SECTION 8. IN WHAT

AREAS ARE DETERMINATION LETTERS ISSUED?

Circumstances under which determination letters are issued

.01 Employee Plans Rulings and Agreements issues determination letters in response to taxpayers’ written requests on completed transactions on matters within its jurisdiction.

Employee Plans Rulings and Agreements does not issue determination letters on the tax consequences of proposed transactions, except on the qualified status of employee plans under §§ 401, 403(a), 409, and 4975(e)(7), and the exempt status of any related trust under § 501.

Neither Employee Plans Rulings and Agreements nor any other office issues determination letters on plans under § 403(b). However, for information regarding the procedures for obtaining opinion and advisory letters for prototype plans and VS plans under § 403(b), see Rev. Proc. 2013–22, as modified by Rev. Proc. 2014–28 and Rev. Proc. 2015–22.

Types of requests .02 Determination letters may be requested on completed and proposed transactions as set forth in the table below:

REV. PROC.

TYPE OF REQUEST FORMS SECTION

1. Initial Qualification

a. Individually-designed plans (including collec- 5300 11

TYPE OF REQUEST FORMS

5300 11

tively bargained plans)

b. Pre-approved plans 5300 12

c. Employee Stock Ownership Plans (“ESOPs”) 5300, 5309 11

d. Multiple employer plans 5300 14

e. Group trusts 5316 16

January 2, 2018 170 Bulletin No. 2018–1

TYPE OF REQUEST FORMS REV. PROC.

SECTION

f. § 414(x) combined plans 5300 11

2. Termination

a. In general 5310, 6088 15

b. Multiemployer plan covered by PBGC insur- 5300, 6088, Cover 15

15

ance

5300, 6088, Cover letter

Note: Form 5310–A, Notice of Plan Merger, Consolidation, Spinoff or Transfer of Plan Assets or Liabilities – Notice of Qualified Separate Lines of Business, generally must be filed not less than 30 days before the merger, consolidation or transfer of assets and liabilities. The filing of Form 5310–A will not result in the issuance of a determination letter.

3. Volume Submitter Plans

Adoption of VS plans (if the employer has made 5307 13 modifications that are not extensive to the language of the approved specimen plan)

4. M&P and Volume Submitter Plans

a. Adoption of VS multiple employer plan (if the

controlling member has made modifications that are not extensive)

b. Adoption of VS plan (if the employer has

made extensive modifications)

c. Adoption of M&P plan (if the employer has

made any modifications)

d. Adoption of M&P plan (if employer has modi fied plan to add overriding language to satisfy §§ 415 or 416)

e. Adoption of M&P or VS plan (if the employer

requests a determination that the plan’s normal retirement age satisfies § 1.401(a)–1(b)(2))

5300 12

5300 12

5300 12

5300 or 5307 12

5300 12

Note: The types of requests listed in 3 and 4 above apply to determination letter requests submitted pursuant to Rev. Proc. 2015–36. The provisions of Rev. Proc. 2017–41 relating to the eligibility of adopting employers to submit determination letter requests during the third (and subsequent) six-year remedial amendment cycles will be set forth in future revisions to this revenue procedure.

5. Special Types of Requests

a. Leased employees (§ 414(n)) 5300, Cover letter 17

b. Partial termination 5300, Cover letter 9.09

c. Section 401(h) determination letters 5300, Cover letter 18

d. Section 420 determination letters including 5300, Cover letter, 18

18

other matters under § 401(a)

e. Section 420 determination letters excluding

other matters under § 401(a)

5300, Cover letter, Checklist

Cover letter, Checklist

18

Areas in which determination letters will not be issued

.03 Determination letters issued in accordance with this revenue procedure do not include determinations involving the following:

(1) Issues involving §§ 72, 79, 105, 125, 127, 129, 402, 403 (other than 403(a)), 404, 409(l), 409(n), 412, 414(h)(2), 415(m), 457, 511 through 515, and 4975 (other than 4975(e)(7));

(2) Plans or plan amendments for which automatic reliance is granted pursuant to section 19 of Rev. Proc. 2015–36, or section 7 of Rev. Proc. 2017–41;

(3) Plan amendments described below (these amendments will, to the extent provided, be deemed not to alter the qualified status of a plan under § 401(a)):

Bulletin No. 2018–1 171 January 2, 2018

Determination letter applications

Review of determination letters

(a) An amendment solely to permit a trust forming part of a plan to participate in a pooled fund arrangement described in Rev. Rul. 81–100, 1981–1 C.B. 326, as clarified and modified by Rev. Rul. 2004–67, 2004–2 C.B. 28; Rev. Rul. 2011–1, 2011–2 I.R.B. 251; Notice 2012–6, 2012–3 I.R.B. 293, and Rev. Rul. 2014–24, 2014–37 I.R.B. 529;

(b) An amendment that merely adjusts the maximum limitations under § 415 to reflect annual cost-of-living increases under § 415(d), other than an amendment that adds an automatic cost-of-living adjustment provision to the plan; and

(c) An amendment solely to include language pursuant to § 403(c)(2) of Title I of the Employee Retirement Income Security Act of 1974 (ERISA) concerning the reversion of employer contributions made as a result of mistake of fact;

(4) Determination letter requests with respect to plans that combine an ESOP (as defined in § 4975(e)(7)) with retiree medical benefit features described in § 401(h) (sometimes referred to as an HSOP):

(a) In general, determination letters will not be issued with respect to plans that combine an ESOP with another ESOP containing 401(h) features with respect to:

(i) whether the requirements of § 4975(e)(7) are satisfied;

(ii) whether the requirements of § 401(h) are satisfied; or

(iii) whether the combination of an ESOP with an ESOP that contains 401(h) features in a plan adversely affects its qualification under § 401(a);

(b) However, an arrangement will not be considered covered by section 8.03(4) of this revenue procedure if, under the provisions of the plan, the following conditions are satisfied:

(i) No individual accounts are maintained in the § 401(h) account (except as required by § 401(h)(6));

(ii) No employer securities are held in the § 401(h) account;

(iii) The § 401(h) account does not contain the proceeds (directly or otherwise) of an exempt loan as defined in § 54.4975–7(b)(1)(iii) of the Pension Excise Tax Regulations; and

(iv) The amount of actual contributions to provide § 401(h) benefits (when added to actual contributions for life insurance protection under the plan) does not exceed 25 percent of the sum of (1) the amount of cash contributions actually allocated to participants’ accounts in the plan, and (2) the amount of cash contributions used to repay principal with respect to the exempt loan, both determined on an aggregate basis since the inception of the § 401(h) arrangement; and

(5) Any issue if the same issue involving the same taxpayer or a related taxpayer is pending in a case in litigation or before an Appeals Office.

.04 The Service will accept applications for determination letters for plans seeking initial qualification and terminating plans any time during the year. See section 12 of Rev. Proc. 2016–37.

.05 Determination letters issued under this revenue procedure generally are not reviewed by any other office of the Service before they are issued. If a taxpayer believes that the conclusion

January 2, 2018 172 Bulletin No. 2018–1

reached in a determination letter is in error, the taxpayer may ask Employee Plans Rulings and Agreements to reconsider the matter or to request technical advice from the Office of Associate Chief Counsel (Tax Exempt and Government Entities) as described in Rev. Proc. 2018–2, this Bulletin.