SECTION 7. OPINION LETTER

APPLICATIONS - INSTRUCTIONS TO SPONSORS

.01 The IRS Issues Opinion Letters -The IRS will, upon the request of a sponsor, issue an opinion letter as to the acceptability of the form of the sponsor’s M&P plan and any related trust or custodial account documents under §§ 401(a), 403(a), 501(a), and 4975(e)(7). .02 Procedure for Requesting Opinion Letters - A request for an opinion letter relating to a M&P plan must be submitted on the current version of Form 4461, Ap- plication for Approval of Master or Proto- type or Volume Submitter Defined Contri- bution Plans, Form 4461-A, Application for Approval of Master or Prototype or Volume Submitter Defined Benefit Plan, or Form 4461-B, Application for Approval of Master or Prototype or Volume Submitter Plans (Mass Submitter Adopting Sponsor or Prac- titioner), as appropriate. Additionally, the M&P request must be accompanied by the required user fee submitted with Form 8717-A, User Fee for Employee Plan Opin- ion or Advisory Letter Request, a signed certification that all necessary amendments required by the IRS to retain the qualified status of the sponsor’s plan have been made and communicated to all adopting employers, and Attachment I to Form 4461, or Attachment I-A to Form 4461-A, as applicable. These forms may be downloaded from the Internet at the following address: http://www.irs.gov/

Retirement-Plans/Preapproved-Plan- Submission-Procedures. All information on the first page of the application must be typed. The request must be sent to the address in section 20 of this revenue procedure.

.03 Expediting Review of Substantially Identical Plans - The IRS reserves the right to review applications in any order that will expedite the processing of opinion letter applications, subject to section 21.03. To expedite the review of substantially identical plans that are not mass submitter plans, the IRS encourages plan drafters and sponsors to include with each opinion letter application, if appropriate, a cover letter setting forth the following information:

(1) The name and file folder number (if available) of the plan that, for review purposes, the plan drafter designates as the “lead plan” (including the name and EIN of the sponsor);

(2) A list of all plans written by the plan drafter that are substantially identical to the lead plan (including the information described in paragraph (1) above);

(3) A description of each location in the plan for which the application is being submitted that is not word-forword identical to the language of the lead plan, including an explanation of the purpose and effect of each such difference; and

(4) A certification, made under penalty of perjury by the plan drafter, that the information described in paragraph (3) above is true and complete. If the sponsor or plan drafter is aware that a lead plan or any substantially identical plan has been assigned for review to a specialist, the cover letter should also indicate the name of the specialist, if possible. To the extent feasible, lead plans and substantially identical plans should be submitted together. The IRS will regard the information and certification described in paragraph (3) above and this paragraph (4) as a material representation for purposes of issuing an opinion letter.

.04 Separate Applications Required for Different Categories of M&P Plans/Use of Same Basic Plan Document by Multiple Plans - A M&P adoption agreement may not contain any combination of profit-sharing, money purchase (other than target benefit), ESOP, target benefit,

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or defined benefit plan features. Thus for example, a single adoption agreement may not contain features of both a money purchase plan and a target benefit plan. In addition, one basic plan document may not be used for both defined benefit and defined contribution plans. Provided that the provisions of the basic plan document are identical for all plans using that document (that is, the basic plan document contains no elective or optional features), separate defined contribution plans may use the same basic plan document and separate defined benefit plans may use the same basic plan document. Accordingly, separate defined contribution adoption agreements may be associated with the same defined contribution basic plan document. For example, a sponsor may submit one defined contribution basic plan document with adoption agreements for a money purchase plan, a target benefit plan, and a profit-sharing plan. The adoption agreement submitted for a defined benefit plan may contain any combination of plan provisions providing integrated (that is, that provide for permitted disparity) and non-integrated traditional formulas, and a cash balance formula. A separate adoption agreement and completed application form must be submitted with respect to each defined benefit plan and each defined contribution plan. In the case of a simultaneous submission of plans using the same basic plan document, only one copy of the basic plan document should be provided. If the requests are not simultaneous, the sponsor must submit a copy of the basic plan document with each submission and include a cover letter identifying the original submission. The number of such basic plan document must remain the same as in the prior submission.

.05 Sample Language - A Listing of Required Modifications (LRM) containing sample language to be used in drafting M&P plans is available from the IRS. Such language is not automatically required in M&P plans but should be used as a guide in drafting such plans. To expedite the review of their plans, sponsors are encouraged to use LRM language and to identify the location of such language in their plan documents. LRMs may be downloaded from the Internet at the fol

lowing address: http://www.irs.gov/ Retirement-Plans/Listing-of-Required- Modifications-LRMs

.06 Material Furnished to Adopting Employers - A sponsor must furnish each adopting employer with a copy of the approved plan, copies of any subsequent amendments, and the most recently issued opinion letter from the IRS.

.07 Timing of Issuance of Opinion Letters - The IRS intends to issue opinion letters to M&P mass submitters and sponsors (as well as advisory letters to VS mass submitters and VS practitioners) at approximately the same time within the applicable six-year cycle. In the interim, the IRS will send a notification to the applicable M&P or VS mass submitter, sponsor, or VS practitioner, if the IRS determines that the plan appears to be in full compliance with the applicable qualification requirements, based on the submissions and the completed review. Notwithstanding the preceding sentence, this notification only provides assurance that the IRS believes the plan appears to meet the applicable qualification requirements under review as of the date of the notification. This notification is for the convenience of the applicable sponsor, VS practitioner, or mass submitter, but does not constitute an official opinion or advisory letter. Until issuance of the official opinion or advisory letter, no reliance exists. In addition, the IRS reserves the right to require changes after the notification is sent, in its sole discretion.