SECTION 9. SCOPE OF AN OPINION

LETTER

.01 An opinion letter for a § 403(b) prototype plan constitutes a determination that the plan as adopted by a particular adopting eligible employer satisfies the requirements of § 403(b) only under the circumstances, and to the extent, described in section 10.

.02 The Service’s review of a prototype sponsor’s application for an opinion letter for a § 403(b) prototype plan, or of an adopting eligible employer’s application for a determination letter for the eligible employer’s § 403(b) prototype plan, will consider only the terms of the basic plan document and adoption agreement. The Service’s review will not consider, and an opinion or determination letter will not express an opinion with respect to, the terms of any annuity contracts or custodial accounts under the plan of any adopting eligible employer or any other documents that may be incorporated into an adopting eligible employer’s plan by reference.

.03 An opinion letter for a § 403(b) plan does not express an opinion, and may not be relied upon, with respect to whether any plan is subject to the requirements of Title I of ERISA or whether a plan satisfies any of those requirements.

.04 Opinion letters will not be issued for any of the following:

(1) TEFRA church defined benefit plans. (See § 1.403(b)–10(f)(2).)

(2) Plans that: (a) include provisions applicable only to churches or qualified church-controlled organizations as described in § 3121(w)(3), church-related organizations described in § 1.403(b)–2(b)(6), or

May 4, 2009 923 2009–18 I.R.B.

Correction Program (VCP) component of the Employee Plans Compliance Resolution System (EPCRS), the prototype sponsor must notify the eligible employer that the plan may no longer satisfy § 403(b), advise the eligible employer that adverse tax consequences to participants may ensue, and inform the eligible employer about the availability of EPCRS. See Rev. Proc. 2008–50, or any successor thereto.