SECTION 6. WHAT — Internal Revenue Bulletin 2023-1

ARE THE GENERAL INSTRUCTIONS FOR REQUESTING LETTER RULINGS AND DETERMINATION LETTERS FROM EMPLOYEE PLANS RULINGS AND AGREEMENTS?

In general .01 This section explains the general instructions for requesting letter rulings and determination letters, as applicable to the particular type of request, on all matters within the jurisdiction of Employee Plans Rulings and Agreements. Requests for letter rulings and determination letters require the payment of the applicable user fee discussed in section 6.02(15), section 30, and Appendix A of this revenue procedure. Specific and additional instructions also apply to requests for letter rulings and determination letters on certain matters.

All requests must be submitted in English. All documents submitted in support of such requests must be in English or accompanied by an English translation.

Certain information required in requests for letter rulings or determination letters, as applicable

.02

Facts (1) Complete statement of facts and other information. Each request for a letter ruling or determination letter must set forth a complete statement of all facts relating to the transaction or determination letter request. These facts include —

(a) names, addresses, telephone numbers, and taxpayer identification numbers of all interested parties (the term “all interested parties” does not mean all shareholders of a widely held corporation requesting a letter ruling relating to a reorganization, or all employees if a large number may be involved);

(b) a complete statement of the business reasons for the transaction; and

The Service usually will not rule on only one step of a larger integrated transaction described in a letter ruling request. See section 25.04 of this revenue procedure. However, if such a letter ruling is requested, the facts and circumstances relating to the entire transaction, including true copies of relevant documents, etc., must be submitted.

Documents (2) Copies of all contracts, wills, deeds, agreements, instruments, plan documents, and other documents. All documents that are pertinent to the transaction (including contracts, wills, deeds, agreements, instruments, plan documents, trust documents, and proposed disclaimers) must be submitted with the request.

Original documents should not be submitted because they become part of the Service’s file and will not be returned to the taxpayer. Instead, true copies of all such documents should be

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submitted with the request. Each attachment to the request should be labeled alphabetically and attached to the request in alphabetical order.

(a) Documents for determination letter submissions on Form 5307 (i) Before June 1, 2023 : Applicants must submit Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans, submissions on paper. Applicants have the option of submitting the user fee electronically on www.pay.gov, as described in section 30.07(1) of this revenue procedure, and should attach the payment confirmation to the paper Form 8717, User Fee for Employee Plan Determination Letter Request.

(ii) On and after June 1, 2023, and before July 1, 2023 : Applicants may submit Form 5307 either on paper or electronically on www.pay.gov. If Form 5307 is submitted on paper, applicants still have the option of submitting the user fee electronically on www.pay.gov, as described in section 30.07(1) of this revenue procedure, and should attach the payment confirmation to the paper Form 8717. However, if Form 5307 is submitted electronically on www.pay.gov will require the user fee and documents to be submitted electronically at the time the form is being submitted.

Note: When submitting the Form 5307 electronically DO NOT submit the user fee on www. pay.gov using the Form 8717. When utilizing www.pay.gov, if you receive an email that the payment was dishonored, you must resubmit the application package along with the new user fee. When resubmitting, include the email received regarding the dishonored payment with the submission package.

(iii) On or after July 1, 2023 : Paper submissions of Form 5307 will no longer be accepted. As of July 1, 2023, applicants must submit the Form 5307 application electronically on www.pay.gov and may not submit any documents on paper, including the Form 8717. Any Form 5307 application submitted on paper on or after July 1, 2023, will be returned to the applicant, including any paper checks.

In order to more efficiently process determination letter applications, the following documents (as applicable to a particular submission) should be submitted in the following order:

Form 2848, Power of Attorney and Declaration of Representative or Form 8821, Tax

Information Authorization

Form 8717, User Fee for Employee Plan Determination Letter Request (for paper

submissions only)

Prior Determination Letter
Opinion/Advisory Letter
Form 5307 (must be completed on www.pay.gov on or after July 1, 2023)
Cover Letter
Amendments (any prior plan documents being submitted along with any applicable

amendments)

Current Plan Document
Adoption Agreement
Other Applicable Documents (any additional documents not listed above)

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(b) Determination letter submissions on Form 5300

(c) Determination letter submissions on Form 5310

(d) Documents for determination letter submissions on Form 5300 and Form 5310

For paper submissions, the most recent version of any applicable form should be submitted. Documents submitted should not be stapled or bound. See also the instructions to the form applicable to a particular submission for any additional submission requirements. For additional information relating to a determination letter request submitted by an adopting employer of a preapproved plan, see sections 12 and 13 of this revenue procedure.

