SECTION 16. RETROACTIVE

REMEDIAL AMENDMENT

.01 Effective January 1, 2009, a contract does not satisfy the requirements of § 403(b) unless the contract is maintained pursuant to a written plan which, in both form and operation, satisfies the requirements of the 2007 regulations. The transition relief in Notice 2009–3 sets forth conditions under which a § 403(b) plan will not be treated as failing to satisfy the requirements of § 403(b) and the 2007 regulations during the 2009 calendar year. The relief in Notice 2009–3 applies solely with respect to the 2009 calendar year.

.02 This section 16 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 or by otherwise timely amending its plan and submitting a request for a determination letter. Under this remedial amendment provision, an eligible employer must amend its plan to the extent necessary to correct any form defects retroactive to the first day of the plan’s remedial amendment period. For

this purpose, “the first day of the plan’s remedial amendment period” means the later of January 1, 2010, or the effective date of the plan.

.03 The form of a plan will be treated as satisfying the requirements of the 2007 regulations as of the first day of the plan’s remedial amendment period if, on or before such day, the eligible employer adopts a written plan that is intended to satisfy the requirements of § 403(b) and the 2007 regulations and the conditions in paragraphs (1) or (2) of this section 16.02 are satisfied:

(1) The eligible employer amends the plan to the extent necessary to correct any form defects retroactive to the first day of the plan’s remedial amendment period by timely adopting an approved § 403(b) prototype plan. (An eligible employer that timely adopts an approved § 403(b) prototype plan is not required, but may nevertheless choose, to amend its plan retroactive to January 1, 2009. However, for purposes of Notice 2009–3 and whether the Service will treat the eligible employer’s § 403(b) plan as satisfying the requirements of § 403(b) and the 2007 regulations during the 2009 calendar year, only the plan that was adopted and in effect on December 31, 2009, will be taken into account.) For this purpose, an approved § 403(b) prototype plan means a plan for which a favorable opinion letter is issued pursuant to a timely filed application under this revenue procedure. An application for an opinion letter under this revenue procedure is timely filed if (a) the application is filed with the Service by a date to be announced in the future (which will not be earlier than March 15, 2010), or (b) if the plan is a word-for-word identical adopter of a mass submitter plan, the opinion letter application for the mass submitter plan is filed with the Service by a date to be announced in the future (which will not be earlier than March 15, 2010), irrespective of when the opinion letter application for the identical adopter plan is filed. The Service will announce, in subsequent guidance, the date by which an approved § 403(b) prototype plan must be adopted to be considered timely adopted for purposes of this section. The Service expects that eligible employers will have a period in excess of one year from the date of the announcement in which to timely adopt an approved § 403(b) prototype plan.

2009–18 I.R.B. 926 May 4, 2009