403(b) nonamender

I'm struggling a bit with the proper use of the VCP submission forms. The 14568-B doesn't seem to quite "fit" a 403(b) plan that had a written plan document, yet failed to restate by the extended deadline this summer. https://www.irs.gov/pub/irs-pdf/f14568b.pdf

Has anyone else submitted one of these yet, and if so, with any results? It appears to me that you'd have to check Section I(A) last option (other). "B" does not appear to apply, and Section II(B) doesn't appear to apply either. 

Looks like you'd check the Section 1(A), describe them as a nonamender, and include signed updated docs and any Amendments. Am I missing something obvious here?

Thanks.

HIya.  Maybe I'm missing something (and if I am I know the people here will correct me) but I thought that the IRS was not accepting 403(b) non-amenders in EPCRS, but there is an alternative.   Here is what Robert Richter (ASPPA)had to say on a recent webcast:  "Even though it is not explicitly stated in Rev. Proc. 2019-19, a missed 403(b) restatement can be corrected using SCP if the conditions are satisfied. It is not as clear regarding DB plans and other qualified plans. We have indications from the IRS that it is available, but the revenue procedure appears to support those intentions. The ARA has raised the issue with the IRS, and we hope the IRS will confirm, in a more explicit way, that SCP can be used for the missed restatement of a qualified plan."

Thanks for your comment - just getting back to this. It does appear (although it seems a little odd, based on past history) that a 403(b) Plan Document Failure (as defined in 5.01(2)(a)(i) and (ii), as well as 5.02(2)(a)) is eligible for SCP within the normal 2-year period for significant violations, under 9.01 and 9.02(1). 

Has anyone actually heard the IRS comment on this, even unofficially? I'm conditioned to be suspicious that this is really that easy...

Belgarath and StephenD, I now have this issue as well. I guess the missing link (i.e., what the guidance does not expressly state) is that if you adopted a 403(b) document, e.g. an individually designed plan, by end of 2009, but the sponsor failed to adopt a preapproved plan by March 31, 2020, and it's a calendar year plan, then you have until December 31, 2022 to adopt a preapproved plan and correct the plan document failure under SCP. Is that the way you are reading it now?

Looks that way, although it still feels strange. Perhaps if the IRS issues an updated Rev. Proc. for EPCRS they will address this a bit more specifically.

In some recent years, practitioners have had a few successes in presenting an issue with enough time for IRS people to work on it with a view to an announcement during a late February Joint TE/GE Council Employee Plans meeting.  https://tegecouncil.org/

Although it’s likely too late for an issue presented now to get an announcement in 2021’s meeting on February 25-26, you might get some “seminar law” remarks, and perhaps some attention for something more formal in early 2022.

Good points, Belgarath and Peter. Thanks.

Does anyone have any more recent experience with this issue?

So, back to the future. It seems like under a combination of the previous guidance, and the IRS Notice 2023-43, it would be possible for an IRS pre-approved 403(b) Cycle 1 nonamender - a public school system -  (but one who had previously adopted an appropriate document for the original 2009 deadline) to use SCP to adopt that Cycle 1 document, with appropriate amendments for Hardship and CARES? Or, do you interpret that VCP is required? I'm inclined toward the former, but it does seem a bit nebulous.

If you’re explaining to a public-school employer a choice between a correction submission that might involve an IRS user fee and a representative’s fee and a self-correction that might involve neither, consider that a public-school employer often lacks a budget to pay, or even legal authority to incur, an expense beyond the incidental expense of determining employees’ elected contributions and remitting them to the § 403(b) insurers and custodians.

This is not advice to anyone.

Thanks Peter. In this case, there are matching contributions.