Most plans today use “pre-approved” plan documents that the IRS reviews on 6-year recurring amendment cycles. To maintain a plan's uninterrupted reliance on its opinion letter, an employer must adopt each applicable cycle's restatement by the due date for that cycle. The due date for defined contribution plans such as 401(k) plans was July 31, 2022. For defined benefit plans, that deadline was July 31, 2020, and for 403(b) Plans, the initial deadline to adopt a pre-approved plan was also July 31, 2020.
In guidance issued by the IRS in May of 2022 relating to defined benefit and 403(b) plans, the IRS made it clear that a failure to timely adopt a restated pre-approved document does not, in and of itself, mean the plan is no longer qualified. It has simply lost its ability to rely on the IRS’s opinion letter for that pre-approved document and is now an individually designed plan. But the IRS also made it clear that such plans may still be qualified and if not, may still be able to self-correct a missing required amendment and restore the Plan’s tax-qualified status without having to file a VCP application.
If a plan fails to meet the pre-approved plan restatement deadline, the plan document will need to be reviewed to determine if the plan met the requirements of Section 401(a) of the Code (either from inception or since the last pre-approved restatement) as an individually designed plan. If the plan document did meet these requirements, it is still qualified and can regain its pre-approved status by simply restating using a pre-approved document that meets current requirements.
According to the IRS: “[i]f after reviewing the plan and any interim or discretionary amendments, you determine that one or more provisions did not meet the requirements of IRC 401(a), the qualified status can be corrected…[i]f you find a defect that has existed for less than the past 3 years, you can correct it under SCP. For older form defects, you would have to file a Voluntary Correction Program (VCP) application to correct the failure.”
Conclusion
If you missed the July 2022 restatement deadline, all is not lost – you may not even have a problem. But if you do, the clock is now ticking (both to self-correct because there are time limits and also to file a VCP because once you get notice of an examination by the IRS, the ability to self-correct or file a VCP is gone).[1]
For more information or if you want assistance in complying with this requirement, please feel free to contact your Boutwell Fay attorney or email us at attorneys@boutwellfay.com.
[1] Note – under the Secure 2.0 Act that was just enacted into law, the ability to self-correct may be expanded, as Congress directed the IRS to expand self-correction options within the next two years. For more information on all of the Secure Act changes, including the expansion of EPCRS, please check out our webinars.