SECTION 12. WHEN

MAY AN ADOPTER OF A MASTER AND PROTOTYPE OR VOLUME SUBMITTER PLAN SUBMIT A DETERMINATION LETTER APPLICATION?

Eligibility to apply for a determination letter

.06 EP Determinations will consider § 414(x) in issuing determination letters for individually designed plans that consist of a defined benefit plan and a qualified cash or deferred arrangement (subject to the eligibility requirements in section 11.01 of this revenue procedure). A § 414(x) plan sponsor must submit two Forms 5300 and two applicable user fees.

.01 Rev. Proc. 2015–36 describes the procedures for requesting opinion letters and advisory letters on M&P and VS plans for applications submitted with respect to cycles prior to the third six-year remedial amendment cycle. This section 12 generally provides guidance on the eligibility of an adopting employer of an M&P or VS plan that received an opinion or advisory letter, pursuant to Rev. Proc. 2015–36, to submit a determination letter application with regard to that plan. Rev. Proc. 2017–41 modified the pre-approved plan program and is applicable to providers of pre-approved plans that submit requests for opinion letters with respect to the third (and subsequent) six-year remedial amendment cycles. Guidance on the eligibility of an employer that adopts a pre-approved plan that has received an opinion letter for the third (and subsequent) six-year remedial amendment cycles to submit a determination letter application, and the procedures for a submission with regard to such pre-approved plan, will be set forth in future revisions to this revenue procedure.

(1) Except as provided in section 12.01(5)(a), an adopting employer of an M&P plan (whether standardized or nonstandardized) may not apply for a determination letter for the plan on Form 5307.

(2) An adopting employer of a VS plan may not apply for a determination letter for the plan on Form 5307 unless the employer has modified the terms of the approved plan, the approved plan is not a multiple employer plan and the modifications are not extensive. Section 13 of this revenue procedure describes the procedures for requesting determination letters on Form 5307 for a VS plan in situations in which the employer has not made extensive modifications to the language of the approved specimen plan and the approved plan is not a multiple employer plan.

(3) A controlling member of a VS multiple employer plan (eligible to receive a determination letter as described in section 14.02 of this revenue procedure) that makes modifications to a VS multiple employer plan in situations in which the modifications are not extensive, may apply for a determination letter on Form 5300 in the two-year window described in section 13.03 of this revenue procedure regardless of whether a prior favorable determination letter has been issued with respect to the plan.

(4) An adopting employer that makes:

January 2, 2018 180 Bulletin No. 2018–1

Reliance equivalent to determination letter

(a) Extensive modifications to an approved VS plan, or

(b) Any modification to an approved M&P plan,

may submit a determination letter application for the plan for initial plan qualification only during the two-year window described in section 13.03 of this revenue procedure, using Form 5300, as long as a favorable determination letter has never been issued with respect to the plan. See section 20 of Revenue Procedure 2016–37 regarding the effect of employer modifications on the six-year remedial amendment cycle.

(5) Notwithstanding the preceding paragraph, an adopter of an M&P or VS plan that has made no modifications other than the modifications listed in section 12.01(5)(a) and (b) of this revenue procedure may submit an application for a determination letter on Form 5300 (or on Form 5307 in the case of an application submitted pursuant to 12.01(5)(a)) regardless of whether a prior favorable determination letter has been issued with respect to the plan. Such an application may only be submitted during the two-year window described in section 13.03 of this revenue procedure.

(a) The employer has modified the terms of the M&P plan by adding overriding language necessary to coordinate the application of the limitations of § 415 or the requirements of § 416 because the employer maintains multiple plans.

(b) The plan is a pension plan and the normal retirement age under the plan is lower than 62. In this case, a determination letter is required for reliance that the plan’s normal retirement age satisfies the requirements of § 1.401(a)–1(b)(2) of the regulations.

An employer that submits an application for a determination letter for an M&P or VS plan for one or more of the reasons described in section 12.01(5)(a) and (b) of this revenue procedure must identify the applicable reason or reasons in a cover letter to the application and include a copy of the VS or M&P opinion or advisory letter.

If an adopting employer submits an application for a determination letter for an M&P or VS plan pursuant to section 12.01(2), (3), (4), or (5), the plan will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan.

(6) An adopting employer of an approved plan that is eligible to submit a determination letter application on Form 5300 in accordance with section 12.01(3), (4), or (5) of this revenue procedure may also request a determination regarding leased employee status ( see section 17.05 of this revenue procedure).

(7) An adopting employer of an approved plan may request a determination regarding partial termination ( see section 9.09 of this revenue procedure) at any time, using Form 5300, regardless of whether the employer is otherwise eligible to submit a determination letter application in accordance with section 12.01(3), (4), or (5) of this revenue procedure.

.02 If an employer can rely on a favorable opinion or advisory letter pursuant to section 19 of Rev. Proc. 2015–36, as modified by Rev. Proc. 2016–37, or section 7 of Rev. Proc. 2017–41, the opinion or advisory letter is equivalent to a favorable determination letter. For example, the favorable opinion or advisory letter is treated as a favorable determination letter for purposes of section 23 of this revenue procedure, regarding the effect of a determination letter. Rev. Proc. 2015–36 also describes the extent to which adopting employers of such plans may rely on favorable opinion or advisory letters without requesting individual determination letters.

Bulletin No. 2018–1 181 January 2, 2018