SECTION 7. WHEN

DETERMINATION LETTERS ARE ISSUED

Requesting Determination Letters .01 This section 7 contains the procedures for requesting determination letters for individually designed 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 and M&P plans that have made modifications.

(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 8717, User Fee for Employee Plan Determination Letter Request .

(6) Form 2848, Power of Attorney and Declaration of Representative .

(7) Form 8821, Tax Information Authorization .

Sec. 6.17 January 2, 2013 208 2013–1 I.R.B.

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 C individually designed plans will begin February 1, 2013 and will end on January 31, 2014. 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.

Application must include copy of plan and amendments

.04 The plan, all interim and other plan amendments adopted or effective during the plan’s current remedial amendment cycle must be included in the application package along with a copy of the restated plan and trust instrument. If the plan did not receive a favorable determination letter, all plan documents and amendments for the cumulative list applicable for the plan’s prior submission period must be submitted. If the plan relied upon an opinion or advisory letter with respect to its prior remedial amendment cycle, the plan, adoption agreements and all applicable amendments for the plan’s prior submission period must also be submitted.

In general, 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.

The Service has the discretion to request copies of any amendments during its review of a plan.

Restatements required .05 Individually designed plans must be restated when they are submitted for determination letter applications.

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 must 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 Forms 5300 and two applicable user fees.