403(b) Prototype and Volume Submitter Plan Documents

By Patrick J. Gallagher, CEBS
Carroll Consultants, Ltd.

The final 403(b) regulations required employers to adopt a written plan document by December 31, 2009. The IRS, however, did not have a program in place to review these documents to determine if they contained the provisions required to comply with current laws and regulations.

On March 28, 2013, the IRS released Revenue Procedure 2013-22 which establishes a pre-approved document program for 403(b) plans. This Revenue Procedure creates a prototype and volume submitter program, each with its own requirements and flexibility with regard to plan provisions. Employers adopting a pre-approved plan document may rely on the plan terms to satisfy Code 403(b) and the final regulations that were effective in 2009.

What is a Prototype Document?
A prototype document consists of a basic plan document and an adoption agreement that have been approved by the IRS. The basic plan document contains all the required language needed to comply with current laws and may not be changed. The adoption agreement contains provisions that the employer may select to customize their plan. These provisions include eligibility, contribution formulas, distribution options, loan provisions and definitions of compensation, year of service and vesting. These provisions will have limited options which may be selected.

What is a Volume Submitter Document?
A volume submitter document is a specimen plan document approved by the IRS that contains all the required language needed to comply with current laws. The employer will have more flexibility with regard to the optional provisions and may make minor modifications to the specimen without losing reliance that the document satisfies the requirements of Code Section 403(b).

Why Is It Important To Adopt A Pre-Approved Plan When Available?
The IRS has indicated that an employer adopting a pre-approved plan document will be able to retroactively amend their prior plan document to correct any defects in the required plan provisions that the IRS discovers under audit. While the plan document you are currently using probably contains the language required to comply with current laws, this extra level of protection is important.

What Are The Next Steps?
The IRS will accept applications of pre-approved plans between June 28, 2013 and April 30, 2014. Document providers will be submitting their prototype and volume submitter language to the IRS to receive a Favorable Opinion Letter on which each employer adopting their plan can rely. These Opinion Letters will be issued sometime in 2014.

When Can The Pre-Approved Documents be Adopted?
The IRS will later announce a deadline to adopt the pre-approved plans. Based on the timetable for other qualified plans, you should prepare to adopt a pre-approved plan in 2014 or 2015. The IRS expects to announce a 6-year restatement cycle for 403(b) plans going forward.