SECTION 12. HOW TO APPLY FOR

AN OPINION LETTER

.01 The Service will accept applications for opinion letters for § 403(b) prototype plans beginning [DATE TO BE DETER- MINED] .

.02 A separate application is required for each adoption agreement that is offered for adoption by the prototype sponsor. For example, if a prototype sponsor maintains two basic plan documents and there are two adoption agreements that may be used with each basic plan document, the prototype sponsor must submit four separate applications.

.03 An application for an opinion letter for a § 403(b) prototype plan may be filed by a prototype sponsor as defined in section 7.01, by a mass submitter as defined in section 7.02 with respect to its mass submitter plan, or by a mass submitter on behalf of a word-for-word identical adopter of the mass submitter’s plan. An application filed by a prototype sponsor or by a mass submitter with respect to a mass submitter plan must be submitted on Form 8929, Application for Approval of § 403(b) Prototype Plan . An application filed by a mass submitter on behalf of a word-for-word identical adopter of the mass submitter’s plan must be filed on Form 8929–A, Application for Approval of § 403(b) Prototype Plan Mass Submit- ter Adopting Sponsor . The forms (and instructions) specify what to include with the application. These forms may be downloaded from the Internet at the following address: [TO BE ADDED WHEN FI- NALIZED] . All information on the first page of the application must be typed. The applicable user fee, determined under section 6.03 of Rev. Proc. 2009–8, 2009–1 I.R.B. 229, as if the application were for a master and prototype plan, should be included with the application. The request is to be sent to:

employer that is not an eligible employer within the meaning of § 1.403(b)–2(b)(8), the adopting eligible employer may rely on the opinion letter, except with respect to whether contributions under the plan other than elective deferrals satisfy the requirements of §§ 401(a)(4) and 410(b). In this case, the adopting eligible employer may request an individual determination letter in order to obtain reliance with respect to the requirements of §§ 401(a)(4) and 410(b). The Service intends to publish procedures for requesting such a letter in the future.

.02 An eligible employer that adopts a standardized or a nonstandardized § 403(b) prototype plan may rely upon a favorable opinion letter issued for the plan that the form of the adopting eligible employer’s plan satisfies the requirements of § 403(b) if the plan is a governmental plan as defined in § 414(d) or a nonelecting church plan. However, the issuance of a favorable opinion letter does not constitute a determination that the plan is a governmental plan as defined in § 414(d) or a nonelecting church plan, but instead is conditioned on the adopting eligible employer’s representation to that effect.

.03 An eligible employer that adopts a nonstandardized § 403(b) prototype plan may rely upon a favorable opinion letter issued for the plan that the form of the adopting eligible employer’s plan satisfies the requirements of § 403(b), except with respect to whether contributions under the plan other than elective deferrals satisfy the requirements of §§ 401(a)(4) and 410(b), if applicable. The adopting eligible employer may request an individual determination letter in order to obtain reliance with respect to the requirements of §§ 401(a)(4) and 410(b), under procedures to be published in the future.

.04 Notwithstanding the other provisions of this section, an opinion letter issued for a § 403(b) prototype plan may not be relied upon with respect to the requirements of § 415 if the adopting eligible employer or any of its related employers maintains another § 403(b) plan covering any of the same participants as the § 403(b) prototype plan, unless the other plan is also a § 403(b) prototype plan. For this purpose, the term “related employers” means all employers that are aggregated with the adopting eligible employer under § 414(b) and (c) (each as modified by § 415(h)),

(m), and (o), including § 1.414(c)–5. The adopting eligible employer may request an individual determination letter in order to obtain reliance with respect to the requirements of § 415 under procedures to be published in the future.

.05 An opinion letter for a § 403(b) prototype plan also may not be relied upon with respect to issues of an inherently factual nature, such as whether the effective availability of any benefits, rights, and features is nondiscriminatory, or with respect to whether a plan satisfies the requirements of §§ 401(a)(4) and 410(b) with respect to former employees.

.06 An eligible employer’s reliance on an opinion letter will not be adversely affected by the prototype sponsor’s correction, after the § 403(b) prototype plan has been approved, of obvious and unambiguous typographical errors in the approved plan and/or cross-references in the plan that merely correct a reference but that do not in any way change the original intended meaning of the provisions. The Service in its discretion may determine whether any changes made by the prototype sponsor to the approved § 403(b) prototype plan conform to these standards.