SECTION 9. ADVISORY LETTER

AND DETERMINATION LETTER FILING PROCEDURES FOR M&P AND VOLUME SUBMITTER PLANS

Scope .01 This section contains procedures for requesting advisory letters and determination letters for volume submitter plans and determination letters for M&P plans.

Description of volume submitter program

.02 Under the volume submitter program, a practitioner who qualifies may request the Service to issue an advisory letter regarding a volume submitter specimen plan. A specimen plan is a sample plan of a practitioner (rather than the actual plan of an employer) that contains provisions that are identical or substantially similar to the provisions in plans that such practitioner’s clients have adopted or are expected to adopt. Once the Service has approved the specimen plan, employers who adopt the same plan and meet the conditions described in section 8 of this revenue procedure will be able to rely on the advisory letter to the extent provided in section 8. In addition, the practitioner will be able to file determination letter requests on behalf of employers adopting substantially similar plans who need a determination letter to have reliance or who otherwise desire a determination letter.

Definition of volume submitter plan .03 A volume submitter plan is a profit-sharing plan (without a § 401(k) arrangement), a profit-sharing plan (with a § 401(k) arrangement), a money purchase pension plan, or a defined benefit plan that is submitted under the procedures described in this section 9 for filing requests for volume submitter advisory letters (with respect to the specimen plan) and requests for determination letters (with respect to an employer’s adoption of a plan that is substantially similar to an approved specimen plan). The Service will not accept volume submitter requests with respect to ESOPs or other stock bonus plans or cash balance or similar defined benefit plans.

Incorporation by reference .04 Incorporation by reference in a volume submitter plan is subject to the limits described in sections 5.18 and 8.03 of Rev. Proc. 2000–20.

User fees .05 Rev. Proc. 2002–8 provides reduced user fees for requests under the volume submitter program if certain requirements are satisfied. For adopting employers to be entitled to file a request for a determination letter with the lower fees, the volume submitter practitioner must certify at the time of filing a request for an advisory letter for the specimen plan that at least 30 employers are expected to adopt plans that are substantially similar in form to the specimen plan. Also, the volume submitter practitioner must be a representative of the employer when the employer’s determination letter application is filed. Although the volume submitter is not required to submit a list of adopting employers, the Service reserves the right to request such a list. Reduced user fees also apply to advisory letter applications for volume submitter specimen plans that are identical to volume submitter lead specimen plans. See section 17.02 of Rev. Proc. 2000–20.

Advisory letter for specimen plan .06 With respect to advisory letters for volume submitter specimen plans:

(1) A request for approval of a volume submitter specimen plan must be sent to the volume submitter coordinator for EP Determinations at the following address:

Internal Revenue Service P.O. Box 2508

2002–1 I.R.B 223 January 7, 2002

Cincinnati, OH 45201 Attn: VSC Coordinator Room 5106

A request shipped by Express Mail or a delivery service should be sent to:

Internal Revenue Service 550 Main Street Cincinnati, OH 45202 Attn: VSC Coordinator Room 5106

(2) The request for approval must include the following:

(a) A copy of the specimen plan and any related specimen trust instrument;

(b) A cover letter requesting approval that includes the certification described in section 9.05 above and indicates the type of plan for which approval is being requested;

(c) The required user fee submitted with Form 8717, User Fee for Employee Plan Determination Letter Request; and

(d) An index/table of contents listing the location of all variable sections.

(3) For procedures regarding volume submitter lead specimen plans, see section 17.02 of Rev. Proc. 2000–20.

Requests for information .07 The Service may, at its discretion, require any additional information it considers necessary to the issuance of a favorable advisory letter. If a letter requesting changes to the specimen plan is sent to the volume submitter practitioner 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 advisory letter application may be considered withdrawn. An extension of the 30–day time limit will only be granted for reasonable cause.

Determination letter for adoption of volume submitter plan

.08 With respect to determination letters for volume submitter plans:

(1) A request for a determination letter for an employer’s adoption of an approved volume submitter plan must be sent to the address provided in section 6.18.

(2) The request for a determination letter must include the following:

(a) Form 5307, Application for Determination for Adopters of Master or Prototype or Volume Submitter Plans (Schedule Q is optional);

(b) Written authorization allowing the volume submitter practitioner to act as a representative of the employer with respect to the request for a determination letter;

(c) A copy of the advisory letter for the practitioner’s volume submitter specimen plan;

(d) A copy of the plan and trust instrument and a written representation made by the volume submitter practitioner which:

(i) states whether the plan and trust instrument are word-for-word identical to the approved specimen plan;

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Determination letter for adoption of M&P plan

(ii) if the plan and trust are not word-for-word identical to the approved specimen plan, explains how the plan and trust instrument differ from the approved specimen plan, describing the location, nature and effect of each deviation from the language of the approved specimen plan; and

(iii) if the latest advisory letter for the approved specimen plan does not consider all the changes made by GUST and the determination letter application is for a complete GUST letter, states that the plan satisfies all requirements of GUST, including those first effective in plan years beginning after December 31, 1998, and identifies those deviations from the language of the approved specimen plan that are intended to satisfy specific GUST requirements;

(e) A copy of the plan’s latest favorable determination letter, if applicable; and

(f) Any other information or material that may be required by the Service.

(3) Deviations from the language of the approved specimen plan will be evaluated based on the extent and complexities of the changes. If the changes are determined not to be compatible with the volume submitter program, the Service may require the applicant to file Form 5300 and pay the higher user fee.

(4) An employer will not be treated as having adopted a volume submitter plan if the employer has signed or otherwise adopted the plan prior to the date on the volume submitter specimen plan’s advisory letter. In this case, the determination letter application for the employer’s plan may not be filed on Form 5307 and will not be eligible for a reduced user fee. A determination letter application for a volume submitter plan must be based on the approved volume submitter specimen plan with any applicable modifications.

.09 Form 5307 must be filed to request a determination letter for the adoption of an M&P plan. Schedule Q may be filed as an attachment to Form 5307.

Required information .10 The determination letter request must include the following:

(1) An adoption agreement showing which elections the employer is making with respect to the elective provisions contained in the plan;

(2) A copy of the plan’s most recent opinion letter; and

(3) In the case of a determination letter request for an M&P plan that uses a separate trust or custodial account, a copy of the employer’s trust or custodial account document.

Amended plan is treated as an individually-designed plan

Requests made prior to the issuance of opinion letter

.11 An employer that amends any provision of an M&P plan or its adoption agreement (other than to choose among the options offered by the sponsor if the plan permits or contemplates such options), or an employer that chooses to discontinue participation in such a plan as amended by its sponsor and does not substitute another approved plan referred to in this section is considered to have adopted an individually-designed plan. The requirements stated in this revenue procedure relating to the issuance of determination letters for individually-designed plans will then apply to such plan.

.12 An application submitted by an employer with respect to an M&P plan will be treated as an application for an individually-designed plan if it is submitted prior to the time the M&P plan is approved.

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