SECTION 6. WHAT IS

THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION LETTERS?

Scope .01 This section contains procedures that are generally applicable to all determination letter requests. Additional procedures for specific requests are contained in sections 7 through 16.

Qualified trusteed plans .02 A trust created or organized in the United States and forming part of a pension, profit-sharing, stock bonus or annuity plan of an employer for the exclusive benefit of its employees or their beneficiaries that meets the requirements of § 401(a) is a qualified trust and is exempt from federal income tax under § 501(a) unless the exemption is denied under § 502, relating to feeder organizations, or § 503, relating to prohibited transactions, if, in the latter case, the plan is one described in § 503(a)(1)(B).

Qualified nontrusteed annuity plans

Complete information required

.03 A nontrusteed annuity plan that meets the applicable requirements of § 401(a) and other additional requirements as provided under § 403(a) and § 404(a)(2) (relating to deductions of employer contributions for the purchase of retirement annuities) qualifies for the special tax treatment under § 404(a)(2), and the other sections of the Code, if the additional provisions of such other sections are also met.

.04 An applicant requesting a determination letter must file the material required by this revenue procedure with Employee Plans Determinations (EP Determinations) at the address in section 6.15. The filing of the application, when accompanied by all information and documents required by this revenue procedure, will generally serve to provide the Service with the

Sec. 6.04 January 2, 2015 202 Bulletin No. 2015–1

Complete copy of plan and trust instrument and applicable amendments required

Submission of reference list encouraged

information required to make the requested determination. However, in making the determination, the Service may require the submission of additional information. If an application is determined by the Service to be procedurally or technically deficient, the Service may decline to process the application and an applicant may be required to resubmit the entire application and pay a new user fee in order to request a determination letter. See section 6.13 for additional information. Information submitted to the Service in connection with an application for determination may be subject to public inspection to the extent provided by § 6104. The applicant must include Employee Plans Compliance Resolution System documentation for any closing agreement or compliance statement (including Appendix C of Rev. Proc. 2013–12, applicable schedules and copies of corrective amendments) issued or applied for during the current 5-year or 6-year remedial amendment cycle, if any, with the determination letter application.

.05 In addition to a copy of the plan and trust documents and other material required by the application, the determination letter application must also include a copy of all signed and dated interim and other plan amendments adopted or effective during the plan’s current remedial amendment cycle (other than such amendments adopted on behalf of the employer by the practitioner that sponsors the employer’s VS plan) even if these amendments are dated earlier than a previous determination letter issued with respect to the plan. The application must also include the completed Procedural Requirements Checklist that is set forth in Forms 5300, 5307, 5310 and 5316. If a plan did not receive a prior favorable determination letter, all plan documents and amendments for the Cumulative List applicable for the plan’s prior submission period must be submitted.

In order to facilitate the review of an application for a determination letter, an applicant is encouraged to submit a completed reference list along with the application for the plan. A reference list is a checklist that applicants may use to indicate the location in their plan document of items set forth in the 2014 Cumulative List. A sample reference list will be made available at www.irs.gov. The inclusion of a completed reference list with the determination letter application will facilitate the Service’s review of the submission, and is encouraged. Submission of a reference list is not mandatory.

In order for documents to be properly scanned, documents submitted should not be stapled or bound and the application form should be prepared using Courier 10 point font.

Section 9 of Rev. Proc. .06 Section 9 of Rev. Proc. 2015–4 is generally applicable to requests for determination 2015–4 applies letters under this revenue procedure.

Separate application for each single § 414(l) plan

.07 A separate application is required for each single plan within the meaning of § 414(l). This requirement does not pertain to applications regarding the qualified status of group trusts.

Prior letters .08 If the plan has received a favorable determination letter in the past, the application must include a copy of the latest determination letter. If a prior determination letter is not available, an explanation must be included with the application, and the employer must include a copy of the prior plan or adoption agreement, including the opinion or advisory letter, if applicable.

