SECTION 8. APPROVED

PLANS - PLAN AMENDMENTS

reasonably representative of the typical retirement age for the employer’s industry, as required by § 1.401(a)–1(b)(2).

(6) The Trust or Custodial Account Document may not contain a provision that states that the provisions of the trust override provisions of the plan. An Adopting Employer may not rely on an Opinion Letter to the extent that provisions of a trust or custodial account that are a separate portion of the plan override or conflict with the provisions of the plan document.

.04 Reliance Equivalent to Determination Letter - If an employer may rely on an Opinion Letter pursuant to this section, the Opinion Letter will be equivalent to a determination letter. For example, the Opinion Letter is treated as a determination letter for purposes of section 23 of Rev. Proc. 2017–4 (as updated annually), regarding the effect of a determination letter. As provided in this section, the extent of the employer’s reliance may be limited.

.05 If an Adopting Employer may not rely on a plan’s Opinion Letter, the employer, if eligible as provided in section 12 of Rev. Proc. 2017–4 (as updated annually), may submit an application for a determination letter to obtain reliance. In addition, if an employer adds language to a Pre-approved Plan to satisfy the requirements of §§ 415 and 416 given the required aggregation of plans, to obtain reliance with regard to §§ 415 and 416, the employer must submit an application for a determination letter. In this case, section 12.01(5)(a) of Rev. Proc. 2017–4 provides that such submission must be made on Form 5300, Application for Determination for Employee Benefit Plan . However, pursuant to this revenue procedure, a determination letter application to obtain reliance for §§ 415 and 416 may be made on Form 5307, Application for Determination for Adopters of Modified Volume Submitter Plans .

.01 Plan Amendments Generally - Providers are required to amend their Pre-approved Plans to ensure that the form of their plans continues to satisfy the requirements of § 401. Providers must make reasonable and diligent efforts, as soon as practicable following the adoption of plan amendments, to ensure that Adopting Employers of the Provider’s plan have actually received and are aware of such plan amendments. The date on which each amendment is adopted by the Provider must be included with the amendment. Failure to comply with this requirement may result in the loss of eligibility to offer plans and the revocation of Opinion Letters that have been issued to the Provider.

.02 Interim Amendment Requirement - A plan must be operated in accordance with the written plan document. When there are changes with respect to plan qualification requirements that affect the provisions of the written plan document, the adoption of interim amendments generally will be required in accordance with the rules set forth in section 15 of Rev. Proc. 2016–37. See section 15.04 of Rev. Proc. 2016–37 regarding the time by which such amendments must be adopted. Failure to so amend may result in the loss of a plan’s qualified status. See section 9.04 for additional application submission requirements for interim amendments.

.03 Effect of Amendments; Reliance - As provided in section 7.03, an Adopting Employer may rely on an Opinion Letter issued with respect to a Pre-approved Plan only if the employer’s plan is identical to the Pre-approved Plan. An employer that amends any provision of a Pre-approved Plan, including its adoption agreement, or an employer that chooses to discontinue participation in a plan as amended by its Provider without substituting another Pre-approved Plan will lose reliance on the Opinion Letter. Notwithstanding the preceding sentence, the following types of amendments will not cause a plan to fail to be identical to a Pre-approved Plan and, thus, will not result in the employer losing reliance on the Opinion Letter:

(1) Amendments to the plan to add or change a provision (including choosing among options in the plan) and/or to specify or change the effective date of a provision, provided the employer

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is permitted to make the modification or amendment under the terms of the Pre-approved Plan as well as under § 401 or 403(a), and, except for the effective date, the provision is identical to a provision in the Pre-approved Plan;

(2) Sample or model amendments published by the IRS that specifically provide that their adoption will not cause such plan to fail to be identical to the Pre-approved Plan;

(3) Amendments that adjust the limitations under §§ 415, 402(g), 401(a)(17), and 414(q)(1)(B) to reflect annual cost-of-living increases, other than amendments that add automatic cost-of-living adjustment provisions to the plan;

(4) Plan language completed by the employer if such overriding language is necessary to satisfy § 415 or 416 because of the required aggregation of multiple plans under these sections, in accordance with section 5.05;

(5) Interim amendments or discretionary amendments that are related to a change in qualification requirements, in accordance with section 15 of Rev. Proc. 2016–37;

(6) Amendments that reflect a change of a Provider’s name, in which case the Provider must notify the IRS, in writing, of the change in name and certify that it still meets the conditions to be a Provider described in section 4.08 (see also section 14 regarding changes in employer identification numbers); and

(7) Amendments to the administrative provisions in the plan (such as provisions relating to investments, plan claims procedures, and employer contact information), provided the amended provisions are not in conflict with any other provision of the plan and do not cause the plan to fail to qualify under § 401.

.04 Obtaining Reliance After Employer Amendment - An employer maintaining a Nonstandardized Plan that may not rely on the plan’s Opinion Letter pursuant to this revenue procedure may obtain reliance for its plan by requesting a determination letter under certain circumstances. See section 20.03(3) of Rev. Proc. 2016–37 and sections 12 and 13 of Rev. Proc. 2017–4 (as updated annually) for application procedures and the conditions under which an employer that has made modifications to a Pre-approved Plan may file for a determination letter to obtain reliance. Section 12 of Rev. Proc. 2017–4 (as updated annually) provides guidance on (a) who is eligible to file for a determination letter, (b) which form to use in applying for a determination letter (for example, Form 5307 or Form 5300), and (c) whether the Cumulative List or the Required Amendments List as described in section 17 or 9, respectively, of Rev. Proc. 2016–37 will be used by the IRS in reviewing an employer’s plan. Under section 20.03(3) of Rev. Proc. 2016–37, an employer may submit a determination letter application on a Form 5300 only if the application is made upon initial qualification, plan termination, or in other circumstances identified by the IRS. For this purpose, an employer that previously filed an application on Form 5300 or Form 5307 with respect to the plan and was issued a favorable determination letter is not eligible to file a Form 5300 for initial plan qualification.

.05 Effect of Employer Amendments on Remedial Amendment Cycle

(1) Employer amendments made to a Pre-approved Plan will not affect the plan’s eligibility for a six-year remedial amendment cycle. However, if an employer amends a Pre-approved Plan as provided in section 8.06(2) within one year of the date the employer initially adopted the plan, the plan will not be eligible for the six-year remedial amendment cycle. In cases in which an amended

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