SECTION 17. ELIGIBILITY FOR

SIX-YEAR AMENDMENT/APPROVAL CYCLE

.01 An employer’s plan is treated as a pre-approved plan and is therefore eligible for a six-year amendment/approval cycle if:

(1) The employer is either a prior adopter described in section 17.02, a new adopter described in section 17.03, an intended adopter described in section 17.04, or the adopter of a replacement plan that meets the conditions described in section 17.05, and (2) The sponsor or practitioner maintaining the pre-approved plan timely submits an opinion or advisory letter application:

(a) By the application deadline of October 31st in the calendar year opening the six-year remedial amendment cycle for mass submitter and national sponsor pre-approved plans, or

(b) By the application deadline of January 31st of the calendar year following the opening of the six-year remedial amendment cycle for non-mass submitter, word-for-word adopter, and minor modifier pre-approved plans.

.02 An employer is a prior adopter if the employer’s pre-approved plan was both

3 Section 18.02(1) provides a later deadline of January 31, 2006 for the initial EGTRRA application for sponsors and practitioners maintaining mass submitter plans and national sponsors who submit applications for defined contribution M&P and volume submitter plans.

4 Form 8905, Certification of Intent to Adopt Pre-approved Plan is not expected to be available to the public for several months. Therefore, the Service will announce procedures for the submission of this and other relevant forms at www.irs.gov/ep, which will be updated periodically.

2005–37 I.R.B. 518 September 12, 2005

endar months and the next five-year cycle will be shortened accordingly.

Examples 6 through 9 below illustrate how different types of employer amendments to a pre-approved plan affect the employer’s current and/or subsequent remedial amendment cycle and which Cumulative List the Service will use to review an employer’s submission.

Example 6: Practitioner S maintains a defined contribution volume submitter specimen plan. Practitioner S timely submits an advisory letter application for the initial six-year remedial amendment cycle (that is, EGTRRA remedial amendment period) on or before January 31, 2006. Practitioner S receives an advisory letter dated January 31, 2008. The Service announces that February 1, 2008 until January 31, 2010 is the time period when employers must adopt a restated pre-approved plan and, if necessary, file a determination letter application. Employer T adopts the volume submitter specimen plan, now Plan K, on or before January 31, 2010. Employer T amends Plan K so that it is no longer word-for-word identical to the volume submitter specimen plan. Employer T submits a determination letter application using Form 5307, Application for Determination for Adopters of Master or Prototype or Volume Submitter Plans, on January 15, 2010. The Service will review the determination letter application based upon the Cumulative List used to review the underlying plan document, the 2004 Cumulative List.

The 2004 Cumulative List is used in this instance because the Service in its review determined that the amendments to the volume submitter specimen plan did not rise to the level that necessitated the treatment of Plan K as an individually designed plan which would require Employer T to file Form 5300, Application for Determination for Employee Benefit Plan . Accordingly, Employer T’s subsequent remedial amendment cycle will continue to be determined under Part IV of this revenue procedure. Practitioner S would submit an application for an advisory letter within the next six year remedial amendment cycle, which ends on January 31, 2017, on or before the submission deadline for such cycle of January 31, 2012. Employer T would adopt the restated pre-approved plan and, if necessary, file a determination letter application within the time period announced by the Service.

Example 7: Employer X has maintained Plan M, a defined contribution pre-approved plan, since 2002. The last digit of Employer X’s EIN is 8. Plan M is timely submitted for the initial six-year remedial amendment cycle (that is, the EGTRRA remedial amendment period) by the sponsor/practitioner on or before January 31, 2006. Generally, Employer X will have until January 31, 2011 (unless otherwise provided by the Service) to adopt the EGTRRA approved version of the pre-approved plan and have such adoption be considered timely under § 401(b) of the Code.

In 2007, Employer X decides Plan M no longer offers the flexibility it desires in providing the retirement benefits to its employees. As a result, Employer X amends and restates Plan M in 2007 into a defined contribution individually designed plan (with the intent of maintaining the qualified status of Plan M). Though Employer X is now sponsoring

merged into the other before the last day of the submission period as described in section 17.01(2) or (b) as of the last day of the submission period as described in section 17.01(2) both are members of the same controlled group of corporations within the meaning of § 414(b) or are trades or businesses which are under common control within the meaning of § 414(c).