Plans involving mergers If the submitted plan is the result of a merger of two or more plans, the applicant must include a copy of the prior determination letter for all the plans that combined to result in the merged plan. If a prior determination letter is not available for any such plan involved in a merger, an explanation must be included with the application, and the applicant must include a copy of the prior plan document (and adoption agreement, if applicable), the opinion or advisory letter for the plan, if applicable, and all amendments necessary to verify that each plan was amended timely for the Cumulative List applicable for the plan’s prior submission period. Additionally, for each plan involved in a merger the applicant must provide all of the amendments adopted during the plan’s current remedial amendment cycle.

User fees .09 The appropriate user fee, if applicable, must be paid according to the procedures of Rev. Proc. 2015–8, this Bulletin. Form 8717, User Fee for Employee Plan Determination Letter

Sec. 6.08 Bulletin No. 2015–1 203 January 2, 2015

Interested party notification and comment

Contrary authority must be distinguished

Employer/employee relationship

Request, must accompany each determination letter request by an authorized representative. If, however, the user fee for a determination letter request is paid through www.pay.gov, submit a copy of the payment confirmation in lieu of Form 8717. If the criteria for the user fee exemption are met in accordance with Notice 2011–86, 2011–45 I.R.B. 698, the certification on Form 8717 must be signed. Stamped signatures are not acceptable.

.10 Before filing an application, the applicant requesting a determination letter must satisfy the requirements of section 3001(a) of ERISA, and § 7476(b)(2) of the Code and the regulations thereunder, which provide that an applicant requesting a determination letter on the qualified status of certain retirement plans must notify interested parties of such application. The general rules of the Service with respect to notifying interested parties of requests for determination letters relating to the qualification of plans involving §§ 401 and 403(a) are set out below in sections 17 and 18 of this revenue procedure.

.11 If the application for determination involves an issue where contrary authorities exist, failure to disclose or distinguish such contrary authorities may result in requests for additional information, which will delay action on the application.

.12 Employee Plans of the Tax Exempt and Government Entities Division of the Service does not make determinations regarding the existence of an employer-employee relationship as part of its determination on the qualification of a plan, but relies on the applicant’s representations or assumptions, stated or implicit, regarding the existence of such a relationship. Taxpayers are reminded, however, that they may file Form SS–8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, with the Service to determine the employment status of the individuals involved prior to filing an application for a determination letter on the qualified status of the plan. See section 12.04 of Rev. Proc. 2015–1.

Incomplete applications .13 This section provides procedures for processing incomplete applications

(1) Procedural Completeness . Upon receipt, an application will be reviewed to determine if it is procedurally complete. In order for an application to be procedurally complete, the application must include all of the information and documents required by this revenue procedure, including but not limited to the Form 5300 series application and the Procedural Requirements Checklist.

(2) Procedurally deficient applications . The following procedures apply to a procedurally deficient on-cycle filing of a determination letter application. To retain its status as an on-cycle filing, a procedurally deficient application must either be perfected in accordance with section 6.13(2)(a) of this revenue procedure or resubmitted in accordance with section 6.13(2)(b). See section 6.05 of this revenue procedure.

(a) If an application is procedurally deficient, the Service will send the applicant a letter

identifying the missing information. The applicant will have 30 days from the date of the letter to submit the missing information identified. If the missing information is not sent (postmarked) within 30 days of the Service’s letter, the case will be closed. Any user fee with respect to the application will not be refunded.

(b) If a procedurally deficient application is not perfected pursuant to section 6.13(2)(a)

of this revenue procedure, the applicant must resubmit the entire application, including a new user fee (if applicable), by the end of the plan sponsor’s remedial amendment cycle, unless a later date is specified in the Service’s letter.