For electronic submissions, the size of the submissions made through www.pay.gov may be up to 15MB. If the submission is over the 15MB threshold, additional documents may be faxed to 844-255-4818. Be sure the www.pay.gov tracking ID number is listed on the fax coversheet along with the EIN, applicant name, and plan name. Faxes sent to the Service are converted into attachments delivered via email to an Outlook mailbox. If the size of the fax creates an attachment that exceeds 150MB it will not be delivered due to network protections. No notification is issued if it occurs. To avoid the problem, split up a large fax by sending separate, smaller faxes. Fax the EP Customer Service line at 855-224-1311 if you want the Service to confirm your fax or faxes have been delivered.

Paper submissions of Form 5300, Application for Determination for Employee Benefit Plans are not accepted. Applicants must submit the Form 5300 application electronically on www.pay.gov and may not submit any documents on paper, including the Form 8717. Any Form 5300 application submitted on paper will be returned to the applicant, including any paper checks. Beginning June 1, 2023, Employee Plans Rulings and Agreements will accept Form 5300 applications for § 403(b) individually designed plans. See section 1.03(1) for eligibility.

Paper submissions of Form 5310, Application for Determination for Terminating Plan, are not accepted. Applicants must submit the Form 5310 application electronically on www.pay.gov and may not submit any documents on paper, including the Form 8717. Any Form 5310 application submitted on paper will be returned to the applicant, including any paper checks.

In order to more efficiently process determination letter applications, when submitting Form 5300 or Form 5310 on www.pay.gov, the following documents (as applicable to a particular submission) should be included in the attachment:

Form 2848, Power of Attorney and Declaration of Representative or Form 8821, Tax

Information Authorization

Prior Determination Letter
Opinion/Advisory Letter
Cover Letter
Amendments (any prior plan documents being submitted along with any applicable

amendments)

Current Plan Document
Adoption Agreement
Other Applicable Documents (any additional documents not listed above)

Follow the directions provided on www.pay.gov. Note: When utilizing www.pay.gov, if you receive an email that the payment was dishonored, you must resubmit the application package along with the new user fee. When resubmitting, include the email received regarding the dishonored payment with the submission package. Do not use Form 8717 to submit the user fee.

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For additional information relating to a determination letter request for a plan termination, see section 15 of this revenue procedure.

The size of electronic submissions made on www.pay.gov may be up to 15MB. If your submission is over the 15MB threshold, additional documents may be faxed to 844-255-4818. The www.pay. gov tracking ID number must be listed on the fax coversheet along with the EIN, applicant’s name, and plan name. Faxes sent to the Service are converted into attachments delivered via email to an Outlook mailbox. If the size of the fax creates an attachment that exceeds 150MB it will not be delivered due to network protections. No notification is issued if it occurs. To avoid the problem, split up a large fax by sending separate, smaller faxes. Fax the EP Customer Service line at 855-224-1311 if you want the Service to confirm your fax or faxes have been delivered.

See also the instructions to the form applicable to a particular submission for any additional submission requirements. For additional information relating to a determination letter request submitted by an adopting employer of a pre-approved plan, see sections 12 and 13 of this revenue procedure.

Analysis of material facts (3) Analysis of material facts. All material facts in documents must be included, rather than merely incorporated by reference, in the taxpayer’s initial request or in supplemental letters. These facts must be accompanied by an analysis of their bearing on the issue or issues, specifying the legal provisions that apply.

Same issue in an earlier return

(4) Statement regarding whether same issue is in an earlier return. The request must state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives, the same issue is in an earlier return of the taxpayer (or in a return for any year of a related taxpayer within the meaning of § 267 or of a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504 or of a predecessor of the taxpayer).

