SECTION 7. WHEN

DETERMINATION LETTERS ARE ISSUED

Requesting Determination Letters .01 This section 7 contains the procedures for requesting determination letters for individually-designed defined contribution plans, including employee stock ownership plans, and defined benefit plans, in the following circumstances:

(1) Initial qualification.

(2) Amendment and restatement subsequent to initial qualification.

(3) Plan termination.

Forms .02 A determination letter request for the items listed in section 7.01 is made by filing the appropriate form according to the instructions to the form and any prevailing revenue procedures, notices, and announcements.

(1) Form 5300, Application for Determination for Employee Benefit Plan, must be filed to request a determination letter for individually designed plans, including collectively bargained plans.

(2) Form 5309, Application for Determination of Employee Stock Ownership Plan, must be filed as an attachment with a Form 5300, in order to request a determination whether the plan is an ESOP under § 409 or § 4975(e)(7).

(3) Form 5310, Application for Determination for Terminating Plan (Also see section 12 of this revenue procedure for additional requirements pertaining to applications for determination upon plan termination.)

(4) 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.

(5) 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.

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

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

Timing .03 All determination letter submissions must be submitted timely under the procedures set forth in Rev. Proc. 2007–44. The timing of the submission period for any particular individually designed plan within staggered remedial amendment cycles will depend on the plan’s particular cycle. The second submission period for Cycle B individually designed plans will begin February 1, 2012 and will end on January 31, 2013. Generally, an off-cycle application will not be reviewed until all on-cycle plans have been reviewed and processed. Section 14.02, (1)–(3) of Rev. Proc. 2007–44 lists the types of applications that may be submitted off-cycle and given the same priority as on cycle applications.

Applicants are reminded that an off-cycle application will not be converted to an on-cycle application once the on-cycle submission period begins if the off-cycle application has not been processed. Generally, if an off-cycle application is not reviewed before the beginning of the on-cycle period, the application will be returned with the user fee.

Sec. 7 January 3, 2012 208 2012–1 I.R.B.

Application must include copy of plan and amendments

.04 Copies of all interim and other plan amendments adopted since the date the most recent determination letter application was submitted, must be included along with a copy of the restated plan and trust instrument. If the plan did not receive a favorable determination letter with respect to its prior remedial amendment cycle, all amendments for the Cumulative List applicable for the plan’s prior submission period must also be submitted.

In general, except when prior law verification is required, a determination letter may not be relied upon for any period preceding the beginning of the remedial amendment cycle for which the letter is issued. Thus, for example, if an application for a determination letter includes a plan amendment that was effective before the beginning of the plan’s current remedial amendment cycle, the determination letter may not be relied upon with respect to the effect of the amendment for the period preceding the beginning of the cycle.

Restatements required .05 Individually designed plans must be restated when they are submitted for determination letter applications. For this purpose, submission of a working copy of the plan in a restated format will suffice. Where a working copy is submitted with executed amendments integrated into the working copy, all such amendments must also be separately submitted. The Service considers a working copy as a document that incorporates all previously executed amendments into one restated document. The intended purpose of a working copy in a restated format is only for ease of review and plan administration and it is not a document that is intended to be adopted. The Service reserves the right to make a determination as to whether the working copy is in a restated format that will facilitate the review of the plan.

Controlled group elections pursuant to Revenue Procedure 2007–44.

.06 If, pursuant to Rev. Proc. 2007–44, an election has been made for related entities (as described under section 10 of that revenue procedure) to be on the same cycle, each application should include a cover letter that identifies the name of each member of the controlled group and/or employer within the affiliated service group, and the plan numbers and employer identification numbers of all the related plans submitted together. When a controlled group election has been made for multiple plans to be on the same cycle, the Service will determine whether these applications will be worked simultaneously.

§ 414(x) combined plans .07 The Service will consider § 414(x) in issuing determination letters for individually designed plans that consist of a defined benefit plan and a qualified cash or deferred arrangement. A § 414(x) combined plan sponsor must submit two Form 5300s and two applicable user fees.