SECTION 14. WHAT

ARE THE DETERMINATION LETTER FILING PROCEDURES FOR INDIVIDUALLY DESIGNED MULTIPLE EMPLOYER PLANS?

(h) A copy of the plan’s latest favorable determination letter, if applicable;

(i) Applications filed on Form 5307 for VS plans in situations in which the employer has made modifications that are not extensive to the language of the approved specimen plan, and the plan does not authorize the practitioner to amend on behalf of the adopting employer, must include any interim amendments that were adopted for qualification changes on the applicable Cumulative List used in reviewing and approving the underlying VS plan; and

(j) Any other information or material that may be required by EP Determinations.

(3) Deviations from the language of the approved specimen plan will be evaluated based on the extent and complexities of the changes. If the changes are determined to be extensive, EP Determinations will require the applicant to file Form 5300 and pay the higher user fee. If the changes are too extensive to be compatible with the VS program, the adopting employer’s plan will not be eligible for the VS program. See section 20.03(5) of Rev. Proc. 2016–37.

(4) An employer will not be treated as having adopted a VS plan if the employer has signed or otherwise adopted the plan prior to the date on the VS specimen plan’s advisory letter. In this case, the determination letter application for the employer’s plan may not be filed on Form 5307 and will not be eligible for a reduced user fee. A determination letter application for a VS plan must be based on the approved VS specimen plan with any applicable modifications. See section 19.03 of Rev. Proc. 2015–36.

.03 In accordance with section 14 of Rev. Proc. 2016–37, adopting employers of M&P and VS plans have a six-year remedial amendment cycle. The deadline for an adopting employer to adopt the approved M&P or VS plan closes with the two-year window at the end of the plan’s remedial amendment cycle. An adopting employer of a modified VS plan that desires to obtain a determination letter for reliance must submit the application within the two-year window, except for a request for a determination on partial termination pursuant to section 12.01(7). Applications (other than those pursuant to section 12.01(7)) submitted outside of the two-year window will be returned.

Scope .01 This section contains procedures for applications filed with respect to plans described in § 413(c). A plan is not described in § 413(c) if all the employers maintaining the plan are members of the same controlled group or affiliated service group under § 414(b), (c), or (m).

Applicant must request letter for plan in the name of the controlling member

.02 A determination letter applicant for a multiple employer plan that is otherwise eligible to apply for a determination letter must request a letter for the plan in the name of the controlling member (the employer who sponsors the multiple employer plan). An applicant requesting a letter for the plan submits one Form 5300 application for the plan in the name of the controlling member, either including or omitting the design-based safe harbor questions. A participating employer maintaining a multiple employer plan may not request its own determination letter but may rely on a favorable determination letter issued to the controlling member, except with respect to the requirements of §§ 401(a)(4), 401(a)(26), 401(l), 410(b), and 414(s), and, if the employer maintains or has ever maintained another plan, §§ 415 and 416.

Bulletin No. 2018–1 183 January 2, 2018

Where to file requests .03 The application is to be sent to the address provided in section 31. See Appendix A, section .06(1)(d) and (e) for the applicable user fee.

Addition of employers .04 The controlling member may continue to rely on its favorable determination letter after another employer commences participation in the controlling member’s multiple employer plan. An employer that commences participation in the multiple employer plan after a controlling member receives a favorable determination letter may rely on the determination letter of the controlling member.