If the statement is affirmative, it must specify whether the issue—

(a) is being examined by the Service;

(b) has been examined and, if so, whether or not the statutory period of limitations has expired for either assessing tax or filing a claim for refund or credit of tax;

(c) has been examined and, if so, whether or not a closing agreement covering the issue or liability has been entered into by the Service;

(d) is being considered by the Independent Office of Appeals in connection with a return from an earlier period;

(e) has been considered by the Independent Office of Appeals in connection with a return from an earlier period and, if so, whether or not the statutory period of limitations has expired for either assessing tax or filing a claim for refund or credit of tax;

(f) has been considered by the Independent Office of Appeals in connection with a return from an earlier period and whether or not a closing agreement covering the issue or liability has been entered into by the Independent Office of Appeals;

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Same or similar issue previously submitted or currently pending

Statement of authorities supporting taxpayer’s views

Statement of authorities contrary to taxpayer’s views

(g) is pending in litigation in a case involving the taxpayer or a related taxpayer; or

(h) is being considered by the Pension Benefit Guaranty Corporation (PBGC) or the Department of Labor (DOL).

(5) Statement regarding whether same or similar issue was previously ruled on or requested, or is currently pending. The request must also state whether, to the best of the knowledge of both the taxpayer and the taxpayer’s representatives—

(a) Employee Plans Rulings and Agreements previously ruled on the same or a similar issue for the taxpayer (or a related taxpayer within the meaning of § 267, or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504 or a predecessor);

(b) the taxpayer, a related taxpayer, or a predecessor previously submitted the same or a similar issue to Employee Plans Rulings and Agreements but withdrew the request before a letter ruling or determination letter was issued;

(c) the taxpayer, a related taxpayer, or a predecessor previously submitted a request involving the same or a similar issue that is currently pending with Employee Plans Rulings and Agreements or the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes); or

(d) at the same time as this request, the taxpayer or a related taxpayer is presently submitting another request involving the same or a similar issue to Employee Plans Rulings and Agreements or the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes).

If the statement is affirmative for (a), (b), (c), or (d) of this section 6.02(5), the statement must give the date the request was submitted, the date the request was withdrawn or ruled on, if applicable, and other details of the consideration of the issue by Employee Plans Rulings and Agreements or the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes).

(6) Statement of supporting authorities. If the taxpayer advocates a particular conclusion, an explanation of the grounds for that conclusion and the relevant authorities to support it must also be included. Even if not advocating a particular tax treatment of a proposed transaction, the taxpayer must still furnish views on the tax results of the proposed transaction and a statement of relevant authorities to support those views.

In all events, the request must include a statement of whether the law in connection with the request is uncertain and whether and how the issue is addressed by relevant authorities.

(7) Statement of contrary authorities. The taxpayer is also encouraged to inform Employee Plans Rulings and Agreements about, and discuss the implications of, any authority believed to be contrary to the conclusion requested, such as legislation (or pending legislation), tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, or announcements. If the taxpayer determines that there are no contrary authorities, a statement in the request to this effect would be helpful. If the taxpayer does not furnish either contrary authorities or a statement that none exists, Employee Plans Rulings and Agreements, in complex cases or those presenting difficult or novel issues, may request submission of contrary authorities or a statement that none

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Statement identifying pending legislation

Deletions statement required by § 6110 for private letter rulings and § 403(b) plan determination letters

exists. Failure to comply with this request may result in Employee Plans Rulings and Agreements refusing to issue a letter ruling or determination letter.

Identifying and discussing contrary authorities generally will enable Employee Plans Rulings and Agreements personnel to understand the issue and relevant authorities more quickly. In that case, when Employee Plans Rulings and Agreements personnel receive the request, they will have before them the taxpayer’s thinking on the effect and applicability of contrary authorities. This information should lead to earlier action by Employee Plans Rulings and Agreements. If the taxpayer does not disclose and distinguish significant contrary authorities, Employee Plans Rulings and Agreements may need to request additional information, which will delay action on the request and may result in the application being returned due to being an incomplete submission.

(8) Statement identifying pending legislation. At the time of filing the request, the taxpayer must identify any pending legislation that may affect the proposed transaction. In addition, the taxpayer must notify Employee Plans Rulings and Agreements if applicable legislation is introduced after the request is filed but before a letter ruling or determination letter is issued.

(9) Statement identifying information to be deleted from copy of letter ruling and § 403(b) plan determination letters for public inspection. The text of private letter rulings and determination letters for § 403(b) plans is open to public inspection under § 6110. The Service makes deletions from the text before it is made available for inspection. To help the Service make the deletions required by § 6110(c), a request for a letter ruling or a determination letter for a § 403(b) plan must be accompanied by a statement indicating the deletions desired (“deletions statement”). If the deletions statement is not submitted with the request, a Service representative will tell the taxpayer that the request will be closed if the Service does not receive the deletions statement within 30 calendar days. See section 27.05 of this revenue procedure.

