SECTION 16. WAIVER OF

MINIMUM FUNDING

Scope .01 This section provides procedures with respect to defined contribution plans for requesting a waiver of the minimum funding standard account and requesting a determination letter on any plan amendment required for the waiver.

Sec. 170

Applicability of Rev. Proc. 94–41 .02 The procedures of Rev. Proc. 94–41, 1994–1 C.B. 711, which supersedes Rev. Proc. 83–41, 1983–1 C.B. 775, as modified by Rev. Proc. 88–5, 1988–1 C.B. 587, and Rev. Proc. 88–29, 1988–1 C.B. 828, apply to the request for a waiver of the minimum funding requirement.

Waiver and determination letter request submitted to national office

.03 Under this section, both the request for a waiver ruling and the request for a determination letter on the effect of any amendment necessary to satisfy section 3 of Rev. Rul. 78–223, 1978–1 C.B. 125, must be submitted by the taxpayer to the national office where it will be treated as a mandatory request for technical advice. The request that is submitted to the national office must include the following:

(1) All the procedural requirements described in section 2 of Rev. Proc. 94–41 must be satisfied;

(2) The submission must include a completed Form 5300 (with Schedule Q) and all necessary documents, plan amendments, and information required by the Form 5300 and by this revenue procedure for approval of the plan amendments;

(3) The request must indicate which key district office has audit jurisdiction over the return; and

(4) The request and the applicable user fee (required by Rev. Proc. 96–8) for both the waiver request and the determination letter request should be sent to:

Internal Revenue Service Assistant Commissioner (Employee Plans and Exempt Organizations) Attention: CP:E:EP:A:1 P.O. Box 14073 Ben Franklin Station Washington, D.C. 20044

Additional information sent after the initial request should be sent to:

Chief, Actuarial Branch 1 CP:E:EP:A:1 Internal Revenue Service 1111 Constitution Ave., N.W. Washington, D.C. 20224

Handling of the request .04 The waiver request will be handled by the national office as follows:

(1) The waiver request and supporting documents will be forwarded to Actuarial Branch, CP:E:EP:A:1, which will treat the request as a technical advice on the qualification issue with respect to the plan provisions necessary to satisfy section 3 of Rev. Rul. 78–223.

(2) The appropriate key district office will be notified of the request. In order not to delay the processing of the request, all materials relating to the determination letter request will be sent by the national office to the key district director for consideration while the technical advice request is completed.

(3) The national office will consider both the application for a funding waiver and the proposed plan amendment. If a waiver is to be granted and if the national office believes that qualification of the plan is not adversely affected by the plan amendment, the mandatory technical advice memorandum will be issued to the key district director. The key district director must decide within 10 working days from the date of the technical advice memorandum either to furnish the applicant with the technical advice memorandum and with a favorable advance determination letter, or to ask for reconsideration of the technical advice memorandum. This request must be in writing. An initial written notice of an intent to make this request may be submitted within 10 working days of the date of the technical advice memorandum and followed by a written request within 30 working days from the date of such written notice. If the key district director does not ask for reconsideration of the technical advice memorandum within 10 working days, the Actuarial Branch will issue the waiver ruling. This ruling will not contain the caveat described in section 3.02 of Rev. Proc. 94–41.

Interested party notice and comment

.05 The notice and comment requirements for interested parties provided in sections 18 and 19 of this revenue procedure must be satisfied. Comments are to be forwarded to the key district office that is considering the determination letter request for the plan amendments. With respect to the waiver request the notice requirements applicable to waiver requests found in Rev. Proc. 94–41 must be satisfied.

171 Sec.

When waiver request should be submitted