SECTION 9. OPINION LETTERS INSTRUCTIONS TO SPONSORS

.01 Employee Plans Rulings and Agreements Issues Opinion Letters - Employee Plans Rulings and Agreements will, upon the request of a sponsor, issue an opinion letter as to the acceptability of the form of the sponsor’s M&P plan and any related trust or custodial account under §§ 401(a), 403(a), and 501(a). Review of the sponsor’s application may be assigned to a field office .

.02 Forms and Address for Requesting Opinion Letters - A request for an opinion letter relating to an M&P plan must be submitted on the current version of Form 4461, Application for Approval of Master or Prototype Defined Contribution Plan, Form 4461-A, Application for Approval of Master or Prototype Defined Benefit Plan, or Form 4461-B, Application for Approval of Master or Prototype Plan Mass Submitter Adopting Sponsor, as appropriate. As soon as possible after February 7, 2000, these forms will be available for downloading from the Internet at the following address: http://www.irs.gov . All information on the first page of the application must be typed. The request, including the required user fee, is to be sent to the Internal Revenue Service, Employee Plans Rulings and Agreements, Attention:

2000–6 I.R.B. 563 February 7, 2000

T:EP:RA:T:ICU, P.O. Box 14073, Ben Franklin Station, Washington, D.C. 20044.

.03 Effect of Failure to Disclose Material Fact or to Accurately Provide Information - The Service may determine, based on the application form, the extent of review of the M&P plan. 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 opinion 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.

.04 Expediting Review of Substantially Identical Plans - The Service reserves the right to review applications in any order which will expedite the processing of opinion letter applications. To expedite the review of substantially identical plans which are not described in section 16, relating to mass submitter plans, the Service encourages plan drafters and sponsors to include with each opinion letter application where it is appropriate a cover letter setting forth the following information:

1 The name and file folder number (if available) of the plan which, for review purposes, the plan drafter designates as the “lead plan” (including the name and EIN of the sponsor);

2 A list of all plans written by the plan drafter which are substantially identical to the lead plan (including the information described in 1);

3 A description of each place where the plan for which the application is being submitted is not word-for-word identical to the language of the lead plan, including an explanation of the purpose and effect of each such difference; and

4 A certification, made under penalty of perjury by the plan drafter, that the information described in 3 is true and complete. If the sponsor or plan drafter is aware that a lead plan or any substantially identical plan has been assigned for review to a tax law specialist, the cover letter should also indicate the name of the tax law specialist, if possible. To the extent feasible, lead plans and substantially identical plans should be submitted together. The Service will regard the information and certification described in 3 and 4 above as

a material representation for purposes of issuing an opinion letter.

.05 Separate Applications Required for Different Categories of M&P Plans / Use of Same Basic Plan Document by Multiple Plans - An M&P plan shall not contain any combination of profit-sharing, money purchase (other than target benefit), target benefit, non-integrated defined benefit, or integrated defined benefit plan features. However, separate defined contribution plans may have the same basic plan document and separate defined benefit plans may have the same basic plan document, but the provisions of the basic plan document must be identical for all plans using that document (that is, no elective or optional features). For example, a sponsor may submit six plans with respect to a given defined benefit basic plan document: integrated standardized, nonstandardized, and nonstandardized safe harbor plans; and nonintegrated standardized, nonstandardized, and nonstandardized safe harbor plans. A sponsor may also use one defined contribution basic plan document for a money purchase plan, a target benefit plan, and a profit-sharing plan. One basic plan document may not be used with respect to both defined benefit and defined contribution plans. A separate adoption agreement and completed application form must be submitted with respect to each defined benefit plan and each defined contribution plan. In the case of a simultaneous submission of plans using the same basic plan document, only one copy of the basic plan document need be provided. If the requests are not simultaneous, the sponsor must submit a copy of the basic plan document with each submission and include a cover letter identifying the original submission. The number of such basic plan document must remain the same as in the prior submission. Paired plans (as defined in section 4.13) must be submitted simultaneously.

.06 Sample Language - A Listing of Required Modifications (LRM) containing sample language to be used in drafting M&P plans is available from Employee Plans Rulings and Agreements. Such language is not automatically required in M&P plans but should be used as a guide in drafting such plans. An LRM may be obtained by writing to the Internal Revenue Service, Employee Plans Rulings and Agreements, Washington, D.C. 20224, At

tention T:EP:RA:T:ICU. To expedite the review of their plans, sponsors are encouraged to use LRM language and to identify where such language is being used in their plan documents. Requests for LRMs may be faxed to (202) 622-6199 (not a toll-free call). As soon as possible after February 7, 2000, the LRMs will also be accessible on the Internet at the following address: http://www.irs.gov . The LRMs can be found under “Tax Info for Business.”

.07 Additional Information May Be Requested - The Service may, at its discretion, require any additional information that it deems necessary. If a letter, requesting changes to plan documents, is sent to the plan’s sponsor or authorized representative, the changes must be received no later than 30 days from the date of the letter. If the changes are not received within 30 days, the application may be considered withdrawn. An extension of the 30 day time limit will only be granted for good cause.

.08 Inadequate Submissions - The Service will return, without further action, plans that are not in substantial compliance with the qualification requirements or plans that are so deficient that they cannot be reviewed in a reasonable amount of time. A plan may be considered not to be in substantial compliance if, for example, it omits or merely incorporates qualification requirements by reference to the applicable Code section. The Service will not consider these plans until after they are revised, and they will be treated as new requests as of the date they are resubmitted. No additional user fee will be charged if an inadequate submission is amended to be in substantial compliance and is resubmitted to the Service within 30 days following the date the sponsor is notified of such inadequacy.

.09 Material Furnished to Adopting Employers - A sponsor must furnish each adopting employer with a copy of the approved plan, copies of any subsequent amendments, and the most recently issued Internal Revenue Service opinion letter.

.10 Nonidentification of Questionable Issues May Cause Delay - If the plan document submitted as part of an opinion letter request contains a provision that gives rise to an issue for which contrary published authorities exist, failure to disclose and address significant contrary authorities may result in requests for additional

February 7, 2000 564 2000–6 I.R.B.

information, which will delay action on the request.

.11 Material Furnished to Employee Plans Determinations - Each mass submitter and each sponsor of a non-mass submitter plan must furnish a copy of the approved M&P plan and the Internal Revenue Service opinion letter to Employee Plans Determinations at the following address:

Internal Revenue Service Employee Plans Determinations P.O. Box 2508 Cincinnati, OH 45201 Attn: EP Determinations VSC Coordinator Room 4106 In addition, each mass submitter must submit a list to Employee Plans Determinations of all sponsors that have adopted a word-for-word identical plan of the mass submitter and a copy of any plan which contains minor modifications. Each mass submitter and sponsor of a non-mass submitter plan must also furnish Employee Plans Determinations with a copy of all amendments subsequently approved as to form by the Service. Copies of word-forword identical plans of mass submitters, as described in section 4.10 of this revenue procedure, need not be submitted to Employee Plans Determinations.