(a) Format of deletions statement. A taxpayer who wants only names, addresses, and identifying numbers to be deleted should state this in the deletions statement. If the taxpayer wants more information deleted, the deletions statement must be accompanied by a copy of the request and supporting documents on which the taxpayer should bracket the material to be deleted. The deletions statement must indicate the statutory basis under § 6110(c) for each proposed deletion.

If the taxpayer decides to ask for additional deletions before the letter ruling or determination letter is issued, additional deletions statements may be submitted.

(b) Location of deletions statement. The deletions statement must not appear in the request, but instead must be made in a separate document and placed on top of the request for a letter ruling or determination letter.

(c) Signature. The deletions statement must be signed and dated by the taxpayer or the taxpayer’s authorized representative. A stamped signature or faxed signature is not permitted.

(d) Additional information. The taxpayer should follow the same procedures above to propose deletions from any additional information submitted after the initial request. An additional deletions statement, however, is not required with each submission of additional information if the taxpayer’s initial deletions statement requests that only names, addresses, and identifying numbers be deleted, and the taxpayer wants only the same information deleted from the additional information.

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(e) Taxpayer may protest deletions not made. After receiving from the Service the notice under § 6110(f)(1) of intention to disclose the letter ruling or determination letter (including a copy of the version proposed to be open to public inspection and notation of third-party communications under § 6110(d)), the taxpayer may protest the disclosure of certain information in the letter ruling or determination letter. The taxpayer must send a written statement within 20 calendar days to the Service office indicated on the notice of intention to disclose. The statement must identify those deletions that the Service has not made and that the taxpayer believes should have been made. The taxpayer must also submit a copy of the version of the letter ruling or determination letter and bracket the deletions proposed that have not been made by the Service. Generally, the Service will not consider deleting any material that the taxpayer did not propose to be deleted before the letter ruling or determination letter was issued.

Within 20 calendar days after the Service receives the response to the notice under § 6110(f) (1), the Service will mail to the taxpayer its final administrative conclusion regarding the deletions to be made. The taxpayer does not have the right to a conference to resolve any disagreements concerning material to be deleted from the text of the letter ruling or determination letter. However, these matters may be taken up at any conference that is otherwise scheduled regarding the request.

(f) Taxpayer may request delay of public inspection. After receiving the notice under § 6110(f)(1) of intention to disclose, but within 60 calendar days after the date of notice, the taxpayer may send a request for delay of public inspection under either § 6110(g)(3) or (4). The request for delay must be sent to the Service office indicated on the notice of intention to disclose. A request for delay under § 6110(g)(3) must contain the date on which it is expected that the underlying transaction will be completed. The request for delay under § 6110(g)(4) must contain a statement from which the Commissioner of Internal Revenue may determine that there are good reasons for the delay.

(g) Section 6110 does not apply to certain matters. Section 6110(l)(1) states that § 6110 disclosure provisions do not apply to any matter to which § 6104 applies. Therefore, letter rulings, determination letters with respect to qualified plans, and related background file documents dealing with the following matters (covered by § 6104) are not subject to § 6110 disclosure provisions—

(i) An application for the qualification of a pension, profit-sharing or stock bonus plan, or an individual retirement account described in § 408 or § 408A, or any application for exemption under § 501(a) by an organization forming part of such a plan or an account;

(ii) Any document issued by the Service in which the qualification or exempt status of a plan or account is granted, denied, or revoked;

(iii) Any application filed and any document issued by the Service with respect to the qualification or status of pre-approved plans; and

(iv) The portion of any document issued by the Service with respect to the qualification or exempt status of a plan or account of a proposed transaction by such plan or account.

Signature on request (10) Signature by taxpayer or authorized representative. The request for a letter ruling or determination letter must be signed and dated by the taxpayer or the taxpayer’s authorized representative. For paper applications, neither a stamped signature nor a faxed signature is permitted.

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Authorized representatives (11) Authorized representatives. To sign the request or to appear before the Service in connection with the request, the representative must be one of the following:

Attorney (a) An attorney who is a member in good standing of the bar of the highest court of any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as an attorney and current authorization to represent the taxpayer.

