SECTION 3. ON WHAT ISSUES — Internal Revenue Bulletin 1996-1

MAY TAXPAYERS REQUEST WRITTEN GUIDANCE UNDER THIS PROCEDURE?

.05 The Service is also issuing new Schedule Q (Form 5300), Nondiscrimination Requirements. Schedule Q (Form 5300) will take the place of the attachment that was required by section 5.03 of Rev. Proc. 93–39 to be included with determination letter applications. (A model attachment was included in Appendix A of Rev. Proc. 93–39.) This revenue procedure requires Schedule Q (Form 5300) to be filed with all determination letter applications, other than applications filed on Form 6406, Short Form Application for Determination for Minor Amendment of Employee Benefit Plan; applications relating to the qualified status of group trusts; and applications relating solely to the requirements of § 420 of the Code, regarding the transfer of assets in a defined benefit plan to a health benefit account described in § 401(h).

.06 The Service will continue to accept determination letter applications that are filed on Form 5300 series forms with revision dates before January 1996, and that do not include Schedule Q (Form 5300), through the 120th day following the date of the Service’s announcement in the Internal Revenue Bulletin of the availability of the revised forms, provided such applications would satisfy the requirements of Rev. Proc. 93–39.

.07 Rev. Proc. 81–19, 1981–1 C.B. 689, provides optional procedures for employers to obtain determination letters on certain amendments to plans for which favorable determination letters have been issued. Rev. Proc. 81–19 provides that determination letters that express an opinion only as to whether amendments, in and of themselves, affect a plan’s qualification may be requested on either Form 6406 or on Form 5300. It also provides that a determination letter on the qualification of the entire plan, as amended, may be requested only by filing Form 5300 with a copy of the plan that includes all plan amendments made to the date of the application. This revenue procedure provides that ‘‘amendment only’’ letters will be issued only for applications filed on Form 6406. (See sections 7, 11, and 22.) Accordingly, Rev. Proc. 81–19 is superseded.

Types of requests .01 Determination letters may be requested on completed and proposed transactions as set forth in the table below:

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TYPE OF REQUEST FORMS

1. Initial Qualification, etc.

a. Individually Designed Plans (other than collectively bargained) 5300, Schedule Q

b. ESOPs 5300, 5309, Schedule Q

c. Collectively Bargained Plans 5303, Schedule Q,

REV. PROC.

SECTION

d. Adoption of Master & Prototype or Regional prototype plans (including

a collectively bargained plan if no non-collectively bargained employees are in the plan)

e. Volume Submitter Plans (including a collectively bargained plan if no

non-collectively bargained employees are in the plan)

5307, Schedule Q

f. Multiple Employer Plans 5300, Schedule Q

g. Foreign Situs Trusts 5300, Schedule Q

h. Group Trusts Cover letter 14

i. Section 420 determination letters Cover letter, Checklist, Appendix

2. Minor Amendments 6406 11

3. Termination

a. In general 5310, 6088, Schedule Q

b. Multiemployer plan covered by PBGC insurance 5303, 6088, Schedule Q

Note: Form 5310–A, Notice of Plan Merger, Consolidation, Spinoff or Transfer of Plan Assets or Liabilities, Notice of Qualified Separate Lines of Business, generally must be filed not less than 30 days before the merger, consolidation or transfer of assets and liabilities, the filing of Form 5310–A will not result in the issuance of a determination letter.

4. Special Procedures

a. Affiliated Service Group Status (§ 414(m)), Leased Employees

(§ 414(n))

5300, Schedule A

b. Minimum Funding Waiver 5300, Schedule Q

Areas in which determination letters will not be issued

.02 Determination letters issued in accordance with this revenue procedure do not include determinations on the following issues within the jurisdiction of the Assistant Commissioner (Employee Plans and Exempt Organizations):

(1) Issues involving §§ 72, 79, 105, 125, 127, 129, 402, 403 (other than 403(a)), 404, 409(1), 409(m), 412, 457, 511 through 515, and 4975 (other than 4975(e)(7)), unless these determination letters are authorized under section 7 of Rev. Proc. 96–4, page 94, this Bulletin.

(2) Plans or plan amendments for which automatic approval is granted pursuant to section 8.05 below.

(3) Plan amendments described below (these amendments will, to the extent provided, be deemed not to alter the qualified status of a plan under § 401(a)).

(a) An amendment solely to permit a trust forming part of a plan to participate in a pooled fund arrangement described in Rev. Rul. 81–100, 1981–1 C.B. 326;

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(b) An amendment that merely adjusts the maximum limitations under § 415 to reflect annual cost-of-living increases, other than an amendment that adds an automatic cost-of-living adjustment provision to the plan; and

(c) An amendment solely to include language pursuant to § 403(c)(2) of Title I of the Employee Retirement Income Security Act of 1974 (ERISA) concerning the reversion of employer contributions made as a result of mistake of fact.

(4) This section applies to determination letter requests with respect to plans that combine an ESOP (as defined in § 4975(e)(7) of the Code) with retiree medical benefit features described in § 401(h) (‘‘HSOPs’’).

(a) In general, determination letters will not be issued with respect to plans that combine an ESOP with an HSOP with respect to:

(i) whether the requirements of § 4975(e)(7) are satisfied;

(ii) whether the requirements of § 401(h) are satisfied; or

(iii) whether the combination of an ESOP with an HSOP in a plan adversely affects its qualification under § 401(a).

(b) A plan is considered to combine an ESOP with an HSOP if it contains ESOP provisions and § 401(h) provisions.

(c) However, an arrangement will not be considered covered by section 3.02(4) of this revenue procedure if, under the provisions of the plan, the following conditions are satisfied:

(i) No individual accounts are maintained in the § 401(h) account (except as required by § 401(h)(6));

(ii) No employer securities are held in the § 401(h) account;

(iii) The § 401(h) account does not contain the proceeds (directly or otherwise) of an exempt loan as defined in § 54.4975–7(b)(1)(iii) of the Pension Excise Tax Regulations; and

(iv) The amount of actual contributions to provide § 401(h) benefits (when added to actual contributions for life insurance protection under the plan) does not exceed 25 percent of the sum of: (1) the amount of cash contributions actually allocated to participants’ accounts in the plan and (2) the amount of cash contributions used to repay principal with respect to the exempt loan, both determined on an aggregate basis since the inception of the § 401(h) arrangement.

(5) Transactions which include transfers of excess assets from ongoing defined benefit plans to defined contribution plans (including the allocation of excess assets in an ongoing defined benefit plan to separate accounts that are established in that plan creating a plan described in § 414(k)) or transfers in connection with the amendment of a defined benefit plan to create a floor offset arrangement with a defined contribution plan (including the establishment of the separate accounts used as offsets in the plan that had been solely a defined benefit plan resulting in a plan described in § 414(k)).

GATT .03 Until further notice is given, determination letters, other than those issued for terminating plans, will not include consideration by the Service of any amendments to the qualification requirements made by the Uruguay Round Agreements Act, Pub. L. 103–465 (GATT). Until such notice is given, plans, other than terminating plans, that include provisions that reflect the GATT amendments to the qualification requirements will not be subject to adverse determination letters by reason of the inclusion of such provisions. However, favorable letters issued for plans, other than terminating plans, may not be relied upon with respect to whether such provisions satisfy the qualification requirements as amended by GATT.