On December 11, 2008, the IRS issued a notice announcing relief with respect to the requirement that 403(b) plan sponsors have a written plan in place by January 1, 2009.  The IRS is extending the deadline for the written plan requirement to give plan sponsors additional time to put their plan documents in place.

According to Notice 2009-3, the IRS will not treat a 403(b) plan as failing to satisfy the requirements of Code section 403(b),  and the final regulations during 2009 if the plan meets the following requirements:

• By December 31, 2009, the plan sponsor of the plan has adopted a written 403(b) plan that is intended to satisfy the requirements of 403(b) and the regulations.
• During 2009, the plan sponsor operates the plan in accordance with a reasonable interpretation of 403(b) and the related regulations.
• By the end of 2009, the plan sponsor makes its best effort to retroactively correct any operational failure during the 2009 calendar year to conform to the written plan.  Any corrections should be based on the principles set forth in the IRS Employee Plan Compliance Resolution System (EPCRS) voluntary compliance program.

In this Notice, the IRS indicated that it intends to issue a revenue procedure establishing programs for 403(b) plans to obtain IRS approval of the plan document and allowing these plans to make remedial amendments to retroactively fix plan provisions after 2009 under rules that  are similar to those that apply for 401(a) qualified plans.  The IRS has also indicated that it intends to modify EPCRS to include additional 403(b) issues.