Benefits Law Update
        Practical advice from Verrill attorneys

        IRS Launches Universal Availability Rule Compliance Project

        by Eric D. Altholz on May 17, 2011

        The IRS Employee Plans Compliance Unit (EPCU) has kicked off its long awaited compliance initiative focusing on how higher education organizations apply the “universal availability rule” to their 403(b) plans. As we’ve explained in a prior post, under the universal availability rule if a 403(b) plan permits any employee to make salary deferrals to the plan, then it must offer the same opportunity to all employees (with limited optional exclusions for certain classes of employees).

        Last month the EPCU began sending compliance check letters to a national sample of over 300 colleges, universities, seminaries and other higher education organizations. These letters contain a detailed questionnaire and information on how to respond to the survey. Although this is strictly an information gathering exercise, higher education organizations that receive the survey shouldn’t think participation is optional. The IRS has said that an organization’s failure to respond to the contact letter by providing the requested information could result in further action or examination of the plan. (Indeed, the IRS is now conducting full-scope examinations of those plans whose sponsors failed to respond to last year’s 401(k) plan compliance check.)

        Organizations that appear to comply with the universal availability rule will receive a closing letter from the IRS. Organizations that appear not to be complying can expect the EPCU to help them analyze the problem and make any necessary corrections. Note that organizations can self-correct compliance failures. Correction for a universal availability failure generally includes giving each excluded eligible employee the opportunity to participate. The organization must also make employer contributions to restore improperly excluded eligible employees’ lost opportunity to make salary deferrals. An organization’s failure to correct the error could result in the loss of favorable tax benefits for the plan and the employees.

        403(b) plan administrators, regardless of whether they receive the compliance check letter, should consider using the compliance check as an internal audit tool to identify and correct any problems with universal availability. And if your organization is unfortunate enough to have received a compliance check letter, we strongly recommend that you respond. We are happy to assist in responding, correcting plan compliance problems, or performing an internal audit of your plan. You can learn more about the project on the IRS Web site.

        Benefits Law Update

        Verrill’s Benefits Law Update blog delivers timely insights and practical guidance on the ever-evolving landscape of employee benefits and executive compensation. Our blog provides up-to-date analysis and commentary on a wide range of topics, including timely updates on developments in law affecting employee benefit plans and executive compensation arrangements.

        Key Contacts

        Subscribe

        Looking for more great content? Subscribe for regular legal updates and information delivered right to your inbox.

        Firm Highlights

        Blog

        Section 530A Account Update: ERISA Status of Trump Accounts

        The Department of Labor has issued important guidance addressing whether employer programs that permit contributions to Section 530A accounts (and...
        Press Releases

        97 Verrill Attorneys Recognized by Best Lawyers® 2027, Including Four Named Lawyers of the Year

        AUGUSTA, Maine, BANGOR, Maine, BOSTON, Mass., PORTLAND, Maine, and WESTPORT, Conn., (August 20, 2026) – Verrill is proud to announce that 97...
        Alerts and Newsletters

        SEC’s Proposed “Reg Crypto”: What Founders Need to Know

        Startup founders and emerging-growth companies have a number of options for raising capital under the federal securities laws, including Regulation D...
        Blog

        After 45 Years, the IRS Speaks on DCAP Nondiscrimination Testing – And It’s Good News

        Employers that provide a Dependent Care Assistance Program will be pleased to learn that for the first time in 45 years, the IRS has issued guidance...
        Media Mentions

        Robert Keach Discusses Bankruptcy Auction Strategy in Law360

        Verrill attorney Robert Keach spoke with Law360 article examining the complex bankruptcy auction process that resulted in the sale of 23 summer...
        Media Mentions

        Martha Gaythwaite Featured in Portland Press Herald Coverage of Sig Sauer Trial Victory

        Verrill attorney Martha Gaythwaite was highlighted in media coverage of a federal trial in Bangor involving firearm manufacturer Sig Sauer. As...
        Media Mentions

        Law360 Quotes Robert Keach on Senate Bill Affecting Small Business Restructurings

        Verrill attorney Robert Keach was recently quoted in a Law360 article discussing federal legislation that would permanently restore the $7.5 million...
        Alerts and Newsletters

        SAFEs and Preferred Stock – Key Deal Terms Every Founder Should Know

        SAFEs Before negotiating a term sheet for preferred stock, many early-stage companies, particularly at the seed stage, first raise capital through...
        Press Releases

        Verrill Welcomes Business Restructuring and Insolvency Attorney Nimra Tariq

        BOSTON, Massachusetts – Verrill is pleased to announce that Nimra Tariq has joined the firm’s Business Restructuring and Insolvency Group as an...
        Media Mentions

        Robert Keach Provides Commentary on First Brands Restructuring in Law360

        Verrill attorney Robert Keach was quoted in the Law360 article, "First Brands' Ch. 11 Plan Revives Angst Over Admin Claims," discussing First Brands...
        Press Releases

        Verrill Welcomes Construction Attorney Cassie Dufon

        PORTLAND, Maine – Verrill is pleased to welcome Cassie Dufon to the firm’s Construction Group as an Associate, resident in the firm’s Portland...
        Press Releases

        Verrill’s Wide-Ranging Private Wealth Law Practice Recognized in 2026 Chambers and Partners High Net Worth Guide

        BANGOR and PORTLAND, Maine and BOSTON, Mass. – Verrill attorneys Kenneth P. Brier, Anya F. Endsley, Kurt E. Klebe, Mary McQuillen, Nathaniel S....