IRS Expands Self-correction and Determination Letter Programs for Retirement Plans

May 2019

The IRS recently expanded two existing programs for tax-qualified retirement plans — the Employee Plans Compliance Resolution System (EPCRS) and the determination letter (DL) program for individually designed plans. Generally, an individually designed plan is a retirement plan drafted to be used by only one employer. A DL expresses the IRS’s opinion on the tax-qualified status of the plan document. These new changes to the EPCRS and DL programs could be a great help to employers, since they offer opportunities to increase compliance while reducing costs and burdens.
 

Employee Plans Compliance Resolution System (EPCRS)

EPCRS is an IRS correction program that has existed since 1992. Its purpose is to give employers a path to voluntarily correct plan mistakes at a cost that is less than what it would be if the failure was caught by the IRS on audit. For some errors, employers can simply self-correct and keep documentation in their files under the Self Correction Program (SCP) component of EPCRS. But other (more serious) types of failures require a formal Voluntary Correction Program (VCP) application seeking IRS approval, which also requires paying a user fee of up to $3,500.
 
With each new iteration of EPCRS, the IRS has expanded the types of errors that qualify for self-correction. Rev. Proc. 2019-19 significantly expands SCP. The current iteration responds to requests from the retirement plan community for self-correct of a greater number of more common missteps without having to file a VCP application and pay a user fee (where the cost of the filing often outweighed the cost of correction). Beginning April 19, 2019, employers with tax-qualified retirement plans and 403(b) plans can now self-correct more plan document and loan failures and retroactively amend plans to fix more operational failures without filing anything with the IRS. Employers can use the new SCP features immediately.
 
Plan document failures
For many years, the SCP allowed employers to correct certain significant operational failures (if the plan had a DL) and most insignificant operational failures without paying any user fees or penalties. But until now, the SCP was generally not available to self-correct plan document failures (instead, employers had to submit a VCP application to the IRS and pay a user fee to correct such failures). A plan document failure is a plan provision (or the absence of a provision) that causes a plan to violate the qualified plan or 403(b) plan rules. Plan document failures are considered “significant” failures. So employers using SCP to fix plan documents must have a DL and complete the correction by the end of the second plan year after the failure occurred.
 
The new and improved EPCRS now allows these types of failures to be self-corrected if certain requirements are met:
  • The plan document must have a favorable IRS letter covering the most recent mandatory restatement.
  • The error is not a failure to timely adopt the plan’s initial document.
  • The failure is corrected before the end of the correction period, which is generally no later than end of the second plan year following the year in which the plan document failure occurred.
Retroactive plan amendments
Although prior versions of EPCRS allowed employers to retroactively amend their plans to fix a very limited number of operational failures,[1] the new program adds other types of failures that may be corrected in this way, including (under certain conditions), correcting operational failures with retroactive plan amendments. SCP now provides that the following errors may be corrected through retroactive plan amendment:
 
Defined contribution plan allocations that were based on compensation in excess of the IRC Section 401(a)(17) annual compensation limit.
Early inclusion of employees who had not yet satisfied the plan’s eligibility requirements.
Loans and hardship distributions under plans that don’t provide for them.
Loans exceeding the number of loans that are permitted under the plan.
 
Besides those situations, under the new SCP, employers may now also retroactively amend their plans to correct other operational failures, but only if: (i) the plan amendment would increase a benefit, right or feature; (ii) the increased benefit, right, or feature is available to all eligible employees; and (iii) increasing the benefit, right or feature is permitted under the IRC and satisfies EPCRS’s general correction principles. If those conditions are not satisfied, the error may still be corrected by filing a VCP application with the IRS and paying a user fee.
 
Plan loan failures
Making loans to plan participants seems like it should be simple, but there are a lot of ways to make mistakes. Even though loan failures are pretty common, correction has always been quite burdensome and costly, requiring a lengthy application for IRS approval for what is often a very small dollar amount. Plan loan rules fall under both IRS and U.S. Department of Labor (DOL) authority. The DOL does not recognize self-correction, so in the past the IRS required even the simplest and smallest loan failures to be formally submitted for approval.
 

