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 16.

January 5, 2004 204 2004-1 I.R.B.

Qualified trusteed plans .02 A trust created or organized in the United States and forming part of a pension, profitsharing, 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

.03 A nontrusteed annuity plan that meets the applicable requirements of § 401 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.

Complete information required .04 An applicant requesting a determination letter must file the material required by this revenue procedure with the Employee Plans Determinations manager (EP Determinations) at the address in section 6.18. 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.

Complete copy of plan and trust instrument required

Section 9 of Rev. Proc. 2004–4 applies

Separate application for each single § 414(l) plan

Coverage and nondiscrimination requirements

.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.

.06 Section 9 of Rev. Proc. 2004–4 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.

.08 An applicant may request that the plan be reviewed to determine that the ratio percentage test of § 410(b)(1) is satisfied or that the plan satisfies one of the design-based safe harbors under § 401(a)(4) by completing the appropriate elective lines on Form 5300 or Form 5307. Schedule Q (Form 5300) may be filed with the application, other than an application filed on Form 6406, to request consideration of the general test under § 401(a)(4), the average benefit test of § 410(b)(2), or any of the other requirements described on Schedule Q. The applicant must include with the application form the material and demonstrations called for in the instructions to Form 5300 or Form 5307, and, if applicable, 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.

Reliance on section 19 of Rev. Proc. 2000–20

.10 In general, the remedial amendment period for GUST ¹ ends on the later of February 28, 2002, or the last day of the first plan year beginning on or after January 1, 2001. Section 19 of Rev. Proc. 2000–20, as modified, provides an extension of the GUST remedial amendment period for employers who, by the deadline described in the preceding sentence, have adopted an M&P or volume submitter plan (a “pre-approved plan”) or certified their intent to adopt a pre-approved plan that has been restated for GUST. If the requirements for the extension are satisfied, the GUST remedial amendment period for the employer’s plan will not end before the

1 The term “GUST” refers to the following:

• the Uruguay Round Agreements Act, Pub. L. 103–465;

• the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. 103–353;

• the Small Business Job Protection Act of 1996, Pub. L. 104–188;

• the Taxpayer Relief Act of 1997, Pub. L. 105–34;

• the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105–206; and

• the Community Renewal Tax Relief Act of 2000, Pub. L. 106–554.

2004-1 I.R.B. 205 January 5, 2004

later of 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 or September 30, 2003. As a condition of the extension, a plan that is eligible for the extension must request a determination letter by the later of the end of the extended period or January 31, 2004, if a determination letter is required for reliance. ( See Rev. Proc. 2003–72 for additional rules.) Most adopting employers of M&P plans and many adopting employers of volume submitter plans will be entitled to at least limited reliance on their plan’s opinion or advisory letter pursuant to section 8 of this revenue procedure and therefore will not have to request a determination letter as a condition of the extension. If an employer files an application for the initial GUST determination letter for a plan in reliance on section 19 of Rev. Proc. 2000–20 (that is, after the later of February 28, 2002, or the last day of the first plan year beginning on or after January 1, 2001), the employer must include with the application evidence of eligibility for the extension under Rev. Proc. 2000–20. That is, the employer must include a copy of the prior plan or adoption agreement, including the opinion or advisory letter, a copy of a timely completed certification, or other acceptable evidence of eligibility. The plan sponsor should describe any special circumstances in a cover letter.

User fees .11 The appropriate user fee, if applicable, must be paid according to the procedures of Rev. Proc. 2004–8, page 240, this Bulletin. Form 8717, User Fee for Employee Plan Determination Letter Request, must accompany each determination letter request. If the criteria for the user fee exemption are met in accordance with Notice 2002–1, 2002–1 C.B. 283, or Notice 2003–49, 2003–32 I.R.B. 294, the certification on Form 8717 must be signed.

Interested party notification and comment

Contrary authority must be distinguished

.12 Before filing an application, the applicant requesting a determination letter must satisfy the requirements of section 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 17 and 18 of this revenue procedure.

.13 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.

Employer/employee relationship .14 The Service ordinarily does not make determinations regarding the existence of an employer-employee relationship as part of its determination of the qualification of a plan, but relies on the applicant’s representations or assumptions, stated or implicit, regarding the existence of such a relationship. The Service will, however, make a determination regarding the existence of an employer-employee relationship when so requested by the applicant. 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, Determination of Worker Status for Purposes of 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, EP Determinations may issue a determination letter as to the qualification of the plan.

Incomplete applications returned .15 If an applicant requesting a determination letter does not comply with all the required provisions of this revenue procedure, EP Determinations, in its discretion, may return the application and point out to the applicant those provisions which have not been met. The failure to provide information required by an application, including any supplemental information required by the instructions for the application, may result in the application being returned to the applicant as incomplete. The request will also be returned pursuant to Rev. Proc. 2004–8 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.

January 5, 2004 206 2004-1 I.R.B.

Effect of failure to disclose material fact

.16 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 that 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 .17 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 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. Regardless of whether the data is actual or estimated, or whether it is for the current or a prior year, data that is presented in a determination letter application must reflect any changes in the law that are considered by the Service in its determination of the plan’s qualified status.

Where to file requests .18 Requests for determination letters are to be addressed to EP Determinations at the following address:

Internal Revenue Service P.O. Box 192 Covington, KY 41012–0192

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

Internal Revenue Service 201 West Rivercenter Blvd. Attn: Extracting Stop 312 Covington, KY 41011

Determination letter applications will not be accepted via fax.

Submission of related plans .19 If applications for two or more plans of the same employer are submitted together, each application should include a cover letter that identifies the name of the employer and the plan numbers and employer identification numbers of all the related plans submitted together.

Submission of 30 or more applications by authorized representative

.20 An authorized representative who will be submitting determination letter applications for 30 or more plans at one time should pre-notify the Service of the submissions so that the Service can endeavor to ensure that the applications will be reviewed in one area. The pre-notification should be e-mailed to Jennifer.L.Frederick@irs.gov and should include the following information: the firm name, the names of the authorized representative(s) submitting the plans, the name and phone number of the contact person, the approximate number of submissions, and the expected date(s) of the submissions. Upon receipt of the e-mail, the representative will be contacted and assigned a number that must be entered in green ink at the upper left hand corner of the applications. For further discussion, see the Spring/Summer 2002 edition of the Employee Plans Newsletter.

2004-1 I.R.B. 207 January 5, 2004

Withdrawal of requests .21 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.

Right to status conference .22 An applicant for a determination letter has the right to a have a conference with the EP Determinations manager concerning the status of the application if the application has been pending at least 270 days. The status conference may be by phone or in person, as mutually agreed upon. During the conference, any issues relevant to the processing of the application may be addressed, but the conference will not involve substantive discussion of technical issues. No tape, stenographic, or other verbatim recording of a status conference may be made by any party. Subsequent status conferences may also be requested if at least 90 days have passed since the last preceding status conference.

How to request status conference .23 A request for a status conference with the EP Determinations manager is to be made in writing and is to be sent to the specialist assigned to review the application or, if the applicant does not know who is reviewing the application, to the EP Determinations manager at the address in section 6.18. If, pursuant to section 15, the application for a determination letter has been submitted to Employee Plans Technical (EP Technical) together with a request for a waiver of minimum funding, the request for a status conference should be sent to the actuary assigned to review the application or to the Actuarial manager, at the address in section 15.03. In this case, the right to a status conference will be with the EP Technical Manager.