SECTION 9. CIRCUMSTANCES

UNDER WHICH A PLAN MAY BE SUBMITTED FOR A DETERMINATION LETTER

.01 In general . A Plan Sponsor of an individually designed plan may submit a determination letter application for an initial plan determination, for a determination upon plan termination, and in other circumstances, as described in sections 9.02, 9.04, and 9.06, respectively. In addition, a Plan Sponsor of a qualified individually designed plan may submit a determination letter application for a determination with

respect to a Merged Plan, as described in section 9.05.

.02 Initial plan determination . (1) Statement of rule . A Plan Sponsor of an individually designed plan may submit the plan for an initial plan determination on a Form 5300 unless the plan previously had been filed for a determination letter on a Form 5300 and had been issued a determination letter as an individually designed plan. For purposes of the preceding sentence, a plan that had been issued a determination letter as an individually designed plan includes a pre-approved plan that was treated as an individually designed plan under section 8.06 of Rev. Proc. 2017-41 or section 9.05 of Rev. Proc. 2021-37, as applicable, at the time the determination letter was issued with respect to the plan. ¹⁴

(2) Examples . Examples 1 through 4 address whether an initial plan determination has been made with respect to a plan.

(a) Example 1 : Determination letter issued with respect to individually designed plan as a result of Form 5300 filing . Plan Sponsor A adopted Plan W, an individually designed plan, in 2017. Plan Sponsor A submitted a determination letter application on Form 5300 with respect to Plan W in 2019. A determination letter previously had not been issued with respect to Plan W. A favorable determination letter was issued with respect to Plan W in 2020. Because a determination letter was issued as a result of Plan Sponsor A’s filing of a determination letter application on Form 5300 with respect to individually designed Plan W, an initial plan determination letter is considered to have been issued with respect to the plan. Accordingly, Plan Sponsor A is not eligible to submit a future determination letter application for an initial plan determination with respect to Plan W on a Form 5300.

(b) Example 2 : Determination letter issued with respect to pre-approved plan as a result of Form 5307 filing . Plan Sponsor B adopted Plan X, an individually designed plan, in 2015. In 2017, Plan Sponsor B amended Plan X by adopting a pre‑approved plan. A determination letter had not been issued with respect to Plan X while the plan was individually designed; however, in 2017, after amending the plan to become a pre-approved plan, Plan Sponsor B submitted a determination letter application for the plan on a Form 5307 and received a favorable determination letter. Because the determination letter issued with respect to Plan X was issued as a result of Plan Sponsor B’s filing of a determination letter application on Form 5307 with respect to a pre-approved plan, an initial plan determination is not considered to have been issued with respect to Plan X. Accordingly, Plan Sponsor B is eligible to submit a future determination letter application for an initial

plan determination with respect to Plan X on a Form 5300. (c) Example 3 : Determination letter issued with respect to pre-approved plan as a result of leased employee determination . Plan Y is a nonstandardized qualified defined contribution pre-approved plan. Plan Sponsor C has continuously administered Plan Y as a pre-approved plan from the date of its establishment in 2005. A determination letter previously has not been issued with respect to Plan Y. Plan Sponsor C is otherwise eligible to submit a determination letter application. In 2022, Plan Sponsor C submitted a determination letter application and included a request for a ruling on the status of leased employees with respect to Plan Y. As required by sections 12.03(3)(a) and 17.03 of Rev. Proc. 2022-4 (updated annually), Plan Sponsor C submitted the application on a Form 5300. Because Plan Y is a pre-approved plan, even though a determination letter was issued as a result of Plan Sponsor C’s filing of a determination letter application on Form 5300, an initial plan determination letter is not considered to have been issued with respect to Plan Y. Accordingly, Plan Sponsor C is eligible to submit a future determination letter application for an initial plan determination with respect to Plan Y on a Form 5300.

