A small employer with 7 employees cannot find a copy of its profit sharing plan (adopted in 2004). Has anyone successfully corrected this type defect through the IRS Voluntary Correction Program? Rev. Proc. 2008-50 does not address it.

The IRS EP division may have answered my question. I talked to a contact there on the phone who told me we could take a blank adoption agreement and fill it in based on memory and file that (along with basic plan document) through the VCP. He said the employer needs a plan document to go through VCP and apparently they will accept one reconstructed based on memory. The IRS guy said the IRS will treat the defect the same as a nonamender. I am not holding my breath on this one and won't make any promises to the client but we have no more options. If anyone has any other ideas or track record, let me know.

I assume this is a prototype and you have already checked with the vendor. If not, check with the vendor. I find it hard to believe that the vendor accepted deposits of contributions without being satisfied that the plan was adopted. Even if they destroy their copies they should have some record of having received a copy of the completed adoption agreement, and the date of receipt if not the date of the document was executed, in which case a letter from the vendor reciting all this should help you in vcp. Also, if there is an institutional trustee I would check with that institution for a copy of the adoption agreement; hard to believe it would accept trustee status without a copy of the document, and further hard to believe that it would destroy the adoption agreement.

Does the ER have a copy of the SPD? That might make filling in a blank adoption agreement a bit more accurate that purely from memory, and sending along a copy might lend support to the VCP personnel taking a look at your application.

And if the ER does not have a copy of the SPD, is there a bigger problem (since the new participants obviously aren't getting it...)?