SECTION 3. ON WHAT ISSUES

MAY TAXPAYERS REQUEST WRITTEN GUIDANCE UNDER THIS PROCEDURE?

Types of requests .01 Determination letters may be requested on completed and proposed transactions as set forth in the table below:

January 4, 2010 198 2010–1 I.R.B.

Areas in which determination letters will not be issued

.02 Determination letters issued in accordance with this revenue procedure do not include determinations on the following issues within the jurisdiction of the Commissioner, TE/GE:

(1) Issues involving §§ 72, 79, 105, 125, 127, 129, 402, 403 (other than 403(a)), 404, 409(l), 409(m), 412, 457, 511 through 515, and 4975 (other than 4975(e)(7)), unless these determination letters are authorized under section 7 of Rev. Proc. 2010–4, page 122, this Bulletin.

(2) Plans or plan amendments for which automatic approval is granted pursuant to section 19.01 of Rev. Proc. 2005–16.

(3) Plan amendments described below (these amendments will, to the extent provided, be deemed not to alter the qualified status of a plan under § 401(a)).

(a) An amendment solely to permit a trust forming part of a plan to participate in a pooled fund arrangement described in Rev. Rul. 81–100, 1981–1 C.B. 326, as clarified and modified by Rev. Rul. 2004–67, 2004–2 C.B. 28;

(b) An amendment that merely adjusts the maximum limitations under § 415 to reflect annual cost-of-living increases under § 415(d), other than an amendment that adds an automatic cost-of-living adjustment provision to the plan; and

(c) An amendment solely to include language pursuant to § 403(c)(2) of Title I of the Employee Retirement Income Security Act of 1974 (ERISA) concerning the reversion of employer contributions made as a result of mistake of fact.

(4) This section applies to determination letter requests with respect to plans that combine an ESOP (as defined in § 4975(e)(7) of the Code) with retiree medical benefit features described in § 401(h) (HSOPs).

(a) In general, determination letters will not be issued with respect to plans that combine an ESOP with an HSOP with respect to:

(i) whether the requirements of § 4975(e)(7) are satisfied;

(ii) whether the requirements of § 401(h) are satisfied; or

(iii) whether the combination of an ESOP with an HSOP in a plan adversely affects its qualification under § 401(a).

(b) A plan is considered to combine an ESOP with an HSOP if it contains ESOP provisions and § 401(h) provisions.

(c) However, an arrangement will not be considered covered by section 3.02(4) of this revenue procedure if, under the provisions of the plan, the following conditions are satisfied:

(i) No individual accounts are maintained in the § 401(h) account (except as required by § 401(h)(6));

(ii) No employer securities are held in the § 401(h) account;

(iii) The § 401(h) account does not contain the proceeds (directly or otherwise) of an exempt loan as defined in § 54.4975–7(b)(1)(iii) of the Pension Excise Tax Regulations; and

2010–1 I.R.B. 199 January 4, 2010

(iv) The amount of actual contributions to provide § 401(h) benefits (when added to actual contributions for life insurance protection under the plan) does not exceed 25 percent of the sum of: (1) the amount of cash contributions actually allocated to participants’ accounts in the plan and (2) the amount of cash contributions used to repay principal with respect to the exempt loan, both determined on an aggregate basis since the inception of the § 401(h) arrangement.

EGTRRA .03 On February 1, 2010, the Service will begin to accept applications for determination letters for some individually designed plans (depending on their cycle) and § 414(d) governmental plans (for which an election has been made by the plan sponsor to treat Cycle E as the initial EGTRRA remedial amendment cycle for the plan) that take into account the qualification requirements of the Code as amended by EGTRRA, and other items identified on the 2009 Cumulative List in Notice 2009–98. This opening of the determination letter program for the initial remedial amendment cycle ( i.e., EGTRRA remedial amendment period) is for individually designed plans that fall within Cycle E and § 414(d) governmental plans for which an election has been made by the plan sponsor to treat Cycle E as the initial EGTRRA remedial amendment cycle for the plan, and the submission period for Cycle E plans ends on January 31, 2011. The cycles commence in different years for different plans within a staggered five-year period, so not all individually designed plans will have the same cycle or submission period. Further, the submission periods for pre-approved defined contribution and defined benefit plans are different than those that apply to individually designed plans. See Rev. Proc. 2005–16 and Rev. Proc. 2007–44 for details.