Certified public accountant (b) A certified public accountant who is qualified to practice in any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as a certified public accountant and current authorization to represent the taxpayer.

Enrolled agent (c) An enrolled agent is a person, other than an attorney or certified public accountant that is currently enrolled to practice before the Service and is not currently under suspension or disbarment from practice before the Service, including a person enrolled to practice only for employee plans matters. He or she must file a written declaration with the Service showing current enrollment and authorization to represent the taxpayer. Either the enrollment number or the expiration date of the enrollment card must be included in the declaration. For the rules on who may practice before the Service, see Treasury Department Circular No. 230.

Enrolled actuary (d) An enrolled actuary is a person enrolled as an actuary by the Joint Board for the Enrollment of Actuaries pursuant to 29 U.S.C. 1242 and qualified to practice in any state, possession, territory, commonwealth, or the District of Columbia and who is not currently under suspension or disbarment from practice before the Service. He or she must file a written declaration with the Service showing current qualification as an enrolled actuary and current authorization to represent the taxpayer. Practice as an enrolled actuary is limited to representation with respect to issues involving the following statutory provisions: §§ 401, 403(a), 404, 412, 413, 414, 419, 419A, 420, 4971, 4972, 4976, 4980, 6057, 6058, 6059, 6652(d), 6652(e), 6692, 7805(b), former § 405, and 29 U.S.C. 1083.

Enrolled retirement plan agent

A person with a “Letter of Authorization”

(e) An enrolled retirement plan agent (ERPA) is an individual who is authorized to practice before the Service under the ERPA program. The ERPA program is established under Treasury Department Circular No. 230 and is administered by the Office of Professional Responsibility.

Practice as an ERPA is limited to representation with respect to issues involving the Employee Plans determination letter program, EPCRS, and the pre-approved programs. In addition, ERPAs are generally permitted to represent taxpayers with respect to Form 5300 series and Form 5500 filings, but not with respect to actuarial forms or schedules. For additional information on ERPAs, see § 10.4, 10.5, and 10.6 of Treasury Department Circular No. 230.

(f) Any other person, including a foreign representative, who has received a “Letter of Authorization” from the Director, Office of Professional Responsibility under section 10.7(d) of Treasury Department Circular No. 230. A person may make a written request for a “Letter of Authorization” to: Office of Director, Office of Professional Responsibility, Internal Revenue Service, 1111 Constitution Avenue, N.W., Washington, DC 20224. Section 10.7(d) of Treasury Department Circular No. 230 authorizes the Commissioner of Internal Revenue to allow an individual who is not otherwise eligible to practice before the Service to represent another person in a particular matter. For additional information, see section 6.02(12) of this revenue procedure.

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Employee, general partner, bona fide officer, administrator, trustee, etc.

(g) The above requirements do not apply to a regular full-time employee representing his or her employer; to a general partner representing his or her partnership; to a bona fide officer representing his or her corporation, association, or organized group; to a trustee, receiver, guardian, personal representative, administrator, or executor representing a trust, receivership, guardianship, or estate; or to an individual representing his or her immediate family. A preparer of a return (other than a person referred to in paragraph (a), (b), (c), (d), or (e) of this section 6.02(11)) who is not a full-time employee, a general partner, a bona fide officer, an administrator, a trustee, etc., or an individual representing his or her immediate family may not represent a taxpayer in connection with a letter ruling, determination letter, or technical advice request. See section 10.7(c) of Treasury Department Circular No. 230.

Foreign representative (h) A foreign representative (other than a person referred to in paragraph (a), (b), (c), (d), or (e) of this section 6.02(11)) is not authorized to practice before the Service and, therefore, may not represent a taxpayer in a request for a letter ruling or a determination letter. In this situation, the nonresident alien or foreign entity must submit the request for a letter ruling or a determination letter on the individual’s or entity’s own behalf or through a person referred to in paragraph (a), (b), (c), (d), or (e) of this section 6.02(11).

Power of attorney and declaration of representative

Compliance with Treasury Department Circular No. 230

Penalties of perjury statement

(12) Power of attorney and declaration of representative. Any authorized representative, whether or not enrolled to practice, must also comply with the conference and practice requirements of the Statement of Procedural Rules (26 C.F.R. § 601.501-601.509), which provide the rules for representing a taxpayer before the Service. An unenrolled preparer must file a Form 8821, Tax Information Authorization, for certain limited employee plans matters.

