SECTION 2. BACKGROUND

.01 Under § 401(b), plan sponsors have a remedial amendment period in which to adopt plan amendments for GUST. The end of the GUST remedial amendment period is the deadline for making all GUST plan amendments and other plan amendments specifically enumerated in Rev. Proc. 99–23, 1999–1 C.B. 920. The GUST remedial amendment period also applies with respect to all disqualifying provisions of new plans adopted or effective after December 7, 1994, and with respect to all plan amendments adopted after December 7, 1994, that would cause an existing plan to fail to be qualified.

.02 Section 1.401(b)–1(e)(3) of the Income Tax Regulations provides that the filing of a determination letter request on or before the end of a remedial amendment period will extend the period until the expiration of 91 days after (i) the date on which notice of final determination with respect to the request is issued by the Service, the request is withdrawn, or the request is otherwise finally disposed of by the Service; or (ii) the date on which a decision of the United States Tax Court regarding a timely filed petition for declaratory judgment becomes final. Accordingly, if a determination letter application is filed on or before the end of a remedial amendment period, amendments that are included with the application may be submitted in proposed (unadopted) form and need not be adopted before filing the determination letter application. Of course, all amendments needed to qualify the plan must then be adopted by the time described in § 1.401(b)–1(e)(3).

.03 Generally, the GUST remedial amendment period ended on the later of February 28, 2002, or the last day of the first plan year beginning on or after January 1, 2001. However, Rev. Proc. 2000–20, 2000–1 C.B. 553, (as modified by Rev. Proc. 2000–27, 2000–1 C.B. 1272; Rev. Proc. 2001–55, 2001–2 C.B. 552; Rev. Proc. 2002–6, 2002–1 C.B. 203; Rev. Proc. 2002–29, 2002–1 C.B. 1176; Rev. Proc. 2002–73, 2002–2 C.B. 932; and Notice 2001–42, 2001–2 C.B. 70) provides an extension of the GUST remedial amendment period for employers who, by the end of the GUST remedial

amendment period (determined without regard to the extension), have adopted a pre-approved plan or certified their intent to adopt such a plan. If the requirements for the extension are satisfied, the GUST remedial amendment period for the employer's plan will not end before the later of September 30, 2003, or the end of the 12 ^th month beginning after the date on which the Service issues a GUST opinion or advisory letter for the pre-approved plan.

.04 Certain conditions must be met for a plan to be eligible for the extension of the GUST remedial amendment period under Rev. Proc. 2000–20. One of these conditions is that a determination letter application for the plan must be filed within the extended GUST remedial amendment period if the employer is not able to rely directly on a favorable opinion or advisory letter under section 8 of Rev. Proc. 2003–6, 2003–1 I.R.B. 191. In accordance with § 1.401(b)–1(e)(3), employers that request determination letters within the extended GUST remedial amendment period may submit amendments that are in proposed form.

.05 For plans eligible for the extension under Rev. Proc. 2000–20, the end of the GUST remedial amendment period is generally also the deadline for the adoption of plan amendments required by Rev. Rul. 2001–62, 2001–2 C.B. 632, regarding changes to the mortality tables under § 417(e); Rev. Rul. 2002–27, 2002–1 C.B. 925, regarding the incorporation of deemed § 125 compensation in a plan’s § 415(c)(3) definition of compensation; and Notice 2001–37, 2001–1 C.B. 1340, regarding changes made by the Community Renewal Tax Relief Act of 2000 to the definitions of compensation in §§ 403(b)(3), 414(s)(2), and 415(c)(3).

.06 Notice 2001–42 provides a remedial amendment period under § 401(b), ending no earlier than the end of the 2005 plan year, in which any needed retroactive remedial plan amendments for the Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. 107–16, (EGTRRA), must be adopted (the EGTRRA remedial amendment period). The availability of the EGTRRA remedial amendment period is

2 In some cases, earlier adoption of good faith EGTRRA plan amendments may be necessary in order to avoid a decrease or elimination of benefits protected by § 411(d)(6). See the discussion of § 411(d)(6) in section III of Notice 2001–42.

2003-38 I.R.B. 579 September 22, 2003

if (i) the plan does not satisfy the timely amendment requirements of section 5 but would not be a late amender without regard to GUST and the other requirements described in section 2; and (ii) an application for a determination letter for the plan, including payment of a compliance fee of $250, is submitted by January 31, 2004. This fee is in addition to the determination letter user fee under Rev. Proc. 2003–8, 2003–1 I.R.B. 236, or its successor, if applicable.

.02 An application submitted under this section 6 should have the words “Rev. Proc. 2003–72” written on the top of the determination letter application form (generally Form 5307, Application for Determination for Adopters of Master or Prototype or Volume Submitter Plans ). The $250 compliance fee is to be paid by check or money order, made payable to the U.S. Treasury, and with “Rev. Proc. 2003–72” written on the check or money order. This $250 compliance fee should not be reported on Form 8717, User Fee for Employee Plan Determination Letter Request . The appropriate determination letter user fee under Rev. Proc. 2003–8 or its successor, if applicable, should be paid using a separate check or money order, with the words “User Fee” written on it and accompanied by a completed Form 8717. The completed application, with the two checks and all other required documents should be sent to the address indicated in the instructions for the determination letter application form.

.03 This section applies in lieu of Rev. Proc. 2003–44 to eligible plans that satisfy the requirements of this section, including plans for which determination letters would not have been required had the plans been timely amended to comply with GUST. For example, this section applies in lieu of Rev. Proc. 2003–44 to a standardized M&P plan that has not been amended to comply with GUST by September 30, 2003 (the end of the plan’s GUST remedial amendment period), provided an application for a determination letter for the plan, including payment of a compliance fee of $250, is submitted by January 31, 2004. Rev. Proc. 2003–44 applies to late amended or filed plans that are not eligible plans or for which determination letter applications are not filed by January 31, 2004.

amendments to adopting employers. As provided in Rev. Proc. 2002–29, if, as a result of a timely plan amendment to comply with the final and temporary regulations under § 401(a)(9), there is a disqualifying provision under § 401(b), the remedial amendment period with respect to the disqualifying provision will end at the end of the EGTRRA remedial amendment period.

.02 Sections 4 though 7, below, extend the time for filing determination letter applications for certain pre-approved plans to January 31, 2004. If a determination letter application is filed by January 31, 2004, for a plan that is eligible for the extension, the filing will extend the plan’s GUST remedial amendment period as provided in § 1.401(b)–1(e)(3). Accordingly, in this case, plan amendments for the final and temporary regulations under § 401(a)(9) would not have to be adopted prior to the 91 ^st day following issuance of the favorable determination letter.