SECTION 8. APPROVED PLANS

• MAINTENANCE OF APPROVED STATUS

.01 Cumulative List in Six-Year Cycle

• Future guidance described in section 3.05 of this revenue procedure will provide that sponsors of pre-approved M&P plans must submit requests for opinion letters by a specified time period within a six-year cycle in order to continue to rely on their opinion letters. Sponsors may apply for opinion letters at other times, but these filings will be “off-cycle” filings as described in section 21.03. The Service will review the plans that have been submitted by the specified time period within a six-year cycle taking into account the applicable Cumulative List that identifies changes in the qualification requirements of the Code as well as items of published guidance relating to the plan qualification requirements, such as regulations and revenue rulings. However, in order to be qualified, a plan must comply with all relevant qualification requirements, not just those on the applicable Cumulative List. The letter will not take into account, and a sponsor may not rely on opinion letters with respect to, statutory changes enacted, and/or any guidance issued, after the issuance of the applicable Cumulative List, unless those changes and/or guidance are listed on the applicable Cumulative List.

.02 Subsequent Required Amendments

• Except as otherwise provided in future

guidance, in the event of changes in qualification requirements resulting from future guidance, or other regulatory or statutory changes that were not taken into account in issuing the opinion letter, an approved M&P plan must be amended by the sponsor and, if necessary, the employer, to retain its approved status if any provisions therein fail to meet the requirements of law, regulations, or other issuances and guidelines affecting qualification. Failure to so amend could result in the loss of a plan’s qualified status. However, this does not change the applicable period during the six-year cycle when sponsors must request opinion letters, which will still occur only once every six years. Sponsors are required to make reasonable and diligent efforts to ensure that each employer which, to the best of the sponsor’s knowledge, continues to maintain the plan as an M&P plan, amends its plan when necessary.

Even if future guidance provides that the plan need not be amended during a six year cycle to reflect a change in the qualification requirements, the plan must operationally comply with any changes in qualification requirements and the terms of the plan as ultimately amended to reflect the change. Failure to comply with this or any other requirement imposed on sponsors by this revenue procedure may result in the loss of eligibility to sponsor M&P plans and the revocation of opinion letters that have been issued to the sponsor.

.03 Amendments Following Revenue Rulings — If an approved M&P plan is required to be amended to retain its approved status as a result of publication by the Service of a revenue ruling, notice or similar statement in the Internal Revenue Bulletin (I.R.B.), with changes that were not taken into account in issuing the opinion letter then, unless specifically stated otherwise in the revenue ruling, etc., the time by which the sponsor must amend its M&P plan to conform to the requirements of the revenue ruling, etc., shall be the end of the one-year period after its publication in the I.R.B., and with respect to any adopting employer’s plan the effective date of such amendment shall be the first day of the first plan year beginning within such one-year period. As noted in section 8.02, this does not change the applicable period during the six-year cycle when sponsors must request opinion letters, which will still only oc

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addition, the M&P mass submitter may then submit requests for opinion letters under this section 12.01 for its other plans, regardless of the number of identical adopters of such other plans.

(3) The Service intends to send opinion letters to M&P mass submitters and sponsors (as well as advisory letters to VS mass submitters and practitioners) at approximately the same time within the applicable six-year cycle. In the interim, the Service will send an email to the applicable M&P or VS mass submitter, sponsor, or practitioner, if the Service determines that the plan appears to be in full compliance with the applicable qualification requirements based on the submissions and the completed review. Notwithstanding the above, this email only provides assurance that the Service believes the plan appears to meet the applicable qualification requirements under review as of the date of this email. This email correspondence is for the convenience of the applicable sponsor, practitioner or mass submitter, but does not constitute an official opinion or advisory letter. Until issuance of the official opinion or advisory letter no reliance exists. The Service reserves the right to require changes after the email is sent, in its sole discretion.

.02 Reduced Procedural Requirements for Sponsors That Use Mass Submitter Plans - A sponsor of an M&P plan of a mass submitter must obtain an opinion letter. For initial qualification, or where the sponsor’s plan includes modifications, the M&P mass submitter on behalf of the sponsor must submit to EP Rulings and Agreements a completed Form 4461-B which contains a declaration by the M&P mass submitter under penalty of perjury that the sponsor has adopted an M&P plan that is word-for-word identical, within the meaning of this section, to a plan of the M&P mass submitter, or an M&P plan that is a minor modification of the mass submitter’s plan. The Form 4461-B must be typed. If the sponsor is sponsoring a word-for-word identical plan (including a flexible plan), a copy of the plan need not be submitted. If the M&P mass submitter submits a plan with minor modifications, it must comply with the requirements of section 12.03(2). The application submitted on behalf of the sponsor must include the required user fee. Upon receipt of the request for an opinion letter, described above, the Service will, as soon as cleri

Agreements in writing of an approved M&P plan that is no longer used by any employer and which the sponsor no longer intends to offer for adoption. Such written notification should be sent to the address in section 20 and should refer to the file folder number appearing on the latest opinion letter issued.

.02 Notification to Employers - A sponsor that intends to abandon an approved M&P plan that is in use by any adopting employer must inform each adopting employer that the form of the plan has been terminated, that the employer’s plan will become an individually designed plan (unless the employer adopts another approved M&P plan), and that any employer reliance will not continue if there is a change in law or other change in the qualification requirements. After so informing all adopting employers, the sponsor should notify EP Rulings and Agreements in accordance with subsection .01 above.