Ineligible submissions include cases where:
- the plan’s written program did not satisfy the legal requirements under Code §403(b) and the 403(b) final regulations, or the plan failed to adopt a written plan program before December 31, 2009; or
- the plan failed to operate according to its written program’s terms.
The agency said it will return all VCP submissions (including fees) containing ineligible failures.An employer sponsoring a 403(b) plan may currently use VCP to correct employer eligibility and demographic failures, and the operational failures listed in Revenue Procedure 2008-50 §5.02(2)(a). The IRS said it is in the process of updating Revenue Procedure 2008-50 to expand EPCRS to include post-December 31, 2008 failures.