(d) Example 4 : Determination letter issued with respect to pre-approved plan treated as individu- ally designed plan . Plan Sponsor D adopted Plan Z, a nonstandardized qualified defined contribution pre-approved plan, in 2019. In 2021, Plan Sponsor D made several amendments to Plan Z and submitted a determination letter application on Form 5307 with respect to the plan, consistent with the requirements of Rev. Proc. 2017-41. In connection with its review of Plan Z, the IRS informed Plan Sponsor D that (1) due to the nature and extent of the amendments made to the plan, Plan Z would, pursuant to section 8.06 of Rev. Proc. 2017-41, be considered an individually designed plan, and (2) in order to request a determination letter with respect to the plan, Plan Sponsor D would need to file a Form 5300. Accordingly, Plan Sponsor D resubmitted Plan Z as an individually designed plan and requested a determination letter on a Form 5300. A favorable determination letter was issued with respect to the plan. Because Plan Z was considered an individually designed plan when a determination letter was issued with respect to the plan, the determination letter is considered an initial plan determination. Accordingly, Plan Sponsor D is not eligible to submit a future determination letter application for an initial plan determination with respect to Plan Z on a Form 5300.

.03 Timing of submission for section 403(b) plan initial plan determination . A Plan Sponsor that is eligible to submit a section 403(b) individually designed plan for an initial plan determination on a Form 5300 must submit the determination letter application in accordance with the schedule set forth in section 12.01.

13 The Operational Compliance List can be found on the IRS website at https://www.irs.gov/retirement-plans/operational-compliance-list.

14 Rev. Proc. 2017-41 sets forth the procedures for issuing opinion letters regarding the qualification in form of pre-approved plans under sections 401, 403(a), and 4975. Rev. Proc. 2021-37 sets forth the procedures for issuing opinion letters regarding the satisfaction in form of section 403(b) pre-approved plans with respect to the Section 403(b) Requirements. The Treasury Department and the IRS anticipate updating these revenue procedures in future guidance.

Bulletin No. 2022–47 493 November 21, 2022

.04 Determination upon plan termina- tion . A Plan Sponsor of an individually designed plan may submit a determination letter application for a determination upon plan termination on a Form 5310 ( Appli- cation for Determination for Terminating Plan ) if the application is filed in connection with plan termination. An application is deemed to be filed in connection with plan termination if it is filed no later than the later of:

(1) one year from the effective date of the termination, or

(2) one year from the date on which the action terminating the plan is taken.

However, in no event may the application be filed later than 12 months from the date of distribution of substantially all plan assets in connection with the plan termination.

.05 Merged Plans . A Plan Sponsor of a qualified individually designed plan may submit a determination letter application for a determination with respect to a Merged Plan on a Form 5300 if the following requirements are satisfied: ¹⁵

(1) The Date of the Plan Merger occurs no later than the last day of the first plan year that begins after the plan year that includes the Date of a Corporate Merger, Acquisition, or Other Similar Business Transaction between Unrelated Entities, and

(2) A determination letter application for the Merged Plan is submitted within the Merged Plan submission period. The Merged Plan submission period is the period beginning on the Date of the Plan Merger and ending on the last day of the first plan year of the Merged Plan that begins after the Date of the Plan Merger. ¹⁶

.06 Other circumstances . Consideration will be given annually to whether a Plan Sponsor may submit a determination letter application in specified circumstances other than for an initial plan determination, for a determination upon plan termination, and, in the case of qualified plans, for a determination with respect to

Merged Plans. Circumstances that will be considered when evaluating whether to accept determination letter applications for certain amended plans or types of amendments in plans in certain future years, include, for example, significant law changes, new approaches to plan design, and the inability of certain types of plans to convert to pre-approved plan documents. In addition, the IRS’s current case load and resources available to process determination letter applications will be significant factors in deciding if and when to consider certain amended plans or types of amendments in plans under the determination letter program. Taking into account comments already received and based on an analysis of the factors listed in this section 9.06, including the IRS’s current resources and case load, the IRS, during calendar year 2023, will accept determination letter applications only for individually designed qualified and section 403(b) plans for an initial plan determination and for a determination upon plan termination, and, with respect to qualified plans, for a determination with respect to individually designed Merged Plans. In section 16, the Treasury Department and the IRS request comments on the additional situations in which the submission of a determination letter application may be appropriate. The Treasury Department and the IRS intend to request, on a periodic basis, additional comments relating to the expansion of the determination letter program. Additional situations in which Plan Sponsors will be permitted to request determination letters will be announced in guidance published in the IRB.