SECTION 10. MULTIPLE

EMPLOYER PLANS

(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 and, if applicable, 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 limited 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 will 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.

.03 In accordance with Part IV of Rev. Proc. 2007–44, adopting employers of M&P and VS plans have a six-year remedial amendment cycle. The deadline for an adopting employer to adopt the approved M&P or VS plan closes with the twoyear window at the end of the plan’s remedial amendment cycle. An adopting employer of a modified VS plan who desires to obtain a determination letter for reliance must submit within the two-year window. Applications may only be submitted during the two-year window. Applications submitted outside of the two-year window will be returned.

Scope .01 This section contains procedures for applications filed with respect to plans described in § 413(c). A plan is not described in § 413(c) if all the employers maintaining the plan are members of the same controlled group or affiliated service group under § 414(b), (c) or (m).

Sec. 10.01 January 2, 2014 214 Bulletin No. 2014–1

Options to file for the plan only or for both the plan and employers maintaining the plan

.02 A determination letter applicant for a multiple employer plan can request either (1) a letter for the plan in the name of the controlling member or (2) a letter for the plan in the name of the controlling member and a letter for each employer maintaining the plan with respect to whom a separate Form 5300 is filed.

(1) An applicant requesting a letter for the plan submits one Form 5300 application for the plan in the name of the controlling member, either including or omitting the designbased safe harbor questions. The user fee for a single employer plan will apply. An employer maintaining a multiple employer plan can rely on a favorable determination letter issued for the plan except with respect to the requirements of §§ 401(a)(4), 401(a)(26), 401(l), 410(b) and 414(s), and, if the employer maintains or has ever maintained another plan, §§ 415 and 416.

(2) An applicant requesting a letter for the plan and for an employer maintaining the plan must submit the filing required in (1) above as well as a separate Form 5300 application for each employer requesting a separate letter. The user fee for the application will be determined under the user fee schedules for multiple employer plans in section 6.05 of Rev. Proc. 2014–8.

Where to file .03 The complete application, including all Forms 5300 for employers maintaining the plan who request separate letters must be filed as one submission with EP Determinations. The application is to be sent to the address in section 6.15.

Determination letter sent to each employer who files Form 5300

.04 The Service will mail a determination letter to each employer maintaining the plan for whom a separate Form 5300 has been filed.

Addition of employers .05 An employer may continue to rely on a favorable determination letter after another employer commences participation in the plan, regardless of whether the first employer’s reliance is based on its own letter or the letter issued for the plan and regardless of whether an application for a determination letter for the new employer is filed. An application for a determination letter that takes into account the addition of such other employer should include a completed Form 5300 for the plan in the name of the controlling member on the Form 5300 filed pursuant to section 10.02 above, and a supplemental Form 5300 for each new employer who desires a separate determination letter. The Service will send the determination letter only to the applicant and the new employers. However, a new employer that joins a multiple employer plan after the existing multiple employer plan was timely submitted in Cycle B (the applicable cycle as described in section 10 of Rev. Proc. 2007–44), will be subject to the rules under Rev. Proc. 2007–44, including the off-cycle filing rules under section 14 of that revenue procedure.

Pre-approved multiple employer plans

.06 A pre-approved plan that is submitted on a Form 5300 because it is a multiple employer plan will be reviewed on the basis of the Cumulative List that was used to review the underlying plan.