond others’ observations:

Many recordkeepers and TPAs warn that the service provider does not give tax or other legal advice, or at least warn that a service recipient should not rely on the provider’s advice.

While many people look on the warnings as boilerplate one ignores, when things go wrong courts have held that a not-advice warning negates a claim that incorrect or incomplete advice was a breach of contract or negligence.

This is not advice to anyone.

We have had many plan terminations over the decades and a number of them in recent years and nearly every one was with only a resolution and without a formal amendment saying "the plan is terminated effective X" - and many of these were submitted to IRS and received d-letters. Yes, there is an amendment for compliance and any design changes related to the termination, and all the other compliance (PBGC especially and IRS) items that are part of the process. Regardless, whether resolution with or without a formal "the plan is terminated" amendment, unless you properly complete the process within your required time constraints, your plan is not terminated.

Personally, I do not think a plan termination is a plan provision, it is an event/transaction/process, and a resolution by the employer stating their intent to engage in such has been sufficient during my 40+ years in the industry. That said, I do not begrudge any one wanting a formal amendment to state the plan is terminated and have accommodated when requested, I have not found such to be necessary.

I too have seen a range of different ways to document a plan's discontinuance, termination, and final distribution.

But the key is for a decision-maker to get advice from an adviser responsible to the decision-maker.