SECTION 6. WHAT IS THE

GENERAL PROCEDURE FOR REQUESTING DETERMINATION LETTERS?

Scope .01 This section contains procedures that are generally applicable to all determination letter requests. Additional procedures for specific requests are contained in sections 7 through 17.

Qualified trusteed plans .02 A trust created or organized in the United States and forming part of a pension, profit-sharing, stock bonus or annuity plan of an employer for the exclusive benefit of its employees or their beneficiaries that meets the requirements of § 401 is a qualified trust and is exempt from federal income tax under § 501(a) unless the exemption is denied under § 502, relating to feeder organizations, or § 503, relating to prohibited transactions, if, in the latter case, the plan is one described in § 503(a)(1)(B).

Qualified nontrusteed annuity plans

Complete information required

Complete copy of plan and trust instrument required

.03 A nontrusteed annuity plan that meets the applicable requirements of § 401 of the Code and other additional requirements as provided under § 403(a) and § 404(a)(2), (relating to deductions of employer contributions for the purchase of retirement annuities), qualifies for the special tax treatment under § 404(a)(2), and the other sections of the Code, if the additional provisions of such other sections are also met.

.04 An applicant requesting a determination letter must file the material required by this revenue procedure with the appropriate key district director. The filing of the application, when accompanied by all information and documents required by this revenue procedure, will generally serve to provide the Service with the information required to make the requested determination. However, in making the determination, the Service may require the submission of additional information. Information submitted to the Service in connection with an application for determination may be subject to public inspection to the extent provided by § 6104.

.05 Except in the case of applications involving master and prototype plans filed on Form 5307, or minor amendments described in section 11, a complete copy of the plan and trust instrument is required to be included with the determination letter application. See sections 7.03 and 7.04 for what must be included with applications involving plan amendments that are not minor amendments.

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Section 9 of Rev. Proc. 97–4 applies

Separate application for each single § 414(l) plan

.06 Section 9 of Rev. Proc. 97–4 is generally applicable to requests for determination letters under this revenue procedure.

.07 A separate application is required for each single plan within the meaning of § 414(l). This requirement does not pertain to applications regarding the qualified status of group trusts.

Schedule Q .08 Schedule Q (Form 5300) must be filed with all determination letter applications, other than applications filed on Form 6406, applications relating to the qualified status of group trusts, and applications relating solely to the requirements of § 420. The applicant must indicate on Schedule Q whether a determination of any of the requirements referred to in sections 5.03 through 5.05 is requested, and must include with the application form the material and demonstrations called for in the instructions to Schedule Q.

Prior letters .09 If the plan has received a favorable determination letter in the past, the application must include a copy of the latest determination letter, if available. If the letter is not available, an explanation must be included with the application.

User fees .10 The appropriate user fee must be paid according to the procedures of Rev. Proc. 97–8. Form 8717, User Fee for Employee Plan Determination Letter Request, should accompany each determination letter request submitted to a key district office.

Interested party notification and comment

Contrary authority must be distinguished

Employer/employee relationship

Incomplete applications returned

Effect of failure to disclose material fact

.11 Before filing an application, the applicant requesting a determination letter must satisfy the requirements of § 3001(a) of ERISA, and § 7476(b)(2) of the Code and the regulations thereunder, which provide that an applicant requesting a determination letter on the qualified status of certain retirement plans must notify interested parties of such application. The general rules of the Service with respect to notifying interested parties of requests for determination letters relating to the qualification of plans involving §§ 401 and 403(a) are set out below in sections 18 and 19 of this revenue procedure.

.12 If the application for determination involves an issue where contrary authorities exist, failure to disclose or distinguish such significant contrary authorities may result in requests for additional information, which will delay action on the application.

.13 When, in connection with an application for a determination on the qualification of the plan, it is necessary to determine whether an employer-employee relationship exists, the key district director will make such determinations. In such cases, the application with respect to the qualification of the plan should be filed in accordance with the provisions of this revenue procedure, contain the information and documents in the instructions to the application, and be accompanied by a completed Form SS–8, Information for Use in Determining whether a Worker is an Employee for Federal Employment Taxes and Income Tax Withholding, and any information and copies of documents the organization deems appropriate to establish its status. The Service may, in addition, require further information that it considers necessary to determine the employment status of the individuals involved or the qualification of the plan. After the employer-employee relationships have been determined, the key district director may issue a determination letter as to the qualification of the plan.

