SECTION 9. DETERMINATION

LETTER FILING PROCEDURES FOR M&P AND VOLUME SUBMITTER PLANS

.02 If an employer can rely on a favorable opinion or advisory letter pursuant to section 19 of Rev. Proc. 2005–16, the opinion or advisory letter shall be equivalent to a favorable determination letter. For example, the favorable opinion or advisory letter shall be treated as a favorable determination letter for purposes of section 21 of this revenue procedure, regarding the effect of a determination letter, and section 5.01(4) of Rev. Proc. 2008–50, 2008–35 I.R.B. 464, regarding the definition of “favorable letter” for purposes of the Employee Plans Compliance Resolution System.

Scope .01 This section contains procedures for requesting determination letters for adopting employers of volume submitter plans and M&P plans.

Determination letter for adoption of volume submitter plan

.02 An application for a determination letter for an employer’s adoption of an approved volume submitter plan, that is filed on Form 5307 generally need not include the plan’s EGTRRA good faith amendments that were adopted prior to the adoption of the EGTRRA-restated plan, if applicable, or any interim plan amendments, regardless of when adopted, unless the plan is a volume submitter plan that does not authorize the practitioner to amend on behalf of the adopting employer. The Service may, however request evidence of adoption of good faith and interim amendments during the course of its review of a particular plan. With respect to determination letters for adopting employers of volume submitter plans:

(1) An application for a determination letter for an employer’s adoption of an approved volume submitter plan must be sent to the address provided in section 6.17.

(2) The application for a determination letter must include the following:

(a) Form 8717, User Fee for Employee Plan Determination, Opinion, and Advisory Letter Request ;

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Determination letter for adoption of M&P plan

(b) Form 5307, Application for Determination for Adopters of Master or Prototype or Vol- ume Submitter Plans (Schedule Q is optional);

(c) Form 2848, Power of Attorney and Declaration of Representative, or other written authorization allowing the volume submitter practitioner to act as a representative of the employer with respect to the request for a determination letter;

(d) Form 8905, Certification of Intent to Adopt a Pre-approved Plan, executed before the end of the employer’s 5-year remedial amendment cycle as determined under Part III of Rev. Proc. 2007–44, if

(e) A copy of the advisory letter for the practitioner’s volume submitter specimen plan;

(f) A copy of the plan and trust instrument or, if the employer has made no changes to the specimen plan and trust other than completing options permitted under the adoption agreement, a copy of the completed adoption agreement;

(g) A written representation (signature optional) made by the volume submitter practitioner which:

(i) states whether the plan and trust instrument are word-for-word identical to the approved specimen plan;

(ii) if the plan and trust are not word-for-word identical to the approved specimen plan, explains how the plan and trust instrument differ from the approved specimen plan, describing the location, nature and effect of each deviation from the language of the approved specimen plan; and

(h) A copy of the plan’s latest favorable determination letter, if applicable;

(i) Applications filed on Form 5307 for volume submitter plans that do not authorize the practitioner to amend on behalf of the adopting employer must include the plan’s EGTRRA good faith amendments, if applicable, and any interim amendments that were adopted for qualification changes on the applicable Cumulative List used in reviewing and approving the underlying volume submitter plan; and

(j) Any other information or material that may be required by the Service.

(3) Deviations from the language of the approved specimen plan will be evaluated based on the extent and complexities of the changes. If the changes are determined not to be compatible with the volume submitter program, the Service may require the applicant to file Form 5300 and pay the higher user fee. See also, Rev. Proc. 2007–44, section 19.

(4) An employer will not be treated as having adopted a volume submitter plan if the employer has signed or otherwise adopted the plan prior to the date on the volume submitter specimen plan’s advisory letter. In this case, the determination letter application for the employer’s plan may not be filed on Form 5307 and will not be eligible for a reduced user fee. A determination letter application for a volume submitter plan must be based on the approved volume submitter specimen plan with any applicable modifications. See section 19.03 in Rev. Proc. 2005–16.