.06 If the employer intends to adopt a replacement plan, the employer will not be required to execute Form 8905, Certifica- tion of Intent to Adopt Pre-approved Plan .

.07 If the employer applies for a determination letter for a replacement plan, the application must include a statement from the sponsor or practitioner maintaining the replaced plan indicating that the sponsor or practitioner bought out or merged with the sponsor or practitioner maintaining the replacement plan.

.08 If an employer described in section 17.03 or 17.05 fails to adopt a pre-approved plan or if an employer described in section 17.02 or 17.04 fails to adopt a pre-approved plan or individually designed plan by the adoption and/or submission deadline established by the Service for the current six-year remedial amendment cycle and the employer is unable to utilize its five-year remedial amendment cycle, ( e.g., the employer’s submission deadline under the five-year remedial amendment cycle precedes the adoption and/or submission deadline under the current six-year cycle), then the adopting employer may be eligible to correct for late adoption under the Employee Plans Compliance Resolution System.

.09 Effect of Adoption of an Individually Designed Plan:

(1) Although an employer described in section 17.09(2) will no longer be treated as maintaining a pre-approved plan, the employer will remain eligible for the current six-year remedial amendment cycle. The subsequent remedial amendment cycle is the first five-year cycle, as determined under Part III of this revenue procedure, that ends after the closing of the six-year cycle in which the determination letter application was submitted or could have been submitted. However, if the employer is also described in either section 24.02 of Rev. Proc. 2005–16 with respect to a volume submitter plan or section 19 of this revenue procedure with respect to an M&P plan, then the remedial amend

ment period under section 19 of this revenue procedure will apply;

(2) Under this section 17.09(2) an employer is entitled to remain in the six-year remedial amendment cycle in the current remedial amendment cycle if:

(a) the employer is a prior adopter of a pre-approved plan (as described in section 17.02) and after adopting this pre-approved plan the employer decides to adopt an individually designed plan whose underlying plan document is not based upon a pre-approved plan document, or

(b) the employer amends an approved M&P plan including its adoption agreement to incorporate a type of plan not allowed in the M&P program ( e.g., as described in section 6.03 of Rev. Proc. 2005–16), or (c) the employer amends an approved volume submitter plan to incorporate a type of plan not allowed in the volume submitter program ( e.g., as described in section 16.02 of Rev. Proc. 2005–16);

(3) Notwithstanding section 17.09(1), if an employer amends an approved M&P plan including its adoption agreement or an approved volume submitter plan to such an extent that the Service determines in its discretion that the plan falls under section 24.03 of Rev. Proc. 2005–16, then the plan will be considered individually designed for purposes of this revenue procedure. The remedial amendment cycle in which the employer impermissibly amends the M&P plan or volume submitter plan and all subsequent remedial amendment cycles will be determined under Part III of this revenue procedure;

(4) If an employer described in section 17.09(2), submits a determination letter application prior to the end of any given six-year cycle, then the subsequent remedial amendment cycle is the first five-year cycle, as determined under section 9 or 10 of this revenue procedure that ends after the closing of the six-year cycle in which the determination letter application was submitted. The employer’s application will be reviewed using the applicable Cumulative List based on the date of the application. However, if the end of the first five-year cycle that ends after the closing of the six-year cycle is less than twelve calendar months after the date of the favorable determination letter, then the plan’s current cycle is extended for twelve cal

September 12, 2005 519 2005–37 I.R.B.

an individually designed plan, Employer X, a prior adopter as described in section 17.02, is still eligible for the six-year remedial amendment cycle under section 17.09(2). The Service announces that February 2, 2008 until January 31, 2010 is the time period when employers must adopt a restated pre-approved plan and, if necessary, file a determination letter application. On June 1, 2009, Employer X submits a determination letter application using Form 5300, Application for Determination for Employee Benefit Plan, and pays the higher user fee. The Service will review the determination letter application based upon the 2008 Cumulative List (that is, the annual Cumulative List based on the date of the determination letter submission). The subsequent remedial amendment cycle is the first five-year cycle as determined under section 9 or 10 of this revenue procedure that ends after the closing of the six-year cycle in which the determination letter application was submitted; thus, the next five-year remedial amendment cycle ends January 31, 2014.

