SECTION 7. 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). .02 Procedure 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 Pro- totype Defined Contribution Plan, Form 4461–A, Application for Approval of Mas- ter or Prototype Defined Benefit Plan, or Form 4461–B, Application for Approval of Master or Prototype Plan Mass Submit- ter Adopting Sponsor, as appropriate. The forms (and instructions) specify what to include with the application. These forms may be downloaded 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 must be sent to the address in section 20. The Service intends to revise Form 8717, User Fee for Employee Plan Determination Let- ter Request, so that it applies to a request

for an opinion letter under the M&P program. Until the form has been revised, an M&P request should continue to include the applicable user fee with the submission.

.03 Expediting Review of Substantially Identical Plans — The Service reserves the right to review applications in any order that will expedite the processing of opinion letter applications, subject to section 21.03. To expedite the review of substantially identical plans that are not 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 that, 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 that are substantially identical to the lead plan (including the information described in (1) above);

(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) above 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 specialist, the cover letter should also indicate the name of 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.

.04 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 doc

2005–10 I.R.B. 681 March 7, 2005

cur once every six years. Further, sponsors must make reasonable and diligent efforts to ensure that each employer amends its plan when necessary as noted in section 8.02. .04 Adopting Employers - The Service will announce when adopting employers must adopt amendments to comply with new guidance issued by the Service. Regardless of when amendments are required to be made, adopting employers must operationally comply as of the applicable effective date of the new guidance.

.05 Loss of Qualified Status - If a sponsor reasonably concludes that an employer’s M&P plan may no longer be a qualified plan and the sponsor does not or cannot submit a request to correct the qualification failure under the Employee Plans Compliance Resolution System (EPCRS), it is incumbent on the sponsor to notify the employer that the plan may no longer be qualified, advise the employer that adverse tax consequences may result from loss of the plan’s qualified status, and inform the employer about the availability of EPCRS. See Rev. Proc. 2003–44, 2003–1 C.B. 1051.