Basically, the answer is No, the SIMPLE must be the only plan if it is adopted. The following is the full story:

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Can an employer make contributions under a SIMPLE IRA plan for a calendar year if it maintains another qualified plan?

Generally, an employer cannot make contributions under a SIMPLE IRA plan for a calendar year if the employer, or a predecessor employer, maintains a qualified plan (other than the SIMPLE IRA plan) under which any of its employees receives an allocation of contributions in a defined contribution plan or receives an accrual in a defined benefit plan for any plan year beginning or ending within that calendar year. In applying these rules, transfers, rollovers or forfeitures are disregarded, except to the extent forfeitures replace otherwise required contributions. “Qualified plan” means a plan, contract, pension or trust described in section 219(g)(5) and includes a plan qualified under section 401(a), a qualified annuity plan described in section 403(a), an annuity contract described in section 403(b), a plan established for employees of a State, a political subdivision or by an agency or instrumentality of any State or political subdivision (other than an eligible deferred compensation plan described in section 457(b)), a simplified employee pension (“SEP”) described in section 408(k), a trust described in section 501(c)(18), and a SIMPLE IRA plan described in section 408(p). This “no-other-plan limitation” applies on a year-by-year basis. Thus, an employer cannot establish a SIMPLE IRA plan for a calendar year if the employer has another plan that is active during any plan year of the other plan that overlaps with the calendar year.

However, an employer can make contributions under a SIMPLE IRA plan for a calendar year even though it maintains another qualified plan if either:

The other qualified plan maintained by the employer covers only employees covered under a collective bargaining agreement for which retirement benefits were the subject of good faith bargaining and the SIMPLE IRA plan excludes these employees.
The other qualified plan is maintained by the employer during the calendar year in which an acquisition, disposition or similar transaction occurs (or the following calendar year); the requirements of this question would have been satisfied if the transaction had not occurred (and thus the employer maintaining the SIMPLE IRA plan had remained a separate employer); and only individuals who would have been employees of that “separate” employer are eligible to participate in the SIMPLE IRA plan.
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However …it depends on what you mean by [b]“can there be”.[/b]He can establish and maintain the SIMPLE for 2009, as long as the SEP IRA is not funded for 2009. It does not matter if the funds are still in the SEP, as long as no SEP employer-contributions are made to the SEP IRA for 2009.

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