SECTION 6. STANDARDIZED

PLANS AND NONSTANDARDIZED PLANS

.01 Each § 403(b) prototype plan is either a standardized plan or a nonstandardized plan. A § 403(b) prototype plan is a standardized plan if:

(1) the only contributions which an adopting eligible employer may elect to provide under the plan are elective deferrals; or

(2) the form of the plan satisfies the requirements in section 6.02 with respect to any contributions under the plan other than elective deferrals, regardless of the adopting eligible employer’s elections in the adoption agreement or the terms of any investment arrangements under the plan or

any documents incorporated by reference in the plan.

.02 The form of a § 403(b) prototype plan satisfies the requirements in this section 6.02 with respect to any contributions under the plan other than elective deferrals if:

(1) The plan by its terms benefits all employees except those that may be excluded under § 1.410(b)–6. For this purpose, employee means an employee, within the meaning of § 1.403(b)–2(b)(9), of the adopting eligible employer and any eligible employer within the meaning of § 1.403(b)–2(b)(8) in the adopting eligible employer’s controlled group. The controlled group consists of the adopting eligible employer and each other employer that is aggregated with the adopting eligible employer under § 414(b), (c), (m) or (o), including § 1.414(c)–5. Thus, if there is more than one eligible employer in the controlled group, the plan must benefit all the employees of all the eligible employers in the controlled group except those employees that may be excluded under § 1.410(b)–6. (A plan does not fail to satisfy this requirement with respect to contributions other than elective deferrals merely because the plan provides, either as the result of an elective provision or by default in the absence of an election to the contrary, that individuals who become employees as the result of a transaction described in § 410(b)(6)(C), relating to certain employer acquisitions and dispositions, are excluded from eligibility to participate in the plan during the period beginning on the date of the transaction and ending on a date that is not later than the earlier of the last day of the first plan year beginning after the date of the transaction or the date of a significant change in the plan or in the coverage of the plan.)

(2) All benefits, rights, and features under the plan (other than those, if any, that have been prospectively eliminated) are currently available to all employees benefiting under the plan. (For information regarding benefits, rights, and features, see § 1.401(a)(4)–4.) Thus, for example, all employees benefiting under the plan must be able to choose among all the investment arrangements available under the plan.

(3) If the plan provides for employer nonelective contributions (other than matching contributions), the plan must satisfy one of the design-based safe har

2009–18 I.R.B. 922 May 4, 2009

ministers described in § 414(e)(5)(A), such as the provisions of § 1.403(b)–9, relating to retirement income accounts and special limitations under § 415(c)(7); or

(b) fail to satisfy requirements that apply to organizations other than churches and qualified church-controlled organizations as described in § 3121(w)(3), such as universal availability for elective deferrals or the limitation of § 401(a)(17).

(3) Plans grandfathered under Rev. Rul. 82–102, 1982–1 C.B. 62. (4) Plans that include blanks or fill-in provisions for the eligible employer to complete unless the provisions have parameters that preclude the eligible employer from completing the provisions in a manner that could cause the plan to fail to satisfy § 403(b).

(5) Plans that incorporate by reference the limitations of § 415 or the ACP test of § 401(m)(2).

Paragraph (2) of this section 9.04 does not preclude the adoption of a § 403(b) prototype plan by an exempt organization under § 501(c)(3) that is one of the entities described in paragraph (2). The Service may, in its discretion, decline to issue opinion letters for other types of plans not described in this section 9.04. For example, in the case of a plan that provides for nonelective contributions and is neither a governmental plan as defined in § 414(d) nor a nonelecting church plan, the Service may, in its discretion, decline to issue an opinion letter where the plan fails to satisfy a Code provision that is parallel to a provision in Part 2 of Subtitle B of Title I of ERISA (such as §§ 410 and 411 of the Internal Revenue Code).