SECTION 1. PURPOSE

.01 This revenue procedure establishes an opinion letter program for § 403(b) prototype plans. Under this program, the Service will accept applications for opinion letters regarding the acceptability under § 403(b) of the Internal Revenue Code of the form of prototype plans start

ing [DATE TO BE DETERMINED] . The procedures and rules of this program are generally similar to those that apply under Rev. Proc. 2005–16, 2005–1 C.B. 674, to the Service’s opinion letter program for master and prototype (M&P) plans qualified under § 401(a), except for differences related to the requirements of § 403(b).

May 4, 2009 917 2009–18 I.R.B.

which the model plan language may be relied upon, is not modified by this revenue procedure. Accordingly, absent further notice, public schools and other eligible employers may continue to utilize the language in Rev. Proc. 2007–71 as model or sample language.

.07 Notice 2009–3, 2009–2 I.R.B. 250, states that the Service and Treasury have concluded that compliance with the 2007 regulations would be facilitated by the establishment of both pre-approved and individually designed plan programs and that transition relief should be provided to all § 403(b) plan sponsors who have made appropriate efforts to comply with the written plan requirement in the 2007 regulations. The transition relief under the notice provides that the Service will not treat a § 403(b) plan as failing to satisfy the requirements of § 403(b) and the 2007 regulations during the 2009 calendar year, provided that:

(1) on or before December 31, 2009, the sponsor of the plan has adopted a written § 403(b) plan that is intended to satisfy the requirements of § 403(b) (including the 2007 regulations) effective as of January 1, 2009; (2) during 2009, the sponsor operates the plan in accordance with a reasonable interpretation of § 403(b), taking into account the 2007 regulations; and

(3) before the end of 2009, the sponsor makes its best efforts to retroactively correct any operational failure during the 2009 calendar year to conform to the terms of the written § 403(b) plan, with such correction to be based on the general principles of correction set forth in the Service’s Employee Plans Compliance Resolution System (EPCRS) at section 6 of Rev. Proc. 2008–50, 2008–35 I.R.B. 464.

The relief in Notice 2009–3 applies solely with respect to the 2009 calendar year, and may not be relied on with respect to the operation of a § 403(b) plan or correction of operational defects in any prior or subsequent year.

.08 The Service expects that most eligible employers will be able to adopt a § 403(b) prototype plan approved under the opinion letter program described in this revenue procedure. As indicated in Notice 2009–3 and in section 1.02 above, the Service also intends to establish a determination letter program that will enable other eligible employers to receive assur

plans (“the determination letter program”) that will allow eligible employers that maintain § 403(b) plans with features which preclude the use of a prototype document under this revenue procedure or that choose not to use a prototype document to receive assurance that the form of a plan satisfies the requirements of § 403(b).

.03 An eligible employer that adopts an approved § 403(b) prototype plan will generally be able to rely directly on the prototype plan’s opinion letter and will not need to request an individual determination letter under the determination letter program. In the case of a plan that provides for contributions that, under § 403(b)(12)(A)(i), are subject to the nondiscrimination requirements of §§ 401(a)(4) and 410(b), this reliance will be limited to contributions that satisfy certain uniform coverage and contribution standards. If such a plan does not satisfy these standards, the eligible employer will still generally be able to rely directly on the prototype § 403(b) plan’s opinion letter, except with respect to whether those contributions satisfy the requirements of §§ 401(a)(4) and 410(b). In this case, if the eligible employer wishes to obtain reliance with respect to the requirements of §§ 401(a)(4) and 410(b), the employer will have the opportunity to request a determination letter after the determination letter program is established.

.04 This revenue procedure allows an eligible employer to retroactively correct defects in the form of its written § 403(b) plan by timely adopting an approved § 403(b) prototype plan that was submitted to the Service for an opinion letter by a date that will be announced in the future (and will not be earlier than March 15, 2010), or by otherwise timely amending its plan and submitting a request for a determination letter. Future guidance will specify the date(s) for timely adoption and for timely amendment and submission.