The 401(k) plan effectively terminated as of 12/31/08. No contributions have been made since that date and no new participants have been allowed to participate. In fact, the company no longer has employees, since the company was bought by another company that hired all of them. We are filing for a determination letter on June 30, 2009 and are not sure if the proposed termination date can be 12/31/08, or should we/can we use 6/30/09? Or does it even matter?

Thank you!

Is any termination necessary? Merge?

Ordinarily, I agree with you. Unfortunately, there are other issues. It's a non-amender and the client wants to clean it up and distribute the assets. We just want to choose an appropriate proposed termination date.

If no formal action was taken to terminate as of 12/31/08 before that date, I would just terminate it "now" (any time before you submit to IRS). I don't think there's any downside to it - well, maybe there's an amendment required for '09 that wouldn't be for '08; off the top of my head I can't think of one but that shouldn't be a big issue anyway - and I don't think you can take written action to terminate retroactively.

Stock purchase? no can terminate see 401(k)(10)!

Fortunately, we have a copy of a written action to terminate the plan as of 7/1/08 - prior to the acquisition. I think we can move forward with the plan termination. Would you agree? However, since the plan still exists in a frozen state, can we amend and restate the document back to 7/1/08, or should we use a 2009 date - January 1 or July 1? We would like to make the document effective on the same date as the board action so that we can avoid having to amend for any 2009 laws or rules.

Thanks...