.03 Form 5307 must be filed to request a determination letter for the adoption of an M&P plan by an adopting employer. Schedule Q may be filed as an attachment to Form 5307. An application for a determination letter that is filed on Form 5307 generally need not include the plan’s EGTRRA good faith amendments, if applicable, or any interim plan amendments, regardless of when adopted. The Service may, however request evidence of adoption of good faith and interim amendments during the course of its review of a particular plan.

Required information .04 The determination letter request must include the following:

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Amended plan is treated as an individually-designed plan

Requests made prior to the issuance of opinion letter

Adopting employers of pre-approved plans

Affiliated service groups, leased employees, and partial terminations

(1) Form 8717, User Fee for Employee Plan Determination, Opinion, and Advisory Letter Request ;

(2) Form 5307, Application for Determination for Adopters of Master or Prototype or Vol- ume Submitter Plans ;

(3) Form 8905, Certification of Intent to Adopt a Pre-approved Plan, executed before the end of the employer’s 5-year remedial amendment cycle as determined under Part III of Rev. Proc. 2007–44, if applicable;

(4) An adoption agreement showing which elections the employer is making with respect to the elective provisions contained in the plan;

(5) A copy of the plan’s most recent opinion letter; and

(6) In the case of a determination letter request for an M&P plan that uses a separate trust or custodial account, a copy of the employer’s trust or custodial account document. This information is necessary in order to verify that the trustee executed the document.

.05 Except to the extent provided in section 5.02 and 19.03 of Rev. Proc. 2005–16, an employer that amends any provision of an M&P plan or its adoption agreement (other than to choose among the options offered by the sponsor if the plan permits or contemplates such options), or an employer that chooses to discontinue participation in such a plan as amended by its sponsor and does not substitute another approved plan referred to in this section is considered to have adopted an individually-designed plan. The requirements stated in this revenue procedure relating to the issuance of determination letters for individually-designed plans will then apply to such plan. Also see section 19.01 of Rev. Proc. 2007–44.

.06 An application submitted by an employer with respect to an M&P plan will be treated as an application for an individually-designed plan if it is executed prior to the time the M&P plan is approved. Also see sections 5.11 and 19.03 of Rev. Proc. 2005–16 regarding the requirement that adopting employers sign new adoption agreements when M&P plans are restated.

.07 In accordance with Part IV of Rev. Proc. 2007–44, adopting employers of M&P plans and volume submitter plans have a six-year remedial amendment cycle. The Service’s announced deadline for an adopting employer to adopt the approved M&P or volume submitter plan will be the end of the plan’s remedial amendment cycle with respect to all disqualifying provisions for which the remedial amendment period would otherwise end during the cycle. An adopting employer of a M&P plan or a volume submitter plan who must obtain a determination letter for reliance or who desires a determination letter for additional reliance must not submit such determination letter application until the Service’s announced deadline for employers to adopt a pre-approved plan and, if necessary, file a determination letter application, as described in Part IV of Rev. Proc. 2007–44. See section 17 of Rev. Proc. 2007–44 for the eligibility requirements that must be satisfied in order to be considered an adopting employer of a M&P plan or a volume submitter plan and thus eligible for the six-year remedial amendment cycle. The Service began accepting applications for individual determination letters for EGTRRA-approved M&P and volume submitter defined benefit plans starting May 1, 2010. An adopting employer whose plan is eligible for the six-year remedial amendment cycle under section 17 of Rev. Proc. 2007–44 and that adopts an EGTRRA-approved M&P or volume submitter defined benefit plan by April 30, 2012, will have adopted the plan within the employer’s six-year remedial amendment cycle.

.08 An application for a determination letter on a pre-approved plan that is required to file Form 5300 only because the plan requests a determination regarding affiliated service group status, leased employees or partial terminations, will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan.

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