SECTION 10. WHAT IS

THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION LETTERS?

.10 Publication 794, Favorable Determination Letter, contains other information regarding the scope of a determination letter, including the requirement that all information submitted with the application be retained as a condition of reliance. In addition, the specific terms of each letter may further define its scope and the extent to which it may be relied upon. Publication 794 can also be found at http://www.irs.gov/Forms-&-Pubs .

Scope .01 Section 6 of this revenue procedure and this section 10 contain procedures that are generally applicable to all determination letter requests. Additional procedures for specific types of requests are contained in sections 11 through 18 of this revenue procedure.

Complete information required

.02 An applicant requesting a determination letter must file the material required by this revenue procedure with Employee Plans Rulings and Agreements Determinations Office (EP Determinations) at the address provided in section 31 of this revenue procedure. The filing of the application, when accompanied by all information and documents required by this revenue procedure, will generally serve to provide EP Determinations with the information required to make the requested determination. However, in making the determination, EP Determinations may require the submission of additional information. If an application is determined by EP Determinations to be procedurally or technically deficient, EP Determinations may decline to

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Complete copy of plan and trust instrument and applicable amendments required

Submission of reference list encouraged

Separate application for each single § 414(l) plan

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 10.12 of this revenue procedure for additional information. Information submitted to EP Determinations in connection with an application for determination may be subject to public inspection to the extent provided by § 6104. The applicant must include EPCRS documentation for any closing agreement or compliance statement. This includes applicable attachments or model schedules and copies of corrective amendments.

.03 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 plan amendments (including interim amendments, if applicable) adopted or effective subsequent to the most recent determination letter issued with respect to the plan (other than amendments adopted on behalf of the employer that adopted a VS plan 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.

.04 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 all Required Amendment Lists, and all Cumulative Lists (as applicable). A sample reference list will be made available at www.irs.gov. Submission of a reference list is not mandatory.

.05 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 .06 If the plan (other than a plan submitting an application for initial determination) 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, and the opinion or advisory letter, if applicable. The application also must include all amendments necessary to verify that the plan was amended timely.

Plans involving mergers .07 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 each of the plans that were 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 or adoption agreement, and the opinion or advisory letter for the plan, if applicable. The application also must include all amendments necessary to verify that each plan was amended timely. Additionally, for each plan involved in a merger the applicant must provide all signed and dated plan amendments (including interim amendments, if applicable) adopted or effective subsequent to the most recent determination letter issued with respect to the plan.

User fees .08 The appropriate user fee, if applicable, must be paid according to the procedures in section 30 of this revenue procedure. Form 8717, User Fee for Employee Plan Determination Letter Request, must accompany each determination letter request. In addition, if the user fee for a determination letter request is paid through www.pay.gov, submit a copy of the payment confirmation in addition to Form 8717. If the criteria for the user fee exemption are met in accordance with Notice 2017–1, 2017–2 I.R.B. 367, the certification on Form 8717 must be signed. Stamped signatures are not acceptable.

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Interested party notification and comment

Contrary authority must be distinguished

Employer/employee relationship

.09 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 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 19 and 20 of this revenue procedure.

.10 If the application for determination involves an issue with respect to which contrary authorities exist, failure to disclose or distinguish such contrary authorities will result in requests for additional information or the determination that the application is not complete and cannot be processed.

.11 EP Determinations does not make determinations regarding the existence of an employeremployee 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. 2018–1.

Incomplete applications .12 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. See section 10.03 of this revenue procedure.

(2) Procedurally Deficient Determination Letter Applications – Individually Designed Plans. A procedurally deficient application must either be perfected in accordance with section 10.12(2)(a) of this revenue procedure or resubmitted in accordance with section 10.12(2)(b).

(a) If an application is procedurally deficient, EP Determinations 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 EP Determinations’ letter, the case will be closed. The application will not be returned, and any user fee with respect to the application will not be refunded.

(b) If a determination letter application for an individually designed plan is closed pursuant to section 10.12(2)(a) of this revenue procedure, the applicant may resubmit the determination application. In such case, the entire application must be resubmitted, including a new user fee (if applicable).

(3) Procedurally Deficient Determination Letter Applications – Pre-approved Plans. A procedurally deficient application submitted by an adopter of an M&P or VS plan must either be perfected in accordance with section 10.12(3)(a) of this revenue procedure or resubmitted in accordance with section 10.12(3)(b).

(a) If an application submitted by an adopter of an M&P or VS plan is procedurally deficient,

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Effect of failure to disclose material fact

EP Determinations 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 EP Determinations’ letter, the case will be closed. The application will not be returned, and any user fee with respect to the application will not be refunded.

(b) If a determination letter application for an adopter of an M&P or VS plan is closed pursuant to section 10.12(3)(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 EP Determinations’ letter.

(c) If a determination letter application for an adopter of an M&P or VS plan is closed pursuant to section 10.12(3)(a) and the postmark date of a response submitted pursuant to section 10.12(3)(a) occurs after the end of the plan sponsor’s remedial amendment cycle, EP Determinations 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. The application will not be returned, and any user fee with respect to the application will not be refunded.

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

(a) If EP Determinations 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, a letter will be sent to the applicant, giving 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 letter referenced in section 10.12(4)(b) of this revenue procedure, the case will be closed. The application will not be returned and any user fee submitted with respect to the application will not be refunded.

.13 EP Determinations 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 EP Determinations 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 on the determination letter.

Where to file requests .14 Requests for determination letters are to be addressed to EP Determinations at the address provided in section 31 of this revenue procedure.

Determination letter applications will not be accepted via fax.

Submission of related plans .15 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 numbers and employer identification numbers of all the related plans submitted together. EP Determinations will determine whether these applications will be worked simultaneously.

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Withdrawal of requests .16 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, however the applicant may submit a subsequent request for a determination letter pursuant to section 11 of this revenue procedure. The application must be accompanied with the appropriate user fee in accordance with section 30 of this revenue procedure. Any such application will be treated as an initial request.

Right to status conference .17 An applicant for a determination letter has the right to a have a conference with the Director, EP Rulings and Agreements 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

.18 A request for a status conference with the Director, EP Rulings and Agreements is to be made in writing and is to be sent to the specialist assigned to review the application or, if the applicant does not know who is reviewing the application, to the Director, EP Rulings and Agreements at the address provided in section 31 of this revenue procedure.

Correct format required .19 Documents submitted should not be stapled or bound. The use of quickly removable clips or rubber bands is acceptable. The application form should be prepared using Courier 10 point font. Documents which must be unstapled or unbound may suffer data loss or may not scan properly, which impacts efficiency and delays processing the application.