plan document missing-VCP issue

The background: Solo-k client is moving assets from one Investment Company to another.  The new Investment Company requires that a client use their AA (for which we provide the service.).    So, our firm was asked to restate the plan onto our document.  Per the advisor, the plan was effective 1/1/2014. 

We always asked for the prior AA for compliance and mapping purposes.  Well, client cannot provide a document - no AA, no SPD, no resolution adopting a plan, nothing and asked that we just use our default provisions for the restatement.    This is clearly a VCP issue.  Client has asked prior Investment Company for the document, but the client claims the Investment Company will not provide any data (sounds fishy to me...) Has anyone had any experience with filing under VCP for what would be now an new plan effective 1/1/14 and basically asking relief for it not being signed until 2019? 

Any guidance would be greatly appreciated.

Not sure VCP is available if you have absolutely NOTHING, although statements from a recognized Investment Company (whatever you mean by that terminology) that indicate a 401(a) plan is in existence might be enough.  I would keep probing with the prior Investment Company and the advisor/broker and anyone else who may have helped the client set up a plan.  Again, if there are statements showing the existence of a plan it is very hard to believe that there isn't at least a signed AA.

My own view is that this is fairly ridiculous--I'd send a strongly worded letter from an ERISA attorney asking for the document saying that the client's prior contributions (and deductions) as well as tax-exempt status overall affecting all the participants could be hanging in the balance.

No plan document means no plan in existence.

Not something I've done, but it's been discussed here before:

https://benefitslink.com/boards/index.php?/topic/59412-person-has-no-document/&tab=comments#comment-262846

With the timing in your case, you might be missing two documents, plus some interim amendments.  PPA Opinion letters were dated 3/31/2014.  That doesn't necessarily mean the PPA document was available to be used on that date.  It may have been set up using an EGTRRA document, which would have needed to be restated by 4/30/2016.

This might be a good one to do as an anonymous filing if they can't find the original document.

I will leave aside the possible liability issues.

This is ultimately a question of fact. Were there plan documents, or not? If yes, were they signed, or not? If, for example, there were signed documents, but they were lost or destroyed, then in the "if a tree falls in the forest and no one hears it did it really happen" sense (spoiler alert: it did happen), there was a plan. If the IRS challenged you, you would have an uphill battle, since it is the taxpayer's responsibility to keep records. But in theory, if the IRS believed you (e.g., you had other proof), then even they would agree you had a plan, although proving what it said would be a whole other set of issues.

I have convinced IRS employee plans agents that unsigned documents were adopted, e.g. where it was a small corporation and we could show that all the board members met in a room and intended to adopt the document at the same time. I have had DOL tell me in the context of a medium-sized company that went bankrupt overnight (but that had contributed all deferrals to the K plan), that they didn't care of the plan document was signed or not. (It wasn't.)

The most fundamental thing is whether a trust was created for the plan's assets. If the "investment company" had the assets in an account that was clearly in the plan's name, and even better if there is a trust or custodial agreement signed by the institution holding the assets, you have a start.

One thing that won't work, I don't think, would be to submit a VCP saying that the employer intended to adopt a plan, and relied on the investment company, but no plan was adopted. I think they will not give you relief then. Not like a nonamender. My recollection is that IRS says something to that effect on its  website.

cpc0506, if you suggest the plan’s sponsor search for its written plan, consider these possibilities:

An investment issuer or custodian might never have had possession of its customer’s written plan, nor an obligation to cause its account holder to make one.

Some financial-services businesses might set up an account based on an applicant’s statements, with little checking on the accuracy of those statements.

In my experience, even organizations with reasonable know-your-customer procedures might not detect that a customer lacks a written plan.

Were any Forms 5500 needed/filed.  Who prepared them, if so.  Might be a place to look.

I would start the plan document search with the person/company who helped him set up the plan.  That may or may not be the investment company.  The pre-approved document sponsor is supposed to keep track of who is using their document, so I would expect them to have a copy of a signed document.  If the investment company was not involved in preparing the plan document, I would not expect them to have a copy of it unless they are a Trustee.

If a service provider has information, but refuses to send it, it's usually a matter of unpaid fees.

14 hours ago, imchipbrown said:

Were any Forms 5500 needed/filed.  Who prepared them, if so.  Might be a place to look.

Client (solo-k) claims assets have never exceeded $250,000 so no Forms 5500-EZ

Unless you can successfully resolve the issue of whether there was a plan, then I would make sure not to commingle old funds with new, i.e., start a new plan for new funds. Work out what to do with old based on facts and circumstances and the law.