Employer that has maintained a 105(h) plan for over six years without a plan document now wants to adopt a plan document - need the plan document be effective as of inception of informal plan, or can it just be effective going forward (due to fact that 105 does not require written plan document).

Treas. Regs. Section 1.105-11(B) defines a self-insured medical reimbursement plan as "a separate written plan for the benefit of employees..." I have concluded that this means there must be a written plan before reimbursments will be tax free. ERISA also requires that there be a plan and a SPD for a welfare plan such as a 105 plan. If there is written documentation that would pass as a written plan for past benefit payments, I would most likely restate the old plan with a current date. If no documentation exists, implement a new (prospecitve only) plan and determine if amended W-2s are in order for past years.

You are right re: plan doc. requirement - the regs. you cite applicable to self-insured arrangements trump the general rule contained in Reg. 1.105-5(a), not requiring a document in order to exclude employer-provided medical benefits from taxable income.

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