BDO Insight

The IRS has always been very hesitant to allow correction by retroactive plan amendment (for example, to align the plan document with the plan’s operation). When it has been allowed, the IRS generally required a VCP filing. So expanding EPCRS to allow retroactive plan amendments is perhaps the greatest area of relief for employers.

The initial failure to adopt a qualified plan or the failure to adopt a written 403(b) plan document timely cannot be corrected by SCP.

Demographic and employer eligibility failures still cannot be corrected under SCP.

Also, the SCP expansion does not apply to SEPs and SIMPLE IRAs. Rather, as under Rev. Proc. 2018-52, SCP is available to correct only insignificant Operational Failures for SEPs and SIMPLE IRAs.
Although Rev. Proc. 2019-19 replaces Rev. Proc. 2018-52, it does not make any changes to the recently updated filing methods under EPCRS. Keep in mind that only electronic VCP filings will be accepted on or after April 1, 2019.

Employers may now use SCP to correct plan loan failures if the participant defaults or the loan is administered incorrectly. But, employers still cannot use SCP to correct plan loan terms that violate the maximum permissible loan amount and repayment period and level amortization repayment rules (since those are statutory violations, so sponsors must use VCP to correct those failures).
 
Until now, employers could voluntarily correct loan defaults by filing a VCP application and paying a user fee. Now employers can also use SCP. Under both programs, the default can be corrected by a single-sum repayment (including interest on missed repayments), re-amortization of the outstanding loan balance or a combination of the two. But employers that want the protection of a no-action letter under the DOL’s Voluntary Fiduciary Correction Program (VFCP)[2] will still need to use the IRS’s VCP program to correct the error. DOL will not issue a no-action letter for a loan default unless the VFCP application includes proof of payment of the loan and an IRS VCP compliance statement approving the correction.
 
Employers can now use SCP to correct failures to obtain spousal consent for a plan loan when the plan requires such consent. (For example, if distribution of a participant’s benefit requires spousal consent under the QJSA rules, spousal consent is also required for a plan loan.) The sponsor must notify the participant and the spouse and give the spouse an opportunity to consent. If the spouse doesn’t consent, the sponsor can still correct the error under VCP (which generally requires the employer to make a QJSA available to the spouse for the full amount of the participant’s plan benefit, as if the loan had not been made to the participant).
 
Prior versions of EPCRS generally required employers to report deemed distributions resulting from loan failures on IRS Form 1099-R in the year of failure. However, depending on the type of loan failure, employers could request the following relief:
 
  • No reporting of deemed distributions caused by loan defaults and violations of the maximum permissible loan amount, maximum repayment period and requirement to repay loans over a level amortization period.
  • Reporting of deemed distributions caused by other loan failures in the year of the correction (instead of the year of the failure).
Under the new EPCRS, sponsors no longer have to request this relief; rather, they can simply “self-correct” and use such relief without an IRS filing.

Determination Letter (DL) Program
Rev. Proc. 2019-20 opens the IRS’s DL program for one year (starting September 1, 2019) for individually designed “hybrid” retirement plans (like cash balance or pension equity plans). It also opens the DL program to merged plans, so long as the DL is requested within a proscribed timeline.  The guidance also extends the remedial amendment periods for these plans[3] and offers penalty relief for plan document failures discovered during the DL review. Since 2017, the IRS has accepted DL applications only from new or terminating individually designed plans, but reserved the right to open the DL program for other circumstances. This is the first time IRS has opened the program for such “other circumstances.”

Hybrid plans
Fortunately, since IRS curtailed the DL program in 2017, there have been very few changes in the law that would require plan amendments. But there have been required amendments for cash balance and other hybrid plans based on final regulations, so the IRS is allowing a one-year review period for those plans. As part of this process, the IRS will review the entire plan for compliance with the 2016 and 2017 Required Amendments Lists and all Cumulative Lists issued before 2016.[4]

The IRS will not impose any sanctions for document failures it discovers during the DL review that are related to plan provisions required to meet the hybrid plan regulations. For plan document failures that IRS discovers during the DL process that are unrelated to the hybrid plan regulations (but that satisfy certain conditions), the IRS will impose a reduced sanction equal to either the amount the employer would have paid under EPCRS if the plan sponsor had self-identified the error or 150 percent or 250 percent of the EPCRS user fee (depending on the duration of the failure). So employers should correct any failures under EPCRS before filing under the DL program to avoid having to pay more than the regular EPCRS user fee.

