SECTION 9. DETERMINATION

LETTER FILING PROCEDURES FOR VOLUME SUBMITTER PLANS

(1) An adopting employer of an M&P plan (whether standardized or nonstandardized) may not apply for a determination letter for the plan on Form 5307.

(2) An adopting employer of a VS plan may not apply for a determination letter for the plan on Form 5307 unless the employer has modified the terms of the approved plan and the modifications are not so extensive as to cause the plan to be treated as an individually designed plan.

(3) An application for a determination letter for an M&P or VS plan that is filed on Form 5300 is treated as an application for an individually designed plan, requiring the plan to be restated to take into account the Cumulative List in effect when the application is filed, unless the employer is filing the application solely for one or more of the following reasons:

(a) The employer has modified the terms of the M&P plan by adding overriding language necessary to coordinate the application of the limitations of section 415 or the requirements of section 416 because the employer maintains multiple plans.

(b) The plan is a pension plan and the normal retirement age under the plan is lower than 62. In this case, a determination letter is required for reliance that the plan’s normal retirement age satisfies the requirements of section 1.401(a)–1(b)(2) of the regulations.

(c) The employer seeks a determination as to whether there has been a partial termination of the plan, the employer is a member of an affiliated service group under section 414(m), or the employer is a recipient of services of leased employees under section 414(n).

(d) The plan is a multiple employer plan.

(e) The employer is required to obtain a determination letter to comply with published procedures of the Service (for example, in conjunction with a request for a minimum funding waiver).

In the situations described in subparagraphs (a) through (e), the plan does not have to be restated for the Cumulative List in effect when the application is filed and will be reviewed on the basis of the Cumulative List that was considered in issuing the opinion or advisory letter for the plan. An employer that submits an application for a determination letter for an M&P or VS plan on Form 5300 for one or more of the reasons described in subparagraphs (a) through (e) should identify the reason in a cover letter to the application and include a copy of the opinion or advisory letter.

Section 9 of this revenue procedure describes the procedures for requesting determination letters on VS plans where the employer has made limited modifications to the language of the approved specimen plan.

.03 If an employer can rely on a favorable opinion or advisory letter pursuant to Section 19 of Rev. Proc. 2011–49, as modified by this revenue procedure, 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, as updated, 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 VS plans where the employer has made limited modifications to the approved specimen plan.

Sec. 8.02 January 2, 2013 210 2013–1 I.R.B.

Determination letter for adoption of volume submitter plan

.02 An application filed on Form 5307, must include any interim plan amendments unless the VS plan authorizes the practitioner to amend on behalf of the adopting employer. The Service may, however, request evidence of adoption of interim amendments during the course of its review of a particular plan. With respect to determination letters for adopting employers of VS plans:

(1) An application for a determination letter for an employer’s adoption of an approved VS plan where the employer has made limited modifications to the language of the approved specimen plan must be sent to the address provided in section 6.15. For VS plans involved in plan mergers, see section 6.08 of this procedure.

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

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

(b) Form 5307, Application for Determination for Adopters of Modified Volume Submitter (VS) Plans ;

(c) 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;

(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 applicable;

(e) A copy of the most recent advisory letter for the practitioner’s VS specimen plan;

(f) A complete copy of the plan and trust instrument, if applicable, and a copy of the completed adoption agreement;

(g) A written representation (signature optional) made by the VS practitioner which 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;

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

(i) Applications filed on Form 5307 for VS plans where the employer has made modifications to the language of the approved specimen plan that do not authorize the practitioner to amend on behalf of the adopting employer must include any interim amendments that were adopted for qualification changes on the applicable Cumulative List used in reviewing and approving the underlying VS 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 VS 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 VS plan if the employer has signed or otherwise adopted the plan prior to the date on the VS 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 VS plan must be based on the approved VS specimen plan with any applicable modifications. See section 19.03 in Rev. Proc. 2011–49.

Sec. 9.02 2013–1 I.R.B. 211 January 2, 2013

Timing of determination letter applications for adopting employers of pre-approved plans