SECTION 19. OPTION TO PERMIT

ADOPTING EMPLOYER TO AMEND M&P PLAN AND REMAIN IN SIX-YEAR REMEDIAL AMENDMENT CYCLE

.01 Generally, an employer that amends any provision of an approved M&P plan including its adoption agreement (other than to change the choice of options, if the plan permits or contemplates such a change) is considered to have adopted an individually designed plan. (See section 5.02 of Rev. Proc. 2005–16.) .02 Plan amendments that are adopted timely and in good faith with the intent of maintaining the qualified status of the plan by employers sponsoring M&P plans will be disregarded for purposes of determining

February 1, 2013 through January 31, 2014

February 1, 2013 through October 31, 2013

an employer’s remedial amendment cycle. Thus, the plan will continue to be treated as an M&P plan for purposes of this revenue procedure and therefore eligible for the six-year remedial amendment cycle on a continuing basis as provided in section 24.02 of Rev. Proc. 2005–16, unless one of the following occurs:

(1) The employer adopts one or a series of amendments that either by itself or taken together, causes the plan to fall into one of the categories listed in section 6.03 of Rev. Proc. 2005–16, or the Service uses its discretion under section 24.03 of Rev. Proc. 2005–16 to determine that the plan is individually designed due to the amendment, or

(2) The adopting employer severs ties with the M&P sponsor (that is, does not adopt a pre-approved plan with a current opinion or advisory letter for the applicable remedial amendment cycle).

.03 An employer that adopts an amendment which causes an M&P plan to be treated as an individually designed plan under section 19.01 of this revenue procedure, but for remedial amendment cycle purposes remains eligible for the six-year remedial amendment cycle under section 19.02 of this revenue procedure, must file

a determination letter application (that is, a Form 5300) for reliance. The determination letter application should be filed during the approximate two-year period within the six-year remedial amendment cycle that the Service announces for employers to adopt and submit determination letter applications, (if applicable). The Service will use the applicable Cumulative List based on the date of the determination letter submission in its review. Procedures for filing the Form 5300 are similar to the procedures set forth in section 9.09 of Rev. Proc. 2005–6, for volume submitter plans, except for the following:

(1) A list of modifications is not required to be included.

(2) Any changes adopted by the employer must be made in the form of an amendment and not incorporated into the underlying M&P plan document.

.04 If the employer is required to obtain a determination letter in order to have reliance, then the sponsor’s authority to amend on behalf of the adopting employer is conditioned on the plan being covered by a favorable determination letter. However, the sponsor will no longer have the authority to amend on behalf of the employer if the amendment falls into one of

September 12, 2005 521 2005–37 I.R.B.

the categories listed in section 6.03 of Rev. Proc. 2005–16 or section 24.03 of Rev. Proc. 2005–16.