SECTION 3. MODIFICATION OF

REV. PROC. 2007–44

.01 Rev. Proc. 2007–44 is modified to provide the following:

(1) A sponsor or practitioner is not precluded from submitting an off-cycle application for an opinion or advisory letter on account of having also submitted an on-cycle application, provided the new application is for a plan that is word-for-word identical to a mass submitter plan that has received a favorable EGTRRA opinion or advisory letter, or for which an application for such a letter is pending, and the new application is filed according to the proce

dures governing mass submitter plans under Rev. Proc. 2005–16.

(2) Adopting employers of a new preapproved plan that is word-for-word identical to a mass submitter plan will not fail to be eligible for an applicable six-year cycle merely because the pre-approved plan is submitted to the Service for an opinion or advisory letter after the beginning of the announced adoption period for that cycle. Regardless of when the application is filed or when the opinion or advisory letter is issued, however, the announced adoption period for any applicable six-year cycle will not be extended.

(3) An otherwise eligible adopting employer as described in section 17 of Rev. Proc. 2007–44 may rely on a pre-approved plan’s current opinion or advisory letter to retroactively amend its plan under § 401(b) and Rev. Proc. 2007–44 by adopting the pre-approved plan within the announced adoption period for the applicable six-year cycle, regardless of whether the opinion or advisory letter application for the plan was filed off-cycle (and regardless of whether the plan is word-for-word identical to a mass submitter plan). Thus, for example, an eligible employer may rely on a pre-approved plan’s EGTRRA opinion or advisory letter to retroactively amend its plan for EGTRRA and the other qualification changes listed in Notice 2004–84, 2004–2 C.B. 1030, (“the 2004 Cumulative List”) by adopting the pre-approved plan within the adoption period ending on April 30, 2010, even if the application for the opinion or advisory letter for the plan was submitted off-cycle. Any EGTRRA opinion or advisory letters that have been issued with a caveat prohibiting retroactive re

October 6, 2008 827 2008–40 I.R.B.