SECTION 20. HOW DOES THE

SERVICE HANDLE DETERMINATION LETTER REQUESTS?

(6) Whether the applicant is claiming in the application that the plan meets the requirements of § 410(b)(1)(A), and, if not, the coverage schedule required by the application in the case of plans not meeting the requirements of such section. However, once an interested party or designated representative receives a notice of final determination, the applicant must, upon request, make available to such interested party (whether or not the plan has less than 26 participants) an updated copy of the plan and related trust agreement (if any) and the application for determination.

.07 Information of the type described in § 6104(a)(1)(D) should not be included in the application, plan, or related trust agreement submitted to the Service. Accordingly, such information should not be included in any of the material required by section 19.05 or 19.06 to be available to interested parties.

.08 Unless provided in the notice, there shall be made available to interested parties under a procedure described in section 19.04, any additional document dealing with the application which is submitted by or for the applicant to the Service, or furnished by the Service to the applicant; provided, however, if there would be less than 26 participants in the plan as described in the application (including, as participants, former employees with vested benefits under the plan, beneficiaries of deceased former employees currently receiving benefits under the plan, and employees who would be eligible to participate upon making mandatory employee contributions, if any), such additional documents need not be made available to interested parties who are not participants (as described above) until they, or their designated representative, receive a notice of final determination. The applicant may also withhold from such inspection and copying information described in § 6104(a)(1)(C) and (D) which may be contained in such additional documents.

.09 Unless provided in the notice, there shall be made available to all interested parties under a procedure described in section 19.04 the material described in sections 19.02 through 19.07 above.

Oral advice .01 Oral advice.

(1) The Service does not issue determination letters on oral requests. However, personnel in the key district offices ordinarily will discuss with taxpayers or their representatives inquiries regarding: substantive tax issues; whether the Service will issue a determination letter on particular issues; and questions relating to procedural matters about submitting determination letter requests. Any discussion of substantive issues will be at the discretion of the Service on a time available basis, will not be binding on the Service, and cannot be relied upon as a basis of obtaining retroactive relief under the provisions of § 7805(b). A taxpayer may seek oral technical assistance from a taxpayer service representative in a district office or Service Center when preparing a return or report, under established procedures. Oral advice is advisory only, and the Service is not bound to recognize it in the examination of the taxpayer’s return.

(2) The advice or assistance furnished, whether requested by personal appearance, telephone, or correspondence will be limited to general procedures, or will direct the inquirer to source material, such as pertinent Code provisions, regulations, revenue procedures, and revenue rulings that may aid the inquirer in resolving the question or problem.

Conferences .02 A key district director may grant a conference upon written request from a taxpayer or his representative, provided the request shows that a substantive plan, amendment, etc., has been developed for submission to the Service, but that special problems or issues are involved, and the key district director concludes that a conference would be warranted in the interest of facilitating review and determination when the plan, etc., is formally submitted.

177 Sec.

Determination letter based solely on administrative record

.03 Administrative Record

(1) In the case of a request for a determination letter, the determination of the key district director or the appeals office on the qualification or non-qualification of the retirement plan shall be based solely upon the facts contained in the administrative record. The administrative record shall consist of the following:

(a) The request for determination, the retirement plan and any related trust instruments, and any written modifications or amendments made by the applicant during the proceedings within the Service;

(b) All other documents submitted to the Service by, or on behalf of, the applicant with respect to the request for determination;

(c) All written correspondence between the Service and the applicant with respect to the request for determination and any other documents issued to the applicant from the Service;

(d) All written comments submitted to the Service pursuant to sections 18.01(1), (2), and (3) above, and all correspondence relating to comments submitted between the Service and persons (including PBGC and the Department of Labor) submitting comments pursuant to sections 18.01(1), (2), and (3) above;

(e) In any case in which the Service makes an investigation regarding the facts as represented or alleged by the applicant in the request for determination or in comments submitted pursuant to sections 18.01(1), (2), and (3) above, a copy of the official report of such investigation;

(2) The administrative record shall be closed upon the earlier of the following events:

(a) The date of mailing of a notice of final determination by the Service with respect to the application for determination; or

(b) The filing of a petition with the United States Tax Court seeking a declaratory judgment with respect to the retirement plan.

(3) Any oral representation or modification of the facts as represented or alleged in the application for determination or in a comment filed by an interested party, which is not reduced to writing shall not become a part of the administrative record and shall not be taken into account in the determination of the qualified status of the retirement plan by the key district director, or the appeals office.

Notice of final determination .04 In the case of final determination, the notice of final determination

(1) shall be the letter issued by the key district director, or the appeals office which states that the applicant’s plan satisfies the qualification requirements of the Code. The favorable determination letter will be sent by certified or registered mail where either an interested party, the Department of Labor, or the PBGC has commented on the application for determination.

(2) shall be the letter issued, by certified or registered mail, by the key district director, or the appeals office subsequent to a letter of proposed determination, stating that the applicant’s plan fails to satisfy the qualification requirements of the Code.

Issuance of the notice of final determination

.05 The key district director, or the appeals office will send the notice of final determination to the applicant, to the interested parties who have previously submitted comments on the application to the Service (or to the persons designated by them to receive such notice), to the Department of Labor in the case of a comment submitted by the Department, and to PBGC if it has filed a comment.

Key district offices .06 Following are the key district offices that issue determination letters and the areas covered by each:

KEY DISTRICT IRS DISTRICTS COVERED

Cincinnati Indiana, Kentucky, Michigan, Ohio, West Virginia

Baltimore Delaware, District of Columbia, Maryland, New Jersey, Pennsylvania, Virginia, any U.S. possession or foreign country

Chicago Illinois, Iowa, Minnesota, Missouri, Montana, Nebraska, North Dakota, South Dakota, Wisconsin

Sec. 178

Brooklyn Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, Vermont Atlanta Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee

Dallas Arizona, Colorado, Kansas, Oklahoma, New Mexico, Texas, Utah, Wyoming

Los Angeles Alaska, California, Hawaii, Idaho, Nevada, Oregon, Washington

NOTE: The preceding list does not reflect the reorganization of districts and regions pursuant to Treasury Order No. 150–01, dated September 28, 1995, 1995–44 I.R.B. 23. Previously, on January 28, 1995, the Commissioner of Internal Revenue announced that the Service will centralize its employee plans and exempt organizations determination letter program in Cincinnati, Ohio. The centralization will be phased in, one key district at a time, beginning in 1996. Announcement 95–51, 1995–25 I.R.B. 132, states that the Service will notify the public in advance of the phase in of each key district office. Until such notice is given, employers and organizations should continue to submit their requests for determination letters to the key district offices designated above.