More HH Legal Updates

Houston Harbaugh is a full service law firm headquartered in Pittsburgh and serving Pennsylvania, West Virginia and Ohio. This collection of blogs further highlights the firms capabilities in several practice areas.


Many tax-exempt employers such as hospitals, universities and non-profit organizations maintain a retirement plan intended to meet the requirements of Section 403(b) of the Tax Code. In many respects, a 403(b) plan is similar to a 401(k) plan, and tax-exempt employers are generally eligible to maintain either type of plan, but a 403(b) plan can only be maintained by a tax-exempt employer.

Historically, the tax-qualification requirements applicable to 403(b) plans were less detailed and less specific than those applicable to 401(k) plans, but that stance of the IRS has been changing over the course of the last decade, particularly in the area of plan document requirements. In fact, prior to 2009, a written plan document was not specifically required by the IRS for a 403(b) plan (although it may have been required under the separate federal law of ERISA). This position changed, however, as IRS regulations published in 2007 required all 403(b) plans to have a written plan document in place by December 31, 2009.

Although a tax-exempt employer was required to have a written plan document for its 403(b) plan in place by the end of 2009, there were no specific rules with regard to the content of that document. While 401(k) plan sponsors had many “pre-approved” plan documents available to them from a variety of different types of providers (law firms, mutual fund companies, third-party plan administration firms, etc.), there was no such thing as a pre-approved 403(b) plan document. As a result, the IRS had no specific expectations with regard to the language of 403(b) plan documents (beyond the mere existence of such a document).

All of this has changed in recent years. In 2017, the IRS implemented a new program for pre-approved (e.g., “prototype” and ” volume submitter”) 403(b) plan documents, and the first IRS opinion letters approving 403(b) plan documents were issued in 2018. Under the new program, the only way for a tax-exempt employer to be sure that its 403(b) plan continues to be a tax-qualified plan is to adopt a pre-approved plan document with a valid IRS opinion letter on or before March 31, 2020. Further, that document is required to reflect an effective date of January 1, 2010, to retroactively correct any defects that may have existed in any plan documents, in the view of the IRS, during the interim.

Many providers of investments and/or administrative services in the 403(b) plan world supply 403(b) plan documents, including documents that are the subject of a current IRS opinion letter. Therefore, some plans have already been brought into compliance with the 2020 deadline. On the other hand, there are many 403(b) plan documents that have not been updated since the 2009 deadline, and many 403(b) account providers that do not consider plan document compliance to be their responsibility. Ultimately, in the IRS view, plan document compliance is the responsibility of the employer maintaining the plan.

Houston Harbaugh maintains a pre-approved 403(b) plan document with a valid IRS opinion letter, and is not affiliated with any investment provider. Therefore, our document is available to all 403(b) plan sponsors without regard to where assets of the plan are held. We are also available to review plan documents supplied by other providers, to ensure compliance with IRS requirements. Please contact Gary Gunnett at (412) 288-2210 or to discuss any needs your organization might have in this area.

About Us

Trusted and Cost-Effective Business Law, Business Litigation and Estate Planning Attorneys and Counselors; Building Client Confidence™ with Businesses and Individuals Since 1975

Our firm offers individualized solutions and the highest quality, client-driven and cost effective legal services. Houston Harbaugh, P.C., is a well-known law firm in Pittsburgh, serving Pennsylvania, West Virginia and Ohio. Our diverse practice areas include Business Law, Business Litigation, Estate and Succession Planning, Intellectual Property Litigation and Prosecution, Employment and Labor, Employee Benefits, Oil and Gas, Landowner and Property Dispute Counseling and Litigation, Health Care, Environmental, Real Estate, Construction, Complex Tort and Catastrophic Injury Litigation, Insurance coverage and Bad Faith Law, Mediation, Arbitration and Special Master appointment work. As one of the 20 largest law firms in Pittsburgh, our lawyers serve clients on a regional and national basis.

We regularly represent regional, national and international insurance carriers in defense, insurance coverage, unfair trade practices and bad faith matters, and we issue opinions letters and coverage analyses for insurers. We defend designers, manufacturers and sellers in pharmaceutical, products and medical products liability matters and we litigate and try cases involving catastrophic injuries, industrial accidents, toxic torts, professional, engineering and architectural negligence, and agent and broker claims and lawsuits.

Why Houston Harbaugh, P.C.? The Answer Is Clear.

We are accomplished litigators with a strong track record of success in the courtroom and in jury trials. We design and manage business transactions, succession planning, banking and regulatory issues. Our firm has regularly been featured in the U.S. News “Best Lawyers”® rankings of Pittsburgh’s “Best Law Firms.” Our attorneys are also regularly nominated as “Best Lawyers” in this publication. In addition, many of our attorneys are consistently recognized in the annual national Super Lawyers peer review rankings, and our corporate practice has been selected as the winner of The Legal Intelligencer’s Best Law Firm Corporate Practices contest for the Midsize Firm category. Our property and landowner counseling and litigation practice in Oil and Gas and Real Estate is ranked at the top on a regional basis. We help clients to apply for, prosecute, audit, manage and protect intellectual property rights in patent, trademark, copyright and trade secrets. We are admitted to the USPTO and have experience in the TTAB. Some of our firm’s shareholders are Adjunct Professors of Law at the Duquesne University School of Law in litigation and intellectual property courses.

Helping You Achieve Your Goals For Over 40 Years

Since our inception as a health care practice in 1975, our attorneys have represented clients in state and federal courts in Pennsylvania, West Virginia, Ohio and throughout the nation. We have grown into a multi-disciplinary practice with the ability to handle complex business transactional and litigation matters. We counsel on estate and succession planning and on trust and guardianship matters. We have a strong employment and labor practice. We represent clients in trade secret counseling and federal Defend Trade Secret Act (DTSA) counseling and litigation. Our DTSALaw® practice group is well versed in this federal body of trade secret law. We counsel, draft, litigate and defend claims involving employment non-compete, restrictive covenants, non-disclosure agreements and breach of contract matters. We service clients in the collection of debts and in bankruptcy creditor matters. Houston Harbaugh litigates in Orphans and Probate courts for matters involving estates and trusts. We also provide mediation and arbitration services to parties involved in litigation and our lawyers are currently serving as court appointed special masters in the Federal Courts.

Contact us and Learn How We Can Help You and Your Business

For more information on how we can help you, call our Pittsburgh office at 412-281-5060. You can also reach us online.

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