Form 2848 , Power of Attorney and Declaration of Representative, must be used to provide the representative’s authorization (Part I of Form 2848, Power of Attorney) and the representative’s qualification (Part II of Form 2848, Declaration of Representative). The name of the person signing Part I of Form 2848 should also be typed or printed on this form. A stamped signature is not permitted. An original, a copy, or a fax of the power of attorney is acceptable so long as its authenticity is not reasonably disputed. For additional information regarding the Form 2848, see section 6.03(2) of this revenue procedure.

(13) Compliance with Treasury Department Circular No. 230. The taxpayer’s authorized representative, whether or not enrolled, must comply with Treasury Department Circular No. 230, which provides the rules for practice before the Service. In those situations in which Employee Plans Rulings and Agreements believes that the taxpayer’s representative is not in compliance with Treasury Department Circular No. 230, Employee Plans Rulings and Agreements will bring the matter to the attention of the Director, Office of Professional Responsibility.

(14) Penalties of perjury statement.

(a) Format of penalties of perjury statement. A request for a letter ruling or determination letter and any change in the request submitted at a later time must be accompanied by the following declaration : “Under penalties of perjury, I declare that I have examined this request, or this modification to the request, including accompanying documents, and, to the best of my knowledge and belief, the request or the modification contains all the relevant facts relating to the request, and such facts are true, correct, and complete.” See section 27.06 of this revenue procedure for the penalties of perjury statement applicable for submissions of additional information.

Applications on www.pay.gov have the following statement: “Under penalties of perjury, I declare that I have examined this determination letter submission, including Form 53XX

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and all accompanying documents, and, to the best of my knowledge and belief, they and the facts presented in support of this application and submission are true, correct, and complete. If the zero dollar user fee is selected, I certify that the application for a determination letter on the qualified status of the plan listed above meets the conditions for exemption from user fees described in section 7528(b)(2)(B) of the Internal Revenue Code. If the reduced fee is selected with respect to an application for a determination letter as to whether a § 403(b) plan meets the requirements of § 403(b), I certify that the application for a determination letter of the plan listed above meets the conditions for a small plan user fee described in Appendix A of Revenue Procedure 2023-4.”

If this is a determination letter submission filed by an authorized representative on behalf of a plan sponsor, as provided in an attached Form 2848, the penalty of perjury statement does not apply (although the penalties of perjury box should still be marked). The plan sponsor must sign a separate penalty of perjury statement and submit the statement as an additional attachment.

(b) Signature by taxpayer. The declaration must be signed and dated by the taxpayer, not the taxpayer’s representative. Neither a stamped signature nor a faxed signature is permitted.

The person who signs for a corporate taxpayer must be an officer of the corporate taxpayer who has personal knowledge of the facts, and whose duties are not limited to obtaining a letter ruling or determination letter from the Service. If the corporate taxpayer is a member of an affiliated group filing consolidated returns, a penalties of perjury statement must also be signed and submitted by an officer of the common parent of the group.

The person signing for a trust, a state law partnership, or a limited liability company must be, respectively, a trustee, general partner, or member-manager who has personal knowledge of the facts.

Applicable user fee (15) Applicable user fee. Section 7528 requires taxpayers to pay user fees for requests for letter rulings, opinion letters, advisory letters, determination letters, and similar requests. Appendix A to this revenue procedure contains the schedule of user fees for each type of request under the jurisdiction of Employee Plans Rulings and Agreements. Section 30 of this revenue procedure provides guidance for applying the user fee requirements. If two or more taxpayers are parties to a transaction and each requests a letter ruling, each taxpayer must satisfy the rules herein and additional user fees may apply. See section 30.04 of this revenue procedure for exemptions from the user fee requirements.

Number of copies of request to be submitted

(16) Number of copies of request to be submitted. Generally, a taxpayer needs to submit only one copy of the request for a letter ruling or determination letter. If, however, more than one issue is presented in a letter ruling request, the taxpayer is encouraged to submit additional copies of the request.

