SECTION 9. DETERMINATION

LETTER FILING PROCEDURES FOR M&P AND VOLUME SUBMITTER PLANS

.02 If an employer can rely on a favorable opinion or advisory letter pursuant to section 19 of Rev. Proc. 2005–16, the opinion or advisory letter shall be equivalent to a favorable determination letter. For example, the favorable opinion or advisory letter shall be treated as a favorable determination letter for purposes of section 21 of this revenue procedure, regarding the effect of a determination letter, and section 5.01(4) of Rev. Proc. 2003–44, 2003–1 C.B. 1051, regarding the definition of “favorable letter” for purposes of the Employee Plans Compliance Resolution System.

Scope .01 This section contains procedures for requesting determination letters for adopting employers of volume submitter plans and M&P plans.

Determination letter for adoption of volume submitter plan

.02 With respect to determination letters for adopting employers of volume submitter plans:

(1) A request for a determination letter for an employer’s adoption of an approved volume submitter plan must be sent to the address provided in section 6.17.

(2) The request for a determination letter must include the following:

(a) Form 5307, Application for Determination for Adopters of Master or Prototype or Vol- ume Submitter Plans (Schedule Q is optional);

(b) Form 2848, Power of Attorney and Declaration of Representative, or other written authorization allowing the volume submitter practitioner to act as a representative of the employer with respect to the request for a determination letter;

(c) A copy of the advisory letter for the practitioner’s volume submitter specimen plan;

(d) A copy of the plan and trust instrument or, if the employer has made no changes to the specimen plan and trust other than completing options permitted under the adoption agreement, a copy of the completed adoption agreement;

(e) A written representation made by the volume submitter practitioner which:

(i) states whether the plan and trust instrument are word-for-word identical to the approved specimen plan;

(ii) if the plan and trust are not word-for-word identical to the approved specimen plan, explains how the plan and trust instrument differ from the approved specimen plan, describing the location, nature and effect of each deviation from the language of the approved specimen plan; and

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Determination letter for adoption of M&P plan

(iii) if the latest advisory letter for the approved specimen plan does not consider all the changes made by GUST, states that the plan satisfies all requirements of GUST, including those first effective in plan years beginning after December 31, 1998, and identifies those deviations from the language of the approved specimen plan that are intended to satisfy specific GUST requirements;

(f) A copy of the plan’s latest favorable determination letter, if applicable; and

(g) Any other information or material that may be required by the Service.

(3) Deviations from the language of the approved specimen plan will be evaluated based on the extent and complexities of the changes. If the changes are determined not to be compatible with the volume submitter program, the Service may require the applicant to file Form 5300 and pay the higher user fee.

(4) An employer will not be treated as having adopted a volume submitter plan if the employer has signed or otherwise adopted the plan prior to the date on the volume submitter specimen plan’s advisory letter. In this case, the determination letter application for the employer’s plan may not be filed on Form 5307 and will not be eligible for a reduced user fee. A determination letter application for a volume submitter plan must be based on the approved volume submitter specimen plan with any applicable modifications.

(5) In addition, the practitioner will be able to file determination letter requests on behalf of employers adopting substantially similar plans who need a determination letter to have reliance or who otherwise desire a determination letter.

.03 Form 5307 must be filed to request a determination letter for the adoption of an M&P plan by an adopting employer. Schedule Q may be filed as an attachment to Form 5307.

Required information .04 The determination letter request must include the following:

(1) An adoption agreement showing which elections the employer is making with respect to the elective provisions contained in the plan;

(2) A copy of the plan’s most recent opinion letter; and

(3) In the case of a determination letter request for an M&P plan that uses a separate trust or custodial account, a copy of the employer’s trust or custodial account document.

Amended plan is treated as an individually-designed plan

Requests made prior to the issuance of opinion letter

.05 Except to the extent provided in section 5.02 and 19.03 of Rev. Proc. 2005–16, an employer that amends any provision of an M&P plan or its adoption agreement (other than to choose among the options offered by the sponsor if the plan permits or contemplates such options), or an employer that chooses to discontinue participation in such a plan as amended by its sponsor and does not substitute another approved plan referred to in this section is considered to have adopted an individually-designed plan. The requirements stated in this revenue procedure relating to the issuance of determination letters for individually-designed plans will then apply to such plan. Also see section 19.01 of Rev. Proc. 2005–66.

.06 An application submitted by an employer with respect to an M&P plan will be treated as an application for an individually-designed plan if it is executed prior to the time the M&P plan is approved. Also see sections 5.11 and 19.03 of Rev. Proc. 2005–16 regarding the requirement that adopting employers sign new adoption agreements when M&P plans are restated.

EGTRRA .07 In accordance with Part IV of Rev. Proc. 2005–66, adopting employers of M&P plans and volume submitter plans have a six-year remedial amendment cycle. The Service’s announced deadline for an adopting employer to adopt the approved M&P or volume submitter plan will be the end of the plan’s remedial amendment cycle with respect to all disqualifying provisions for which the remedial amendment period would otherwise end during the cycle. An adopting employer of a M&P plan or a volume submitter plan who must obtain a determination letter for reliance under EGTRRA or who desires a determination letter for additional

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reliance under EGTRRA must not submit such determination letter application until the Service’s announced deadline for employers to adopt a pre-approved plan and, if necessary, file a determination letter application, as described in Part IV of Rev. Proc. 2005–66. See section 17 of Rev. Proc. 2005–66 for the eligibility requirements that must be satisfied in order to be considered an adopting employer of a M&P plan or a volume submitter plan and thus eligible for the six-year remedial amendment cycle.