When it comes to helping individuals with tax problems, the IRS has a reputation for being unhelpful and difficult to reach. However, sources say the agency is more responsive to plan sponsors looking for plan direction.
“The IRS staff in the employee plans department is generally knowledgeable and very willing to speak to plan sponsors or their advisers,” says Ari Sonneberg, partner and chief marketing officer for the Wagner Law Group in Boston. “They’re usually very helpful to the extent that they can be over the phone.”
Still, the agency has become harder to reach since the COVID-19 pandemic pushed many workers into remote positions, and it’s helpful to know exactly whom to contact within the employee plans department rather than calling the general helpline. So plan sponsors and their advisers still need a game plan if they want IRS help.
Plan sponsors might need assistance with issues including the creation or termination of a plan, or correcting a failure of either documentation or administration.
“It’s critically important that people don’t even informally rely on guidance from people at too low a level at the IRS,” says Michael Wieber, a partner with Quarles & Brady LLP in Milwaukee. “You want to get an agent in the appropriate area if you want any comfort that the IRS would see things the same way that as that person.”
Help Reaching the IRS From Plan Sponsor Providers
Many retirement plan professionals pay for access to a private IRS directory that includes information on who to call based on the IRS code in question, says Jared Johnson, a partner in the tax group at White and Williams LLP in Philadelphia. Or they have their own contacts they’re built up at the agency through helping other clients with similar issues, says Steven Sokolic, of counsel at Retirement Law Group in San Diego.
So it often makes sense to work with an adviser, a retirement plan consultant, an enrolled retirement plan agent (ERPA) or certified public accountant (CPA), says Johnson. “Retirement plan specialists can interface directly with the IRS counsel’s office.”
Plan committees should meet at least twice a year to review their plan for any potential failures and determine whether they need to take corrective action with help from the IRS, Johnson says. If the answer is “yes,” the sooner a plan sponsor can begin the process, the better.
“Don’t wait until the last minute to make decisions, especially on things like vesting or participation if the issue is looming,” Sonneberg says. “Plan sponsors think they can call the IRS and quickly get an answer, but it can take weeks depending on how backed up it is.”
A phone call is typically only the beginning of the process, since oral advice is always considered advisory and not binding on the agency, according to the IRS’ website. The IRS also says it does not orally issue rulings or determinations in response to oral requests.
The first step, of course, is determining whether you need to go to the IRS at all, Sonneberg says. In general, the IRS can help with participation, vesting, funding and tax issues, while fiduciary concerns should be addressed by the Department of Labor (DOL).
For basic, straightforward questions, the best route is to go through the IRS website, says Elizabeth Thomas Dold, a principal with Groom Law Group, Chartered, in Washington, D.C.. In recent years, the agency has bolstered its self-help offerings with both written and video content aimed at answering frequently asked questions (FAQ). In particular, the agency’s “Issue Snapshots” and “Fix-It Guides” may answer many plan sponsor questions, she notes.
“The IRS has taken great strides over the past 10 years or so to make the retirement plan section of the website as user-friendly as possible,” Johnson says.
Even issues that used to require IRS guidance, such as implementing a correction through the Employee Plans Compliance Resolution System (EPCRS), can now often be done by the plan sponsor entirely online without human interaction with an agent, Dold says. Plan sponsors might use the online process to correct issues such as a miscalculation for a hardship distribution or a using an incorrect definition of compensation for safe harbor testing.
Components of ECPRS include the Self-Correction Program (SCP), the Voluntary Correction Program (VCP) and the Audit Closing Agreement Program (Audit CAP).
You fill out the forms on the website and submit your proposed correction,” Sonneberg says. “[The IRS staff] generally offer their blessing, if it’s a reasonable correction and it makes the participants whole again.”
VCP applications, the most commonly used, typically take about four months to process, or maybe longer if there are errors or other issues with the compliance statement, Dold says. New rules from the IRS will eliminate the ability for a company to submit a VCP anonymously, but a pre-conference procedure for a VCP can still be done anonymously.
Determination Letters and Letter Rulings
For more complicated issues, plan sponsors can take several routes to get IRS help. For questions related to preventing future problems when starting a new plan, terminating an existing one or merging two plans, for examples, plan sponsors might request a determination letter, Wieber says, which, according to the IRS website, costs $275. The IRS recently changed the rules to allow plan sponsors and their advisers to apply for letter rulings and determination letters electronically.
“Those are more focused on the language of the documents themselves, as opposed to interpretations or facts that may not be accurately stated or may change over time,” Wieber says.
To get a determination letter, a plan sponsor will need to submit a complete statement of facts and a detailed description of the transaction. In general, the IRS will not provide a ruling on one step of a larger transaction, preferring to rule on the overall transaction, according to the IRS website.
Plan sponsors with pre-approved documents can get an opinion letter, in which the IRS essentially gives its blessing that a plan’s format is acceptable and written in a way that satisfies the legal minimums for what a document should look like, Wieber says. “That gives the plan sponsor comfort that if it starts from this place and fills in the blanks, the document will meet the technical requirements,” he adds.
More common than questions about new plans, however, are questions on compliance resolutions for plans that have failed in one way or another and do not qualify for the VCP program.
“If the method of correction is unclear or there are multiple ways that you might reasonably correct something, you can get the IRS to rule on your correction method through a private letter ruling [PLR],” Wieber says. In that case, the IRS is making a specific judgment on a specific situation. PLRs are helpful to plan sponsors, but they’re pricey, he notes. According to the IRS website, depending on the issue addressed, a sponsor could owe $5,000 to $38,000. PLRs can also take months or a year to complete, which can cause significant problems for a plan that has an immediate issue or question, says Wieber.
“That’s a lot of money and a big commitment,” says Dold. “So, most people ask whether there’s another avenue.”
In those instances, plan sponsors will need to discuss with their lawyer whether it makes sense to go through the PLR process or to simply make their best good faith decision and move forward.
“I can’t tell clients who do that that there is no risk,” Wieber says. “But most employers are taking bigger risks every day in their business. This is about taking a reasonable position based on what’s out there.”
Plan sponsors that go this route should document the decisionmaking process, including by getting an opinion letter from an attorney, which can go a long way toward protecting them in the event of not only a fiduciary claim but also to show the IRS that they were attempting to do the right thing.
“Even if the IRS ultimately disagrees with you, you may be able to avoid or reduce penalties and interest by showing that you were trying to be prudent in your approach,” Wieber says.
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