.14 If an applicant requesting a determination letter does not comply with all the required provisions of this revenue procedure, the key district director, in his or her discretion, may return the application and point out to the applicant those provisions which have not been met. The request may also be returned pursuant to Rev. Proc. 97–8 if the correct user fee is not attached. If such a request is returned to the applicant, the 270-day period described in § 7476(b)(3) will not begin to run until such time as the provisions of this section have been satisfied.

.15 The Service may determine, based on the application form, the extent of review of the plan document. A failure to disclose a material fact or misrepresentation of a material fact on the application may adversely affect the reliance which would otherwise be obtained through issuance by the Service of a favorable determination letter. Similarly, failure to accurately provide any of the information called for on any form required by this revenue procedure may result in no reliance.

Data requirements .16 The applicant is responsible for the accuracy of any factual representations and conclusions contained in the application. In some circumstances, applicants may not be able to use precise data in preparing demonstrations or schedules that may be required to be

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submitted with the application. Therefore, the use of estimated data in these demonstrations and schedules is not prohibited. In addition, the data used may be for a prior plan year, provided the following conditions are satisfied: (1) the data is the most recent data available, (2) there is no misstatement or omission of material fact with respect to such prior year’s data, (3) there has been no material change in the facts (including a change in the benefits provided under the plan and employee demographics) since such prior plan year, (4) the same data is used throughout the application, (5) the data is relevant to the operational effect of the plan provisions that are under review, and (6) the applicant clearly discloses that prior year’s data is being submitted with the application. The use of estimated or prior year’s data is not a misrepresentation of material fact. A determination letter that is based on estimated or prior year’s data, however, may not be relied upon to the extent that such data does not satisfy the substantiation guidelines in Rev. Proc. 93–42.

Where to file request .17 Requests for determination letters are to be addressed to the key district director specified below, except as indicated.

(1) In the case of a plan of a single employer, the request is to be addressed to the key district director for the district that processes applications for the area in which the employer’s principal place of business is located. See Announcement 96–133 and the instructions to Form 8717, User Fee for Employee Plan Determination Letter Request, for the jurisdictions and mailing addresses of the key district offices.

(2) In the case of a multiemployer plan established or proposed by contributing employers with principal places of business located within the area of jurisdiction of more than one key district office, as an alternative to (1) above, the request may be addressed to the key district director for the area in which the trustee’s principal place of business is located. If the plan has more than one trustee, the request may be addressed to the key district director for the area in which the trustees usually meet.

(3) In the case of a plan maintained by more than one employer (other than a multiemployer plan), the applicant or plan administrator must file the appropriate form with the key district director for the area in which the principal place of business of the plan sponsor is located. This means the principal place of business of the association, committee, joint board of trustees or other similar group, or representatives of those who establish or maintain the plan.

(4) In the case of related employers described in § 414(b), (c), or (m), the request for any plan maintained by any member of the group must be addressed to the key district director for the area in which the principal place of business for the group of employers is located.

(5) In the case of a group trust arrangement under Rev. Rul. 81–100, the request on behalf of the master trust must be addressed to the key district director for the area in which the principal place of business of the trustee is located. Requests on behalf of the participating trusts and related plans must be addressed as otherwise provided in this section.

Withdrawal of requests .18 The applicant’s request for a determination letter may be withdrawn by a written request at any time prior to the issuance of a final adverse determination letter. If an appeal to a proposed adverse determination letter is filed, a request for a determination letter may be withdrawn at any time prior to the forwarding of the proposed adverse action to the chief, appeals office. In the case of a withdrawal, the Service will not issue a determination of any type. A failure to issue a determination letter as a result of a withdrawal will not be considered a failure of the Secretary or his delegate to make a determination within the meaning of § 7476. However, the Service may consider the information submitted in connection with the withdrawn request in a subsequent examination. Generally, the user fee will not be refunded if the application is withdrawn.