SECTION 9. OPINION

LETTER APPLICATIONS

- INSTRUCTIONS TO PROVIDERS AND OTHER RULES FOR APPLICATIONS AND LETTERS

plan remains eligible for the six-year cycle and the Adopting Employer wishes to and is otherwise eligible to file for a determination letter for the plan as provided in section 12 of Rev. Proc. 2017–4 (as updated annually), the determination letter application must be filed during the applicable two-year window for employer adoption described in section 12.03 of this revenue procedure. Except for plans that are treated as individually designed, as described in section 8.06, the plan submitted for a determination letter will be reviewed based on the Cumulative List applicable to the underlying Pre-approved Plan. See also section 8.07.

(2) A plan will not lose eligibility for the six-year remedial amendment cycle if a closing agreement under the Audit Closing Agreement Program or a compliance statement under the Voluntary Correction Program of the Employee Plans Compliance Resolution System (EPCRS) has been issued with respect to the employer’s plan with regard to the amendment. See section 6.05(2)(b) of Rev. Proc. 2016–51, 2016–42 I.R.B. 465, regarding the ability of the employer to rely on the Opinion Letter.

.06 Pre-approved Plans Treated as Individually Designed - A Pre-approved Plan will be treated as individually designed under the following circumstances:

(1) Except as provided in section 8.03, an employer makes any amendment to a Standardized Plan;

(2) An employer amends a Pre-approved Plan (including its adoption agreement if applicable) to incorporate a type of plan not allowed in the Opinion Letter program, as described in section 6.03;

(3) The IRS, in its discretion, determines that a plan is an individually designed plan due to the nature and extent of amendments made; or

(4) An employer chooses to discontinue participation in a Pre-approved Plan that has been amended by the Provider, without substituting another Pre-approved Plan.

.07 Procedures for Pre-approved Plans Treated as Individually Designed - If a plan is treated as individually designed, the employer may not file for a determination letter using a Form 5307. However, if an employer is otherwise eligible to file a determination letter application pursuant to section 4 of Rev. Proc. 2016–37, the employer may file for a determination letter on Form 5300. In this case, the IRS will review the plan using the Required Amendments List (as described in section 12 of Rev. Proc. 2016–37) that was issued during the second calendar year preceding the submission of the determination letter application. See section 8.05(1) with respect to a plan’s continued eligibility for the six-year remedial amendment cycle and the time period for filing a determination letter (if applicable).

.01 Issuance of Opinion Letters -The IRS will, upon the request of a Provider, issue an Opinion Letter as to the qualification in form of the Provider’s plan under §§ 401, 403(a), and 4975(e)(7).

.02 Submission of Opinion Letter Applications - Rev. Proc. 2016–37 provides that every Pre-approved Plan will continue to have a regular six-year remedial amendment cycle. Rev. Proc. 2016–37 also states that Providers of Pre-approved Plans must submit requests for Opinion Letters during the on-cycle submission period that relates to an applicable six-year remedial amendment cycle. The third six-year remedial amendment cycle for pre-approved defined contribution plans began on February 1, 2017, and ends on January 31, 2023. Pursuant to this revenue procedure, the on-cycle submission period for Pre-approved Plan Providers to submit applications for Opinion Letters begins on October 2, 2017, and ends on October 1, 2018.

July 17, 2017 110 Bulletin No. 2017–29

Providers may apply for Opinion Letters at other times, but these filings will be considered “off-cycle.” See section 11 regarding IRS review of off-cycle filings.