Example 8: Employer Y, whose EIN ends with an 8, maintains Plan N. Plan N is an adoption of an M&P defined benefit plan as of 2002. The M&P plan is timely submitted for the initial six-year remedial amendment cycle (that is, EGTRRA remedial amendment period) by the sponsor on or before January 31, 2008, and the sponsor receives an opinion letter dated January 31, 2010 for the M&P plan. Generally, Employer Y has until January 31, 2013 (unless otherwise provided by the Service) to adopt the EGTRRA approved version of the M&P plan and have such adoption be considered timely under § 401(b) of the Code.

On November 19, 2012, as part of adopting the EGTRRA approved version of an M&P plan, Employer Y adopts an amendment to Plan N that creates a plan described under §414(k). Although Employer Y adopts this amendment timely and in good faith with the intent of maintaining the qualified status of Plan N, this amendment changes the provisions of the M&P plan to create a type of plan that is not allowed in the M&P program. Since Employer Y has amended the M&P plan to incorporate a type of plan for which the Service will not issue an opinion letter,

Plan N is an individually designed plan. Though Employer Y is now sponsoring an individually designed plan, Employer Y, a prior adopter as described in section 17.02, is still eligible for the six-year remedial amendment cycle under section 17.09(2). The Service announces February 1, 2011 until January 31, 2013 as the time period for employers to adopt a restated pre-approved plan and, if necessary, file a determination letter application. Employer Y submits a determination letter application using Form 5300, Application for Determination for Employee Benefit Plan, and pays the higher user fee on March 31, 2012. The Service will review the determination letter application based upon the 2011 Cumulative List (that is, the annual Cumulative List based on the date of the determination letter submission). Employer Y receives a favorable determination letter dated March 31, 2013. Employer Y’s subsequent remedial amendment cycle is the first five-year cycle, as determined under section 9 or 10 of this revenue procedure that ends after the closing of the six-year cycle in which the determination letter application was submitted; thus, the next five-year remedial amendment cycle ends January 31, 2014. However, since the end of the first five-year cycle that ends after the closing of the six-year cycle is less than twelve calendar months after the date of the favorable determination letter, the current five-year cycle is extended by twelve calendar months as provided in section 17.09(5); thus the end of the five-year cycle is January 31, 2015, and not January 31, 2014. The subsequent remedial amendment cycle is shortened accordingly but the submission period deadline remains January 31, 2019.

Example 9: Employer Z, whose EIN ends with a 2, maintains Plan V. Plan V is a defined contribution plan and is an adoption of a volume submitter plan as of 2011. The volume submitter specimen plan is timely submitted for the second six-year remedial amendment cycle by the practitioner on or before January 31, 2012. The volume submitter practitioner receives an advisory letter dated January 31, 2014 for the VS specimen plan. Generally, Employer Z will have until January 31, 2017 (unless otherwise provided by the Service) to adopt the approved volume

submitter plan and to have such adoption be considered timely under § 401(b) of the Code.

On November 15, 2013, Employer Z adopts an amendment to Plan V that creates an employee stock ownership plan. Although Employer Z adopts this amendment timely and in good faith with the intent of maintaining the qualified status of Plan V, this amendment changes the provisions of the volume submitter plan to create a type of plan that is not allowed in the volume submitter program. Since Employer Z has amended the volume submitter plan to incorporate a type of plan for which the Service will not issue an advisory letter, Employer Z submits a determination letter application for Plan V by November 20, 2013 using Form 5300, Application for De- termination for Employee Benefit Plan, and pays the higher user fee. The Service would use the 2012 Cumulative List in its review of the determination letter submission. Employer Z receives a favorable determination letter dated November 20, 2014. Employer Z’s subsequent remedial amendment cycle is the first five-year cycle, as determined under section 9 or 10 of this revenue procedure that ends after the closing of the six-year cycle in which the determination letter application was submitted; thus, the next five-year remedial amendment cycle ends January 31, 2018.