SECTION 21. HOW

DOES EMPLOYEE PLANS RULINGS AND AGREEMENTS HANDLE DETERMINATION LETTER REQUESTS?

Oral advice .01 Oral advice

(1) EP Determinations does not issue determination letters on oral requests. However, personnel in EP Determinations ordinarily will discuss with taxpayers or their representatives inquiries regarding substantive tax issues, whether EP Determinations will issue a determination letter on particular issues, and questions relating to procedural matters about submitting determination letter requests. Any discussion of substantive issues will be at the discretion of EP Determinations on a time-available basis, will not be binding on the Service, and cannot be relied upon as a basis of obtaining retroactive relief under the provisions of § 7805(b). A taxpayer may seek oral technical assistance from a taxpayer service representative when preparing a return or report, under established procedures. Oral advice is advisory only, and the Service is not bound to recognize it in the examination of the taxpayer’s return.

(2) The advice or assistance furnished, whether requested by personal appearance, telephone, or correspondence will be limited to general procedures, or will direct the inquirer to source material, such as pertinent Code provisions, regulations, revenue procedures, and revenue rulings that may aid the inquirer in resolving the question or problem.

Conferences .02 EP Determinations may grant a pre-submission conference upon written request from a taxpayer or the taxpayer’s representative, provided the request shows that a substantive plan, amendment, etc., has been developed for submission to the Service, but that special problems or issues are involved, and EP Determinations concludes that a conference would be warranted in the interest of facilitating review and determination when the plan, etc., is formally submitted. Statements made by EP Determinations at a pre-submission conference will not be binding on the Service, and cannot be relied upon as a basis of obtaining retroactive relief under the provisions of § 7805(b). See section 10.17 of this revenue procedure regarding the right to a status conference on applications pending for at least 270 days.

Determination letter based solely on administrative record

.03 Administrative record

(1) In the case of a request for a determination letter, the determination of EP Determinations or the Appeals office on the qualification or non-qualification of the retirement plan shall be based solely upon the facts contained in the administrative record. The administrative record shall consist of the following:

(a) The request for determination, the retirement plan and any related trust instruments, and any

Bulletin No. 2018–1 195 January 2, 2018

Notice of final determination

Issuance of the notice of final determination

written modifications or amendments made by the applicant during the proceedings within the Service;

(b) All other documents submitted to the Service by, or on behalf of, the applicant with respect to the request for determination;

(c) All written correspondence between the Service and the applicant with respect to the request for determination, and any other documents issued to the applicant from the Service;

(d) All written comments submitted to the Service pursuant to sections 19.01(2), (3), and (4) of this revenue procedure, and all correspondence relating to comments submitted between the Service and persons (including the PBGC and the DOL) submitting comments pursuant to sections 19.01(2), (3), and (4) of this revenue procedure; and

(e) In any case in which the Service makes an investigation regarding the facts as represented or alleged by the applicant in the request for determination or in comments submitted pursuant to sections 19.01(2), (3), and (4) of this revenue procedure, a copy of the official report of such investigation.

(2) The administrative record shall be closed upon the earlier of the following events:

(a) The date of mailing of a notice of final determination by the Service with respect to the application for determination; or

(b) The filing of a petition with the United States Tax Court seeking a declaratory judgment with respect to the retirement plan.

(3) Any oral representation or modification of the facts as represented or alleged in the application for determination or in a comment filed by an interested party, which is not reduced to writing, shall not become a part of the administrative record and shall not be taken into account in the determination of the qualified status of the retirement plan by EP Determinations or the Appeals office.

.04 In the case of final determination, the notice of final determination shall be one of the following:

(1) The letter issued by EP Determinations or the Appeals office which states that the applicant’s plan satisfies the qualification requirements of the Code. The favorable determination letter will be sent by certified or registered mail in situations in which an interested party, the DOL, or the PBGC has commented on the application for determination.

(2) The letter issued, by certified or registered mail, by EP Determinations or the Appeals office subsequent to a letter of proposed determination, stating that the applicant’s plan fails to satisfy the qualification requirements of the Code.

.05 EP Determinations or the Appeals office will send the notice of final determination to the applicant, to the interested parties who have previously submitted comments on the application to the Service (or to the persons designated by them to receive such notice), to the DOL if the DOL has submitted a comment, and to the PBGC, if the PBGC has submitted a comment.

January 2, 2018 196 Bulletin No. 2018–1