.03 Procedure for Requesting Opinion Letters - A request for an Opinion Letter relating to a plan must be submitted on the version of Form 4461, Application for Approval of Master or Prototype or Volume Submitter Defined Contribution 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 Practitioner), as appropriate, that is applicable at the time of the request. The IRS is updating these forms and will announce when the forms become available. Until such time as the forms become available, an application for an Opinion Letter for a Pre-approved Plan must be made by submitting to the IRS the plan along with a completed and signed Submission for Pre-approved Defined Contribution Plan Opinion Letter provided in Appendix A of this revenue procedure. The request must be accompanied by (1) the applicable required user fee as provided in Appendix B of this revenue procedure, (2) a signed certification that all necessary amendments required by the IRS to retain the qualified status of the Provider’s plan have been made and communicated to all Adopting Employers, and (3) either Attachment I to Form 4461 or Attachment I-A to Form 4461–A, as applicable. These attachments may be downloaded from the Internet at the following address: http://www.irs.gov/Retirement-Plans/Preapproved-Plan- Submission-Procedures. All information on the Submission for Pre-approved Defined Contribu- tion Plan Opinion Letter must be typed. The request must be sent to the address listed in section 19. The application must include a copy of the plan document and any adoption agreement, if applicable. Copies of trusts or other funding mediums should not be submitted. The IRS will not review for, and the Opinion Letter will not cover, any provisions included in trust documents.

.04 Additional Submission Requirements for Interim Amendments - In addition to the application described in section 9.03, the Provider must submit a certification that all interim amendments on the applicable Cumulative List have been made, and a cover letter summarizing the changes to the plan that are affected by each such interim amendment. The IRS retains the right to request and secure from the Provider in appropriate circumstances copies of all interim amendments reflected on the applicable Cumulative List that the Provider has adopted on behalf of its Adopting Employers.

.05 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 11 regarding off-cycle filing. To expedite the review of substantially identical plans that are not Mass Submitter plans, the IRS encourages plan drafters and Providers 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 Provider);

(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 for each plan);

(3) A description of each location in the plan for which the application is being submitted that is not word-for-word 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 Provider or plan drafter is aware that

Bulletin No. 2017–29 111 July 17, 2017

a lead plan or any substantially identical plan has been assigned for review to a specialist, the cover letter also should 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 paragraphs (3) and (4) above as a representation of a material fact for purposes of issuing an Opinion Letter.

.06 Use of Same Basic Plan Document by Multiple Plans/Separate Applications Required for Different Categories of Adoption Agreement Plans

(1) In general, provided that the provisions of a basic plan document are identical for all plans using that document, separate defined contribution adoption agreements may be associated with the same defined contribution basic plan document and separate defined benefit adoption agreements may be associated with the same defined benefit basic plan document. Thus, for example, a profit-sharing plan, a money purchase pension plan other than a target benefit plan, a target benefit plan, and an ESOP may all use the same defined contribution basic plan document. Defined benefit plans and defined contribution plans may not use the same basic plan document.

(2) A profit-sharing plan (with or without a § 401(k) arrangement) that does not include an ESOP and a money purchase pension plan that is not a target benefit plan may use the same adoption agreement; however, separate adoption agreements are required for ESOPs and target benefit plans. In addition, although an ESOP is permitted to contain both profit-sharing and § 401(k) features in the same adoption agreement, an employer that adopts the plan may not adopt such profit-sharing and § 401(k) features without also adopting the ESOP portion of the plan. The adoption agreement submitted for a defined benefit plan may contain any combination of integrated formulas (that is, formulas that provide for permitted disparity), non-integrated formulas, and cash balance formulas. Standardized and Nonstandardized Plans may not be combined in a single adoption agreement.

(3) Basic plan documents and associated adoption agreements used for governmental plans (that is, plans described in § 414(d)) must be separate from the basic plan documents and associated adoption agreements used for nongovernmental plans. Similarly, separate basic plan documents and the associated adoption agreements must be used for non-electing church plans (church plans described in § 414(e) that have not made the election provided in § 410(d)). Thus, for example, a Provider that wishes to obtain Opinion Letters for a governmental plan and a non-electing church plan must submit a separate basic plan document and associated adoption agreement for the governmental plan and a separate basic plan document and associated adoption agreement for the non-electing church plan.

