SECTION 10. SCOPE OF PLAN

REVIEW

.01 Ongoing plans . (1) Changes in Qualification Requirements or Sec- tion 403(b) Requirements that have been or will be included on a Required

Amendments List . Except as otherwise provided in section 10.01(3), with respect to ongoing plans, the IRS will consider, in reviewing changes in Qualification Requirements and Section 403(b) Requirements that have been or will be included on a Required Amendments List, only those changes that appear on a Required Amendments List issued on or before the last day of the second calendar year preceding the year in which the determination letter application is submitted. ¹⁷

(2) Qualification Requirements or Sec- tion 403(b) Requirements that have not been and will not be included on a Required Amendments List . Except as otherwise provided in section 10.01(3), with respect to ongoing plans, the IRS will consider, in reviewing Qualification Requirements and Section 403(b) Requirements that have not been and will not be included on a Required Amendments List, only those Qualification Requirements and Section 403(b) Requirements that are in effect on or before the last day of the second calendar year preceding the year in which the determination letter application is submitted. ¹⁸

(3) Exceptions provided in annual rev- enue procedure . Any exceptions to section 10.01(1) and (2) will be provided in the annual revenue procedure that sets forth the instructions for requesting determination letters from Employee Plans Rulings and Agreements (annual revenue procedure) that applies with respect to the year in which the determination letter application is submitted. ¹⁹

(4) Examples . Examples 1 through 5 illustrate the IRS’s scope of plan review.

(a) Example 1 : Change in Qualification Require- ments that is included on a Required Amendments List . Plan Sponsor A maintains Plan X, an ongoing qualified individually designed plan. During 2024, Law L is enacted and included on the 2024 Required Amendments List. Plan Sponsor A is eligible to submit a determination letter for Plan X pursuant to section 9.02 and submits a determination letter application with respect to Plan X during the 2026 calendar year. The IRS will consider Law L in its review of Plan X because Law L was included on

15 See section 8 of Rev. Proc. 2019-20 for a special sanction structure applicable to Merged Plans.

16 See section 6 of Rev. Proc. 2019-20, which provides an extended remedial amendment period applicable to Merged Plans submitted during the Merged Plan submission period.

17 Generally, the Required Amendments List includes changes in Qualification Requirements and Section 403(b) Requirements that result in Disqualifying Provisions and Form Defects, respectively. See, for example, Part III of Notice 2021-64, for a description of the content of the Required Amendments List.

18 For a list of the most recent changes in Qualification Requirements and Section 403(b) Requirements, see the Operational Compliance List. With respect to qualified plans, see the Cumulative Lists for years beginning on or after 2005. Notices setting forth the Cumulative Lists can be found on the IRS website at Cumulative List of Changes in Retirement Plan Qualification Requirements | Internal Revenue Service (irs.gov). With respect to section 403(b) plans for years prior to 2016, see §§ 1.403(b)-1 through -11 and the requirements on the Cumulative Lists that are also applicable to section 403(b) plans.

19 Rev. Proc. 2022-4 is the annual revenue procedure for 2022.

November 21, 2022 494 Bulletin No. 2022–47

the 2024 Required Amendments List (a Required Amendments List issued on or before the last day of the second calendar year preceding the year in which the determination letter application is submitted).

(b) Example 2 : Change in Qualification Require- ments that has not yet been included on a Required Amendments List . The facts are the same as in Exam- ple 1, except that, during 2024, Law M also is enacted. Although Law M is a law that will be included on a Required Amendments List, Law M has not been included on a Required Amendments List as of December 31, 2024, because guidance has yet to be issued with respect to Law M. During 2024, Plan Sponsor A adopts an amendment that reflects Law M. Even though Plan Sponsor A adopted an amendment to reflect Law M, the IRS will not consider Law M in its review of Plan X because Law M was not included on a Required Amendments List that was issued on or before December 31, 2024 (the last day of the second calendar year preceding the year in which the determination letter application is submitted).

(c) Example 3 : Change in Qualification Require- ments that is included on a Required Amendments List after IRS review cutoff date . The facts are the same as in Example 1, except that, during 2025, Law N also is enacted. Law N is included on the 2025 Required Amendments List. During 2025, Plan Sponsor A adopts an amendment that reflects Law N. Even though Law N is included on a Required Amendments List and Plan Sponsor A adopted an amendment to reflect Law N, the IRS will not consider Law N in its review of Plan X because Law N was not included on a Required Amendments List that was issued on or before December 31, 2024 (the last day of the second calendar year preceding the year in which the determination letter application is submitted).

(d) Example 4 : Scope-of-review exception set forth in annual revenue procedure . The facts are the same as in Example 3, except that, pursuant to section 10.01(3), the IRS sets forth an exception to the general rule by providing in Rev. Proc. 2026-4 that it will consider Law N in its review of plans submitted for a determination letter during 2026. As a result, even though Law N would require an amendment be made to the plan but generally would not be considered by the IRS in its review of a plan submitted during 2026 because Law N was not included on a Required Amendments List issued on or before December 31, 2024 (the last day of the second calendar year preceding the year in which the determination letter application is submitted), the IRS will consider Law N in its review of Plan X.

(e) Example 5 : Change in Qualification Require- ments that is not included on a Required Amend- ments List and is effective after IRS review cutoff date . The facts are the same as in Example 1, except that, during 2025, Law O also is enacted and is in effect as of January 1 of that year. Law O would not appear on a Required Amendments List because it is a new discretionary provision. During 2025, Plan Sponsor A adopts a discretionary amendment that reflects Law O. Even though Plan Sponsor A adopted a discretionary amendment to reflect Law O, the IRS will not consider Law O in its review of Plan X because Law O is effective after December 31, 2024 (the last day of the second calendar year preceding the year in which the determination letter application is submitted).

.02 Terminating plans . Terminating plans will be reviewed for amendments required to be adopted in connection with plan termination (see section 5.03(3)).

.03 Plan restatement . An individually designed plan generally must be restated, at the time the determination letter application is submitted, to incorporate all previously adopted amendments. However, a terminating plan need not be restated.

.04 A determination letter does not consider issues under Title I of ERISA . A determination letter issued under this revenue procedure will not address issues under Title I of ERISA. See section 11 for details regarding a Plan Sponsor’s reliance on a determination letter.

.05 Section 403(b) plans for which a determination letter will not be issued . A determination letter will not be issued for the following section 403(b) individually designed plans:

(1) a TEFRA church defined benefit plan (see § 1.403(b)-10(f)(2)); or

(2) a plan grandfathered under Rev. Rul. 82-102, 1982-1 CB 62.

.06 A determination letter does not consider issues related to a section 403(b) plan’s coverage of multiple employers that are not in a single controlled group . For a section 403(b) plan that is not a governmental plan within the meaning of section 414(d), a determination letter does not express an opinion, and may not be relied upon, with respect to whether the plan meets any requirements that apply due to a plan’s coverage of multiple employers that are not in a single controlled group for purposes of section 414(b), (c), (m), or (o) and the regulations thereunder. For a section 403(b) plan that is a governmental plan within the meaning of section 414(d), a determination letter does not express an opinion, and may not be relied upon, with respect to whether the plan meets any requirements that apply due to a plan’s coverage of multiple employers that are not aggregated in a single controlled group in a manner consistent with Notice 89-23, 1989-1 CB 654.