Further, two copies of the request for a letter ruling are required if—

(a) the taxpayer is requesting separate letter rulings on different issues as described in section 6.03(1) of this revenue procedure;

(b) the taxpayer is requesting deletions other than names, addresses, and identifying numbers, as described in section 6.02(9) of this revenue procedure (one copy is the request for the letter ruling and the second copy is the deleted version of such request); or

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Sample of a letter ruling request

(c) the taxpayer is requesting a closing agreement (as defined in section 3.03 of this revenue procedure) on the issue presented.

(17) Sample format for a letter ruling request. To assist a taxpayer or the taxpayer’s representative in preparing a letter ruling request, a sample format for a letter ruling request is provided in Appendix D. This format is not required to be used by the taxpayer or the taxpayer’s representative. If the letter ruling request is not identical or similar to the format in Appendix D, the different format will neither defer consideration of the letter ruling request nor be cause for returning the request to the taxpayer or taxpayer’s representative.

Checklist (18) Checklist for letter ruling requests. Employee Plans Rulings and Agreements will be able to respond more quickly to a taxpayer’s letter ruling request if it is carefully prepared and complete. The checklist in Appendix E of this revenue procedure is designed to assist taxpayers in preparing a request by reminding them of the essential information and documents to be furnished with the request. The checklist in Appendix E must be completed to the extent required by the instructions in the checklist, signed and dated by the taxpayer or the taxpayer’s representative, and placed on top of the letter ruling request. If the checklist in Appendix E is not received, Employee Plans Rulings and Agreements will ask the taxpayer or the taxpayer’s representative to submit the checklist, which may delay action on the letter ruling request. A photocopy of this checklist may be used.

Additional information required in certain circumstances

Multiple issues

.03

(1) To request a separate letter ruling for multiple issues in a single situation. If more than one issue is presented in a request for a letter ruling, Employee Plans Rulings and Agreements generally will issue a single letter ruling covering all the issues. However, if the taxpayer requests a separate letter ruling on any of the issues (because, for example, one letter ruling is needed sooner than another), Employee Plans Rulings and Agreements usually will comply with the request unless it is not feasible or not in the best interests of the Service to do so. A taxpayer who wants a separate letter ruling on multiple issues should make this clear in the request and submit two copies of the request. Additional checklists are solely for the specific issues designated.

In issuing each letter ruling, Employee Plans Rulings and Agreements will state that it has issued a separate letter ruling or that requests for other letter rulings are pending.

Power of attorney (2) Recipient of original letter ruling or determination letter. Employee Plans Rulings and Agreements will send the original of the letter ruling or determination letter to the taxpayer and a copy of the letter ruling or determination letter to the taxpayer’s representative. The letter ruling or determination letter is addressed to the taxpayer. A Form 2848, Power of Attorney and Declaration of Representative must be used to provide the representative’s authorization except in certain employee plans matters. See section 6.02(12) of this revenue procedure.

To have a copy sent to taxpayer’s representative. A copy of the letter ruling or determination letter will be sent to any representative with a check in the box in the name and address block on Form 2848 to indicate the representative is to receive notices and communications. Copies of the letter ruling or determination letter, however, will be sent to no more than two representatives.

Expedited handling (3) To request expedited handling. Employee Plans Rulings and Agreements ordinarily processes requests for letter rulings and determination letters in the order of the date received. Determination letter requests are not eligible for expedited handling. Expedited handling with respect to a letter ruling request means that the request is processed ahead of the regular order.

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Expedited handling is granted only in rare and unusual cases, both out of fairness to other taxpayers and because Employee Plans Rulings and Agreements seeks to process all requests as expeditiously as possible and to give appropriate deference to normal business exigencies in all cases not involving expedited handling.

A taxpayer who has a compelling need to have a letter ruling request processed ahead of the regular order may request expedited handling. This request must explain in detail the need for expedited handling. The request must be made in writing, preferably in a separate letter with, or soon after filing, the request for the letter ruling. If the request is not made in a separate letter, then the letter in which the letter ruling request is made should state, at the top of the first page : “Expedited Handling Is Requested. See page ___ of this letter.”

A request for expedited handling of requests for letter rulings will not be forwarded to the appropriate group for action until the check or money order for the user fee in the correct amount is received.