(4) A separate application form must be submitted with respect to each adoption agreement for which an Opinion Letter is requested. A basic plan document and all associated adoption agreements should be submitted simultaneously. Only one copy of the basic plan document should be provided. However, if additional adoption agreements are later submitted with respect to a basic plan document, the Provider must submit a copy of the basic plan document with each submission and include a cover letter identifying the original submission. The plan number given to such basic plan document must remain the same as in the prior submission.

.07 Separate Categories and Applications Required for Single Document Plans

(1) A separate plan and application are required for each of the following categories of Single Document Plans: a target benefit plan, an ESOP, and a defined benefit plan. A profit-sharing plan (with or without a § 401(k) arrangement) that does not include an ESOP and a money purchase

July 17, 2017 112 Bulletin No. 2017–29

pension plan that is not a target benefit plan may be combined in a single plan and application. In addition, although an ESOP is permitted to contain both profit-sharing and § 401(k) features in the same plan, an employer that adopts the plan may not select the profit-sharing and § 401(k) features without also selecting the ESOP provisions in the plan. Standardized and Nonstandardized Plans may not be combined in one Single Document Plan.

(2) With respect to a governmental plan or a non-electing church plan, a separate plan and application must be submitted for each. Thus, for example, separate plans and application forms must be submitted for a governmental plan, a nongovernmental plan, and a non-electing church plan.

.08 Sample Language - A Listing of Required Modifications (LRM) containing sample plan language is available from the IRS. Although the sample language is designed for use in plans that use an adoption agreement format, in order to expedite processing, Providers are encouraged to refer to the sample language as a guide in drafting plans that do not use an adoption agreement format. To expedite the review of their plans, Providers are encouraged to use LRM language if appropriate and to identify the location of such language in their Pre-approved Plan. LRMs may be downloaded from the Internet at http://www.irs.gov/Retirement-Plans/Listing-of-Required- Modifications-LRMs .

.09 Material Furnished to Adopting Employers - A Provider 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.

.10 Effect of Failure to Disclose Material Fact or to Accurately Provide Information - A failure to disclose a material fact or misrepresentation of a material fact in the application or the failure to accurately provide any of the information called for on any form required by this revenue procedure may result in the inability of Adopting Employers to rely on the Opinion Letter.

.11 Additional Information May Be Requested - When reviewing the application for an Opinion Letter, the IRS may, in its discretion, require any additional information that it deems necessary, including a demonstration of how the variables (options or alternatives) in the Pre-approved Plan interrelate to satisfy the qualification requirements of the Code. If a letter requesting changes to the Pre-approved Plan is sent to the Provider or an authorized representative, changes responsive to the letter must be received no later than 30 days from the date of the letter, and the response must include either a copy of the plan with the changes highlighted or, if the changes are not extensive, replacement pages. If the changes are not received within 30 days, the application may be considered withdrawn. An extension of the 30-day time limit will only be granted for good cause.

.12 Inadequate Submissions - The IRS will return, without further action, plans that are not in substantial compliance with the qualification requirements of § 401, 403(a), or 4975(e)(7), or plans that are so deficient that they cannot be reviewed in a reasonable period of time. A plan may be considered not to be in substantial compliance if, for example, it omits language needed to comply with a qualification requirement or merely incorporates qualification requirements by reference to the applicable Code section. The IRS will not consider a plan with such an omission or cross-reference until after the plan has been revised, and the modified plan will be treated as a new request for approval as of the date it is resubmitted. No additional user fee will be charged if an inadequate submission is amended to be in substantial compliance and is resubmitted to the IRS within 30 days following the date the Provider is notified of such inadequacy.

.13 Nonidentification of Questionable Issues May Cause Delay - If the Pre-approved Plan submitted as part of an Opinion Letter request contains a provision that gives rise to an issue for

Bulletin No. 2017–29 113 July 17, 2017