(c) If a procedurally deficient application is not perfected pursuant to section 6.13(2)(a)

of this revenue procedure, and both the response deadline and the postmark date of a response submitted pursuant to section 6.13(2)(a) occur after the end of the plan sponsor’s remedial amendment cycle, the Service will send the applicant a final disposition letter indicating that the remedial amendment cycle will not be extended to allow the plan to be submitted for that cycle.

Sec. 6.13 January 2, 2015 204 Bulletin No. 2015–1

Effect of failure to disclose material fact

(3) Technically deficient applications . An application that is procedurally complete will proceed for a technical review. During the course of the review, the Service may request the submission of additional information.

(a) If the Service needs additional information to process the application, the applicant

will be sent an information request with a response date.

(b) If the applicant’s response to such information request is not timely or complete, the

applicant will be given a set period of time in which to respond.

(c) If a complete response is not received by the response deadline set forth in the

Service’s letter referenced in section 6.13(3)(b) of this revenue procedure, the case will be closed and any user fee submitted with respect to the application will not be refunded.

(i) If either the response deadline or the postmark date of the submitted response

occurs prior to the end of the plan sponsor’s remedial amendment cycle, the applicant will be given a set period of time to submit a new application, including a new user fee, if applicable.

(ii) If both the response deadline and the postmark date of a response submitted

pursuant to section 6.13(3)(b) occur after the end of the plan sponsor’s remedial amendment cycle, the Service will send the applicant a final disposition letter indicating that the remedial amendment cycle will not be extended to allow the plan to be submitted for that cycle.

(d) An application resubmitted with a new user fee in accordance with section 6.13(3)(c)

of this revenue procedure will be treated as a new application for purposes of this section 6.13.

.14 The Service may determine, based on the application form, the extent of review of the plan document. A failure to disclose a material fact or misrepresentation of a material fact on the application adversely affects the reliance that would otherwise be obtained through issuance by the Service of a favorable determination letter. Similarly, failure to accurately provide any of the information called for on any form required by this revenue procedure may result in no reliance.

Where to file requests .15 Requests for determination letters are to be addressed to EP Determinations at the following address:

Internal Revenue Service Attention: EP/EO Determination Letters Stop 31 P.O. Box 12192 Covington, KY 41012-0192

Requests shipped by Express Mail or a delivery service should be sent to:

Internal Revenue Service Attention: EP/EO Determination Letters Stop 31 201 West Rivercenter Blvd. Attn: Extracting Stop 31 Covington, KY 41011

Determination letter applications will not be accepted via fax.

Submission of related plans .16 If applications for two or more plans of the same employer are submitted together, each application should include a cover letter that identifies the name of the employer and the plan

Sec. 6.15 Bulletin No. 2015–1 205 January 2, 2015

numbers and employer identification numbers of all the related plans submitted together. The Service will determine whether these applications will be worked simultaneously.

Withdrawal of requests .17 The applicant’s request for a determination letter may be withdrawn by a written request at any time prior to the issuance of a final adverse determination letter. If an appeal to a proposed adverse determination letter is filed, a request for a determination letter may be withdrawn at any time prior to the forwarding of the proposed adverse action to the Chief, Appeals Office. In the case of a withdrawal, the Service will not issue a determination of any type. A failure to issue a determination letter as a result of a withdrawal will not be considered a failure of the Secretary or his delegate to make a determination within the meaning of § 7476. However, the Service may consider the information submitted in connection with the withdrawn request in a subsequent examination. Generally, the user fee will not be refunded if the application is withdrawn.

Right to status conference .18 An applicant for a determination letter has the right to a have a conference with the EP Determinations Manager concerning the status of the application if the application has been pending at least 270 days. The status conference may be by phone or in person, as mutually agreed upon. During the conference, any issues relevant to the processing of the application may be addressed, but the conference will not involve substantive discussion of technical issues. No tape, stenographic, or other verbatim recording of a status conference may be made by any party. Subsequent status conferences may also be requested if at least 90 days have passed since the last preceding status conference.

How to request status conference