SECTION 7. OPINION LETTER

APPLICATIONS — INSTRUCTIONS TO SPONSORS

.01 Employee Plans Rulings and Agreements Issues Opinion Letters — Employee Plans Rulings and Agreements will, upon the request of a sponsor, issue an opinion letter as to the acceptability of the form of the sponsor’s M&P plan and any related trust or custodial account documents under §§ 401(a), 403(a), and 501(a).

.02 Procedure for Requesting Opinion Letters - A request for an opinion letter relating to an M&P plan must be submitted on the current version of Form 4461, Application for Approval of Master or Prototype or Volume Submitter De- fined Contribution Plans, Form 4461-A, Application for Approval of Master or Prototype or Volume Submitter Defined Benefit Plans, or Form 4461-B, Applica- tion for Approval of Master or Prototype or Volume Submitter Plans Mass Submit- ter Adopting Sponsor or Practitioner, as appropriate. The Service intends to revise Forms 4461, 4461-A and 4461-B. Until the forms have been revised, a request for an opinion letter should be accompanied by the appropriate form with the following items, if applicable, completed:

(1) Form 4461 - Complete Part 1, items 1–9, and Attachment 1 which can be accessed at http://www.irs.gov/pub/irs- tege/form4461_attachment.pdf .

(2) Form 4461-B - Complete in its entirety.

(3) Form 4461-A (relates to DB plans)

• Complete Part 1, and an attachment that the Service will provide at a future date.

These forms may be downloaded from the Internet at the following address: http://www.irs.gov . All information on the first page of the application must be typed. The request must be sent to the address in section 20 of this revenue procedure. The M&P request must be accompanied by the required user fee submitted with Form 8717, User Fee for Employee Plan Deter- mination, Opinion, and Advisory Letter Request, and a signed certification that all necessary amendments required by the Service to retain the qualified status of the M&P sponsor’s plan have been made and communicated to all adopting employers. ⁴

See http://www.irs.gov/pub/irs- tege/cert_interim_amendments.pdf for certification .

.03 Expediting Review of Substantially Identical Plans — The Service reserves the right to review applications in any order that will expedite the processing of opinion letter applications, subject to section 21.03. To expedite the review of substantially identical plans that are not mass submitter plans, the Service encourages plan drafters and sponsors to include with each opinion letter application, where it is appropriate, a cover letter setting forth the following information:

(1) The name and file folder number (if available) of the plan that, for review purposes, the plan drafter designates as the “lead plan” (including the name and EIN of the sponsor);

(2) A list of all plans written by the plan drafter that are substantially identical to the lead plan (including the information described in (1) above);

(3) A description of each place where the plan for which the application is being submitted is not word-for-word identical to the language of the lead plan, including an explanation of the purpose and effect of each such difference; and

(4) A certification, made under penalty of perjury by the plan drafter, that the information described in (3) above is true and complete.

If the sponsor or plan drafter is aware that a lead plan or any substantially identical plan has been assigned for review to a specialist, the cover letter should also indicate the name of the specialist, if possible. To the extent feasible, lead plans and substantially identical plans should be submitted together. The Service will regard the information and certification described in (3) and (4) above as a material representation for purposes of issuing an opinion letter.

.04 Separate Applications Required for Different Categories of M&P Plans / Use of Same Basic Plan Document by Multiple Plans - An M&P plan shall not contain any combination of profit-sharing, money purchase (other than target benefit), target benefit, integrated ( i.e., provide for permitted disparity) defined benefit, or nonintegrated defined benefit plan features. How

ever, separate defined contribution plans may have the same basic plan document and separate defined benefit plans may have the same basic plan document, but the provisions of the basic plan document must be identical for all plans using that document (that is, no elective or optional features). For example, a sponsor may submit four plans with respect to a given defined benefit basic plan document: integrated standardized and nonstandardized plans; and nonintegrated standardized and nonstandardized plans. A sponsor may also use one defined contribution basic plan document for a money purchase plan, a target benefit plan, and a profit-sharing plan. One basic plan document may not be used with respect to both defined benefit and defined contribution plans. A separate adoption agreement and completed application form must be submitted with respect to each defined benefit plan and each defined contribution plan. In the case of a simultaneous submission of plans using the same basic plan document, only one copy of the basic plan document should be provided. If the requests are not simultaneous, the sponsor must submit a copy of the basic plan document with each submission and include a cover letter identifying the original submission. The number of such basic plan document must remain the same as in the prior submission.

.05 Sample Language - A Listing of Required Modifications (LRM) containing sample language to be used in drafting M&P plans is available from Employee Plans Rulings and Agreements. Such language is not automatically required in M&P plans but should be used as a guide in drafting such plans. To expedite the review of their plans, sponsors are encouraged to use LRM language and to identify where such language is being used in their plan documents. LRMs may be downloaded from the Internet at the following address: http://www.irs.gov/re- tirement/article/0,,id=97182,00.html .

.06 Material Furnished to Adopting Employers - A sponsor must furnish each adopting employer with a copy of the approved plan, copies of any subsequent amendments, and the most recently issued opinion letter from the Service.

4 Form 8717, User Fee for Employee Plan Determination, Opinion and Advisory Letter Request, has not been updated to reflect new user fees. Until the form is updated, the current Form 8717 (rev. May 2009) should continue to be used. However, submissions must include the correct user fees as noted in Rev. Proc. 2011–8, 2011–1 I.R.B. 237, User fees for employee plans and exempt organizations, as modified by Announcement 2011–8, 2011–5 I.R.B. 446.

2011–44 I.R.B. 615 October 31, 2011

ually designed plan unless the employer adopts another pre-approved plan. See Rev. Proc. 2007–44.

.02 Service Retains Information Even though a request is withdrawn, EP Rulings and Agreements will retain all correspondence and documents associated with that request and will not return them to the sponsor. EP Rulings and Agreements may furnish its views concerning the qualified status of the plan to EP Examinations, which has audit jurisdiction over the returns of any employers that have adopted the plan.