Even if an employer is confident that the hybrid plan does not have any document failures, obtaining a new DL provides important protection if the IRS audits a plan and could reduce some of the complications that could arise with aging DLs.

Merged plans
Beginning on September 1, 2019, the IRS will accept DL applications for individually designed “merged plans” — i.e., single-employer, individually designed plans that result from consolidating two or more plans maintained by unrelated entities in connection with a corporate merger, acquisition, or other similar transaction. An employer can request a DL on the merged plan if:
  • The plan merger occurs no later than the last day of the first plan year that begins after the effective date of the corporate transaction.
  • The DL application is filed with the IRS by the last day of the merged plan’s first plan year that begins after the effective date of the plan merger.
The IRS will review a merged plan for compliance with the Required Amendments List issued during the second full calendar year before the DL application and all earlier Required Amendment and Cumulative Lists.

Plan mergers typically require amendments related to eligibility, vesting, and maintaining protected benefits, etc. If an employer does not submit a merged plan for a DL under the expanded program, the employer could not rely on the plan’s prior DL for changes made to the plan to effectuate the merger.

Although it is not clear, it appears that the expanded DL program would be available when a preapproved prototype or volume submitter plan is merged into an individually designed plan. Often larger employers have individually designed plans while smaller employers have preapproved plans, and larger employers often acquire smaller employers and merge the smaller employer’s preapproved plan into the larger employer’s individually designed plan. But employers should keep in mind that the merged preapproved plan can cause a plan document failure for the individually designed plan (for example, if signed and dated plan documents and amendments for the acquired plan cannot be located).

The IRS will not impose any sanctions for document failures related to plan provisions intended to effectuate the plan merger. For plan document failures unrelated to the plan merger that satisfy certain conditions, the IRS will impose a reduced sanction equal to either the amount the employer would have paid under EPCRS if the plan sponsor had self-identified the error or 150 percent or 250 percent of the EPCRS user fee (depending on the duration of the failure). As noted above, employers should correct any failures under EPCRS before filing under the DL program.
 

BDO Insight

Plan mergers before May 2018 may not be eligible for the expanded DL program, since the DL application for the merged plan must be submitted within one year after the plan merger. Since IRS curtailed the DL program in 2017, such plans may be left without access to a DL on a merged plan even under the expanded program.
 
Employers who merged plans in May, June or July 2018 (or later) should consider hurrying to file a DL application before the one-year filing window permanently closes. But keep in mind that a Notice to Interested Parties must be given in advance of a DL filing.
 
The new guidance does not restrict the number of times that employers could request a DL on a merged plan, so presumably, an employer could file a new DL request for every plan merger.
 

Key Takeaways

Employers considering whether to use the expanded SCP or DL program should consult with their tax advisers to ensure that the plan is eligible for the program (and that any other potential qualification issues are considered before requesting a DL). BDO can help.
 
 

CONTACT:

 
Norma Sharara
National Tax Office Managing Director, Compensation & Benefits
  Joan Vines
National Tax Office Managing Director, Compensation & Benefits

 
Kimberly Flett
National Practice Leader ERISA Compliance and Reporting
   
 
[1] See Section 2.07 of Appendix B of Rev. Proc. 2018-52 (prior EPCRS).
[2] DOL’s Voluntary Fiduciary Correction Program is described here.
[3] Rev. Proc. 2019-20 extends any remedial amendment period that is still open on the date an employer becomes eligible to submit a DL until the later of: (i) the last day the employer can submit a DL application under Rev. Proc. 2019-20; or (ii) 91 days after the IRS issues a DL (in accordance with Treas. Reg. § 1.401(b)-1(e)(3).
[4] Notice 2017-72; Notice 2016-80; and the Cumulative Lists issued prior to 2016.