The end of 2009 will prove to be a busy (and hectic) time for those responsible for maintaining benefit plan documents. We have provided answers to some of the more common questions that we are receiving.

What are the deadlines for the EGTRRA Restatement of qualified plans?

Current IRS procedures impose different deadlines depending on the types of plans.

Employers must restate their pre-approved defined contribution plans (prototype and volume submitter plans), to comply with EGTRRA by April 30, 2010 (this is also the date to submit for a determination letter, if one is desired). NOTE that the deadline to adopt a good-faith PPA amendment is the last day of the 2009 plan year (e.g., December 31, 2009 for a calendar year plan). For that reason, many employers may decide to go ahead and restate their pre-approved defined contribution plans now rather than wait until the 2010 deadline.

The IRS has not yet established the deadline to restate pre-approved defined benefit plans. We do not expect the IRS to set the restatement deadline until the first quarter of next year (which is when we expect IRS approval of our pre-approved defined benefit plans).

Cash balance defined benefit plans and ESOPs are individually designed plans and are on the five year remedial amendment period cycle. The current cycle is Cycle D (for employers with EINs ending in 4 or 9). Cycle D restatements are generally due by January 31, 2010 (an employer may elect to use Cycle E if its 2009 plan year ends after this date). However, regardless of the EGTRRA restatement deadline, employers must still adopt PPA provisions by the last day of the 2009 plan year. Therefore, if a plan is on Cycle D and is a calendar year plan, then the plan should either be restated prior to year end or a PPA good-faith amendment should be adopted by year-end with the restatement taking place prior to January 31, 2010.

The IDP formatted volume submitter checklists and the prototype transmittal and supporting forms checklists are available online.

You can use either our Service Bureau or our On Demand service.

Does the document system include the new IRS provided 402(f) Notices?

No. The IRS has released new model IRC §402(f) notices in September. We are in the process of adding these to the document system in the first quarter of 2010. For now, we have Word versions of the sample notices available.

Does SunGard have an amendment for the 2009 waiver of Required Minimum Distributions (RMDs) under WRERA (Worker, Retiree, and Employer Recovery Act of 2008)?

Not at this time. The deadline for an amendment to comply with the changes in this act is the last day of the 2011 plan year. The IRS has provided sample amendments and we will provide amendments that coordinate with our documents in 2010. For information regarding the waiver of 2009 RMDs, see our Technical Updates. In addition, we have participant election forms in the ERISA Forms product.

Do I need to restate a terminating plan?

Plans that are terminating must be updated at the time of termination to reflect all applicable qualification requirements then in effect. This means the plan must have all relevant amendments at termination date. If an employer is terminating its plan prior to the EGTRRA restatement deadline (e.g., April 30, 2010 for pre-approved defined contribution plans), then the plan is not required to be restated. It can remain on a GUST document so long as all amendments have been made. However, please see this explanation as to why a restatement might be advisable.

We have provided termination amendments to our subscribers to bring plans up-to-date for changes in the law after the final 415 regulations. If you did not receive the link to these amendments, please contact Client Account Services. This amendment is also part of the ERISA Forms contained in the Pension Library.

Do I need to restate or amend a plan if I restated it in 2008?

If the plan was restated after our first EGTRRA release in June 2008, then it only needs to have a PPA amendment added. We have provided to our subscribers PPA amendments to bring plans up-to-date. If you did not receive the link to these amendments, please contact Client Account Services (800-326-7235 option 6). This amendment is also part of the ERISA Forms contained in the Pension Library.

If the plan was restated PRIOR to June 2008, it needs to be restated in its entirety.

When must sponsors of 403(b) plans adopt a written plan?

Except as stated below, ALL 403(b) plans must have a written plan as of December 31, 2009. SunGard’s 403(b) plan documents prior to July 2008 (Version 4.0/5.0) are not updated for the final regulations or PPA. 403(b) plans created prior to this time MUST BE restated onto a newer plan document by December 31, 2009. SunGard’s 403(b) plans have already been updated for PPA and the final regulations, so a separate good-faith amendment is not needed with these plans. Note that the IRS has not yet established a determination letter program or a pre-approved plan program for 403(b) plans.

The only exception to the requirement that 403(b) plans have a written plan document is church plans invested solely in the traditional 403(b) investments of annuity contracts and mutual fund custodial accounts. By contrast, church plans with retirement income accounts must have written plan documents. Notwithstanding this exception, many church plans are adopting written plan documents because their document vendors insist that they do so, even if the law does not require it.

Information regarding SunGard’s 403(b) prototype plans is available online.

Our checklists for individually designed 403(b) plans are available online. You can use either our Service Bureau or our On Demand service.

What interim amendments are or have been required since plans were restated for GUST (generally since 9/30/03)?

A chart listing the interim amendments and the applicable deadlines can be found online.

The more current interim amendments include:

PPA. Employers must adopt a good-faith amendment by the last day of the 2009 plan year (2010 for governmental plans). Our good-faith PPA amendment includes provisions for the HEART Act and for the treatment of gap period income on excess deferrals.

Normal retirement age. This amendment is only needed for pension plans that have a normal retirement age less than age 62. It applies to defined benefit plans, money purchase plans (including target benefit plans), and profit sharing/401(k) plans that include merged money purchase plan assets. IRS Notice 2007-69 provides additional details on this requirement.

Midwest Disaster Relief. Similar to the Katrina amendments, all plans in Midwestern states that were affected by the 2008 storms are allowed to make loans and hardship distributions under certain circumstances. The due date is the last day of the 2010 plan year.

Where can I obtain the interim amendments?

If you are a subscriber to our plan document products or the ERISA Library/Forms product and you did not receive a link to the interim amendments, please contact Client Account Services (800-326-7235, option 6). If you’d like to subscribe to the ERISA Library/Forms product, click here.

What do I do if an employer has not timely adopted all or any of the interim amendments?

The failure to adopt interim amendments is considered a plan document failure. It can only be corrected using the voluntary compliance program (VCP) set forth in Rev. Proc. 2008-50. We do NOT handle VCP submissions so you should contact an advisor if you have questions regarding this IRS program. The IRS has a summary of the VCP program as it applies to non-amenders.

Are amendments needed for Section 457(b) Plans?

Yes, these plans also require updating for PPA. A PPA amendment is available on the current disks for these plans. If you do not have a current disk, please contact Client Account Services. There is no required amendment for 457(f) plans.

What amendments are needed for Cafeteria Plans and Health Reimbursement Arrangements?

Health Reimbursement Arrangements and cafeteria plans that include Health Flexible Spending Accounts need to be amended for Michelle's Law, GINA (Genetic Information Nondiscrimination Act), and the Mental Health Parity and Addiction Equity Act. We have an amendment available online.

What amendments are needed for Self-funded Health Plans?

Self-funded plans need to be amended for Michelle's Law, GINA (Genetic Information Nondiscrimination Act), and the Mental Health Parity and Addiction Equity Act. We have updated our self-funded document system for these laws and provided an amendment in September. If you have not received it the link to the amendment, please contact Client Account Services (800-326-7235, option 6).

Where can I find information regarding EFAST2?

The new Form 5500 EFAST2 program takes effect for plan years beginning on or after January 1, 2009. We have software solutions and numerous FAQs on this program online. We also have many seminars on the program.