It seems that every time Congress passes new retirement plan laws, they manage to break something in the process. The SECURE 2.0 (S2) provisions related to catch-up contributions are a prime example of “If it ain’t broke, don’t fix it.”
Another thing Congress seems to do with many pieces of retirement plan legislation is encourage plan sponsors to fix what actually is broken by expanding and simplifying the IRS correction program called the Employee Plans Compliance Resolution System or EPCRS. To that end, S2 gave us the brand new Eligible Inadvertent Failure. Since we need another acronym, we’ll call it the EIF – not to be confused with EMF (the one-hit wonder from the early 1990s) or the AIF (the Accredited Investment Fiduciary credential).
What is an EIF and why should anyone care? Two great questions; let’s take that second question first
Why Do We Care?
The EIF is a big deal because it blows the doors wide open on the types of plan-related mistakes that a company can self-correct. Pre-EIF, only certain operational mistakes and a small handful of plan document errors could be self-corrected. If those operational mistakes were significant, they could only be self-corrected within 3 years of occurrence. Correction of any other errors required a plan sponsor to submit a formal application to the IRS for approval – a time-consuming and often expensive proposition. Now, any mistake that qualifies as an Eligible Inadvertent Failure can be self-corrected at any time and regardless of its significance.
What Is An Eligible Inadvertent Failure?
That brings us back to the question of what, exactly, an EIF is. On the surface, it’s pretty simple – an EIF is a failure that occurs despite the existence of practices and procedures a company has in place to facilitate overall compliance in how it operates its plan. Even mistakes that occurred prior to S2’s passage can be corrected as EIFs as long as they meet that definition. The only types of mistakes that can never be EIFs are:
- Egregious failures,
- Failures involving the diversion or misuse of plan assets, and
- Abusive tax avoidance transactions.
There are also several types of failures that the IRS has indicated cannot be self-corrected until they issue further guidance. These include:
- Significant failures in terminated plans,
- Failures in orphaned plans,
- Failure to formally adopt a written plan document on startup, and
- Any failure corrected by a plan amendment that reduces benefits.
We said it’s simple on the surface, because there is a bit more to unpack here. After all, nothing related to retirement plans is that simple.
Practices & Procedures
Having practices and procedures in place has long been a required component of self-correction; however, the EIF now places them center stage. Those procedures must be “reasonably designed to promote and facilitate overall compliance in form and operation with applicable Code requirements.” That’s pretty broad. The IRS goes on to say that they must have been “routinely followed, and [the failure] must have occurred through an oversight or mistake in applying them.”
All of that is to say that each plan sponsor must have internal procedures in place (and follow them) to ensure they are managing their plans in a compliant manner. Simply pointing to the plan document or hiring an outside service-provider are not enough without also having procedures for how the company will handle its own plan-related tasks.
Timing
Although the correction window for EIFs is now more or less open-ended, there are a couple limitations that still make time of the essence.
First, the plan sponsor must complete correction within a reasonable time following discovery of the error. In Notice 2023-43, the IRS indicated that correction within 18 months of discovery satisfies that standard. That means it has become especially important to document at least the month, if not the exact date, a failure is first discovered.
A second reason to be as expeditious as possible in correcting is that an EIF can no longer be self-corrected once the company or the plan receives notice of an impending IRS audit. There is an exception if, at the time of receipt of the audit notice, the plan sponsor can show “a specific commitment to implement the self-correction of an identified” error.
In other words, it’s not enough to have simply conducted a general compliance audit or to state that any errors that are discovered will be corrected. Instead, a plan sponsor must have identified a specific error and taken concrete steps toward correction of that error. What constitutes “concrete” will vary based on the particulars of each situation, but they could include things like hiring a consultant (like DWC – shameless plug) specifically for the correction and being timely/diligent in providing that consultant the information they need to do the work. Hiring a professional and then dragging feet in providing data likely would not hit the mark.
Documentation
It is important to note that even though many more errors can now be self-corrected, keeping thorough documentation of those corrections is still critical. That documentation should generally include things like the following:
- Details of the error;
- Date the error is identified;
- Procedures that were in place at the time along with the gaps in those procedures that allowed the error to occur;
- Details of the correction;
- Confirmations of any associated contributions, distributions or other transactions); and
- Procedural changes implemented to prevent repeat occurrences.
Participant loan errors fall under the purview of both the IRS and the Department of Labor; however, self-correcting under these new IRS rules does double-duty and also counts as correcting for the DOL. With that said, S2 does specifically state that DOL may establish certain reporting requirements with respect to self-corrected loan errors.
Is VCP Still A Thing?
In short, yes. VCP is the component of the correction program that includes applying to the IRS for approval of a correction. As noted above, there are still certain types of errors that cannot be self-corrected. That would include errors that don’t meet the definition of EIF. In those situations, VCP would be the way to correct. In addition, if a given error triggers an excise tax, the only way to request a waiver of that tax under current guidance is via VCP.
There are also situations in which a plan sponsor may want or need something more formal from the IRS to document that a correction is acceptable. One example may be in a merger or acquisition setting in which a buyer needs assurance that it will not be taking on any liability for the error. There are likely other scenarios for which having that formal “get out of jail free card” might be preferable.
Although some VCP applications that are currently pending may now be obsolete, there is no harm in letting them work their way through that process. Not to mention, we would be surprised if the IRS would refund the user fees already paid if those applications were to be withdrawn.
What's Next?
The IRS usually does a comprehensive update of EPCRS every 2 to 3 years. The last such update was in 2021, so the next iteration was likely already in the works even before S2 came along. It’s not clear whether the newly minted EIF will speed up or slowdown that process, but Congress gave them a deadline of the end of 2024. Until then, we can rely on the guidance we currently have and cross our fingers that they continue to further streamline the correction process.
For more information, please visit our SECURE 2.0 Act Resource Page.