Whether the request will be granted is within the discretion of Employee Plans Rulings and Agreements. Employee Plans Rulings and Agreements may grant a request if a factor outside a taxpayer’s control creates a real business need to obtain a letter ruling before a certain time in order to avoid serious business consequences. Examples include situations in which a court or governmental agency has imposed a specific deadline for the completion of a transaction, or a transaction must be completed expeditiously to avoid an imminent business emergency (such as the hostile takeover of a corporate taxpayer), provided that the taxpayer can demonstrate that the deadline or business emergency, and the need for expedited handling, resulted from circumstances that could not reasonably have been anticipated or controlled by the taxpayer. To qualify for expedited handling in such situations, the taxpayer must also demonstrate that the taxpayer submitted the request as promptly as possible after becoming aware of the deadline or emergency. The extent to which the letter ruling request complies with all of the applicable requirements of this revenue procedure, and fully and clearly presents the issues, is a factor in determining whether expedited treatment will be granted. If Employee Plans Rulings and Agreements agrees to process a request out of order, it cannot give assurance that any letter ruling will be processed by the time requested. The scheduling of a closing date for a transaction or a meeting of the board of directors or shareholders of a corporation, without regard for the time it may take to obtain a letter ruling, will not be considered a sufficient reason to process a request ahead of its regular order. Also, the possible effect of fluctuation in the market price of stocks on a transaction will not be considered a sufficient reason to process a request out of order.

Because most requests for letter rulings cannot be processed ahead of their regular order, Employee Plans Rulings and Agreements urges all taxpayers to submit their requests well in advance of the contemplated transaction. In addition, in order to facilitate prompt action on letter ruling requests, taxpayers are encouraged to ensure that their initial submissions comply with all of the requirements of this revenue procedure (including the requirements of other applicable guidelines set forth in sections 1.03 and 26.02 of this revenue procedure), and to provide promptly any additional information requested by Employee Plans Rulings and Agreements.

Facsimile transmission (fax) (4) To receive a letter ruling by facsimile transmission (fax). A letter ruling ordinarily is not sent by fax. However, if the taxpayer requests, a copy of a letter ruling may be faxed to the taxpayer or the taxpayer’s authorized representative. A letter ruling, however, is not issued until the ruling is mailed. See § 301.6110–2(h).

A request to fax a copy of the letter ruling to the taxpayer or the taxpayer’s authorized representative must be made in writing, either as part of the original letter ruling request or prior

Bulletin No. 2023–1 189 January 3, 2023

to the approval of the letter ruling. The request must contain the fax number of the taxpayer or the taxpayer’s authorized representative to whom the letter ruling is to be faxed.

Employee Plans Rulings and Agreements will take certain precautions to protect confidential information. For example, Employee Plans Rulings and Agreements will use a cover sheet that identifies the intended recipient of the fax and the number of pages transmitted. The cover sheet, if possible, will not identify the specific taxpayer by name, and it will be the first page covering the letter ruling being faxed.

Requesting a conference (5) To request a conference. A taxpayer who wants to have a conference on the issues involved in a request for a letter ruling should indicate this in writing when, or soon after, filing the request.

Address to send the request .04

The addresses for sending requests are provided in section 31 of this revenue procedure.

Pending letter ruling requests

When to attach letter ruling to return

How to check on status of request

.05

(1) Circumstances under which the taxpayer must notify Employee Plans Rulings and Agreements. The taxpayer must notify Employee Plans Rulings and Agreements if, after the letter ruling request is filed but before a letter ruling is issued, the taxpayer knows that—

(a) an examination of the issue or the identical issue on an earlier year’s return has been started by an Examinations office of the Service;

(b) the issue is being considered by the PBGC or the DOL; or

(2) Taxpayer must notify Employee Plans Rulings and Agreements if a return is filed and must attach request to return. If the taxpayer files a return before a letter ruling is received from Employee Plans Rulings and Agreements concerning the issue, the taxpayer must notify Employee Plans Rulings and Agreements that the return has been filed. The taxpayer must also attach a copy of the letter ruling request to the return to alert the Employee Plans Examinations office and thereby avoid premature Employee Plans Examinations office action on the issue.

.06 If, before filing a return, a taxpayer receives a letter ruling about any transaction that is relevant to the return, the taxpayer must attach a copy of the letter ruling to the return when it is filed.

.07 The taxpayer or the taxpayer’s authorized representative may obtain information regarding the status of a request by calling the person whose name and telephone number are shown on the acknowledgement of receipt of the request.

January 3, 2023 190 Bulletin No. 2023–1