SECTION 8. GUIDANCE REGARDING

CERTAIN CONTRACTS ISSUED BEFORE 2009

.01 Contracts issued before 2009 as part of employer’s plan . In the case of a contract issued after December 31, 2004 and before January 1, 2009 by an issuer that does not receive contributions under the plan in a year after the contract was issued ( e.g., due to the issuer having been discontinued as an issuer under the plan or the issuer having become an issuer under the plan due to the contract having been issued in a post-September 24, 2007 exchange permitted under Rev. Rul. 90–24, 1990–1 C.B. 97), the contract will not fail to satisfy § 403(b) for the year merely because the contract is not part of a written plan that satisfies § 1.403(b)–3(b)(3) of the 2007 regulations if the employer makes a reasonable, good faith effort to include the contract as part of the employer’s plan that satisfies § 1.403(b)–3(b)(3) of the 2007 regulations. For this purpose, a reasonable, good faith effort to include those contracts as part of the employer’s plan includes collecting available information concerning those issuers (for which purpose, the information is not required to be collected for issuers that ceased to receive contributions before January 1, 2005) and notifying them of the name and contact information for the person in charge of administering the employer’s plan for the purpose of coordinating information necessary to satisfy § 403(b). As an alternative to the actions described in the preceding sentence, a reasonable, good faith effort to include that contract as part of the employer’s plan also includes the issuer taking action before making any distribution or loan to the participant or beneficiary which constitutes a reasonable, good faith effort to contact the employer and exchange any information that may be needed in order to satisfy § 403(b) with the person in charge of administering the employer’s plan.

.02 Contracts issued before 2009 held for former employees or beneficiaries . In the case of an issuer that holds § 403(b) contracts under a § 403(b) plan, but which

1 See United States Department of Labor Field Assistance Bulletin No. 2007–02.

December 17, 2007 1186 2007–51 I.R.B.

them? Should the provisions found in section 7.3 of the model language, which have been prepared to satisfy the 2007 final regulations requirements for the plan document to reflect the available vendors, be expanded, including changes to reflect the special relief in section 8 of this revenue procedure?

Comments should be sent to the following address: Internal Revenue Service, Attn: CC:PA:LPD:PR (Rev. Proc. 2007–71), Room 5203, P. O. Box 7604, Ben Franklin Station, Washington, DC 20044. Written comments may be hand delivered Monday through Friday between 8 a.m. and 4 p.m. to: Internal Revenue Service, Courier’s Desk, Attn: CC:PA:RU (Section 403(b) Plans), 1111 Constitution Avenue, NW, Washington, DC 20224. Alternatively, written comments may be submitted electronically via the Internet to notice.comments@irscounsel.treas.gov (Rev. Proc. 2007–71). Comments should be received by March 16, 2008.