SECTION 8. OPINION LETTERS SCOPE

.01 General Limits on Opinion Letters

• Opinion letters will be issued only to sponsors or mass submitters and do not constitute rulings or determinations as to either the qualification of the plans as adopted by particular employers, or, in the case of prototype plans, the exempt status of related trusts or custodial accounts.

.02 Nonapplicability of the Procedure to IRAs and SEPs - Opinion letters will not be issued under this revenue procedure for prototype plans intended to meet the requirements for individual savings programs or simplified employee pension programs under § 408 (see Rev. Proc. 87–50, 1987–2 C.B. 647, Rev. Proc. 97–29, 1997–1 C.B. 698, and Rev. Proc. 98–59, 1998–50 I.R.B. 8). .03 Areas Not Covered by Opinion Letters - Opinion letters will not be issued for:

1 Multiemployer plans or multiple employer plans, within the meaning of § 413(b) and § 413(c) respectively; 2 Plans that have been negotiated pursuant to a collective bargaining agreement and submitted to the Service as a plan maintained pursuant to a collective bargaining agreement. This does not preclude an M&P plan from covering employees of the employer who are included in a unit covered by a collective bargaining agreement or the adoption of an M&P plan pursuant to such agreement as a single employer plan which covers only employees of the employer;

3 Stock bonus plans; 4 Employee stock ownership plans; 5 Pooled fund arrangements contemplated by Rev. Rul. 81–100, 1981–1 C.B. 326; 6 Annuity contracts under § 403(b); 7 Defined contribution plans (other than target benefit plans) under which the

test for nondiscrimination under § 401(a)(4) is made by reference to benefits rather than contributions;

8 Cash balance or similar plans or defined benefit plans under which the test for nondiscrimination under § 401(a)(4) is made by reference to contributions rather than benefits;

9 Plans described in § 414(k) (relating to a defined benefit plan which provides a benefit derived from employer contributions which is based partly on the balance of the separate account of a participant);

10 Target benefit plans, other than plans which, by their terms, satisfy each of the safe harbor requirements described in § 1.401(a)(4)–8(b)(3)(i), as well as the additional rules in § 1.401(a)(4)–8(b)(3)(ii) through (vii);

11 Plans that provide for the disparity permitted under § 401(l), other than plans which use a definition of compensation that includes all compensation within the meaning of § 415(c)(3) and excludes all other compensation, or that otherwise satisfies § 414(s) under § 1.414(s)–(c);

12 Defined benefit plans that provide for employee contributions not allocated to separate accounts, other than plans that provide the minimum benefit described in § 1.401(a)(4)–6(b)(3)(ii);

13 Plans that would not satisfy the qualification requirements except as a governmental plan as described in § 414(d); 14 Church plans described in § 414(e) that have not made the election provided by § 410(d);

15 Plans under which the § 415 limitations are incorporated by reference;

16 Plans that do not contain a § 414(q) definition of highly compensated employee or under which the definition is incorporated by reference;

17 Fully-insured § 412(i) plans, other than plans that, by their terms, satisfy the safe harbor for § 412(i) plans in § 1.401(a)(4)–3(b)(5); 18 Plans that fail to contain a provision reflecting the requirements of § 414(u) (see Rev. Proc. 96–49).

.04 DOL Participant Loan Regulations not Addressed by Opinion Letter - M&P plans may adopt procedures to comply with the Department of Labor’s (DOL) participant loan regulations under § 408(b)(1) of ERISA in the plan or in a document that is separate from the basic

plan document, trust, and adoption agreement. The adoption of procedures outside of the plan document that are intended to comply with these regulations will not cause an M&P plan to be considered an individually designed plan. The Service will not review loan program procedures (whether in the plan or in a separate written document) to determine whether they comply with the requirements of the DOL regulations. Also, any opinion letter issued for an M&P plan will not consider whether loan program procedures may, in the operation of the plan, have an adverse effect on the qualified status of the plan. However, the loan program procedures under the plan may not be inconsistent with the qualification requirements of § 401(a). .05 Nontransferability of Opinion Letters - An opinion letter issued to a sponsor is not transferable to any other entity. For this purpose, a change of employer identification number is deemed to be a change of entity.