Recently the IRS requested comments on a program that will allow eligible employers to adopt a pre-approved prototype plan in order to comply with Code §403(b), including the written plan requirement, and also made available model 403(b) plan language. The program is set forth in a draft revenue procedure. At a later date, the IRS also intends to establish a determination letter program for 403(b) plans similar to the program for qualified retirement plans.
Section 403(b) requires the sponsor of a 403(b) plan to have a written plan document by not later than December 31, 2009. The IRS has previously announced that if a plan sponsor adopts a written plan that is intended to satisfy §403(b) during 2009, and operates its plan consistently with 403(b) or makes appropriate corrections during 2009, it will not treat the plan as failing to satisfy the 403(b) requirements.
An employer that adopts a 403(b) prototype plans generally may rely on the IRS opinion letter that the plan form meets the 403(b) requirements. The draft revenue procedure includes a retroactive remedial amendment period for years after 2009. Therefore, under current guidance, a compliant 403(b) plan document still must be adopted by December 31, 2009.
Under the draft revenue procedure, the IRS will not issue opinion letters for the following types of 403(b) plan: TEFRA church defined benefit plans; plans that include provisions applicable only to churches, qualified church-controlled organizations, church-related organizations, or ministers; or plans that provide graduated vesting.