SECTION 12. WHEN

MAY AN ADOPTER OF A PRE-APPROVED PLAN (STANDARDIZED OR NONSTANDARDIZED) SUBMIT A DETERMINATION LETTER APPLICATION?

Eligibility to apply for a determination letter for a qualified pre-approved plan under Rev. Proc. 2017-41

.05 EP Determinations will consider § 414(x) in issuing determination letters for individually designed plans that consist of a defined benefit plan and a qualified cash or deferred arrangement (subject to the eligibility requirements in section 11.01 of this revenue procedure). A § 414(x) plan sponsor must submit two Forms 5300 and two applicable user fees.

.01 Rev. Proc. 2017-41 ³ is applicable to providers of pre-approved plans that submit requests for opinion letters with respect to the third six-year remedial amendment cycle (and subsequent cycles). Under Rev. Proc. 2017-41, a pre-approved plan is either a standardized or a nonstandardized plan. This section 12 generally provides guidance on the eligibility of an adopting employer of a pre-approved plan that received an opinion letter, pursuant to Rev. Proc. 2017-41, to submit a determination letter application with regard to that plan. The adoption period for defined benefit pre-approved plans, and the ability for plan sponsors to apply for a determination letter (on Form

3 The application of this section is limited to applications filed on Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans, and Form 5300, Application for Determination for Employee Benefit Plan. For procedures for filing a request for a determination on plan termination, see sections 6 and 15 of this revenue procedure.

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Determination letter applications on Form 5307

Determination letter applications on Form 5300

5300 or 5307) with respect to the third six-year remedial amendment cycle, is expected to begin in 2023, and will be announced in future guidance.

.02

(1) Except as provided in section 12.02(3) of this revenue procedure, an adopting employer of a nonstandardized pre-approved plan that has made modifications to the terms of the preapproved plan that are not extensive, or an adopting employer of any pre-approved plan (either standardized or nonstandardized) that amends its pre-approved plan solely to add language to satisfy the requirements of §§ 415 and 416 due to the required aggregation of plans, may file for a determination letter using a Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans.

(2) An adopting employer eligible to file for a determination letter on Form 5307 may file on a Form 5307 regardless of whether a prior favorable determination letter has been issued with respect to the plan.

See section 13 of this revenue procedure, which sets forth the procedures for adopting employers of pre-approved plans requesting determination letters on Form 5307.

(3) Determination letter requests for the following plans must be filed on Form 5300, Application for Determination for Employee Benefit Plan, regardless of whether they are otherwise described in section 12.02(1) of this revenue procedure:

(i) Any request with respect to a multiple employer qualified plan;

(ii) A request for a nonstandardized pension plan that is not a governmental plan (within the meaning of § 414(d)) in which the normal retirement age is lower than the age 62 safe harbor in § 1.401(a)-1(b)(2), that requests reliance on whether the plan satisfies § 1.401(a)-1(b)(2);

(iii) A request for a nonstandardized pension plan that is a governmental plan (within the meaning of § 414(d)) in which the normal retirement age does not satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations, that requests reliance on whether the plan satisfies § 1.401(a)-1(b)(2) of the proposed regulations; and

(iv) A request for a nonstandardized plan regarding a partial termination.

.03 (1) The following adopting employers may file on Form 5300, Application for Determination for Employee Benefit Plan for an initial plan determination under criteria described in section 9.02(1) of Rev. Proc. 2022-40, including the criteria that the plan previously had not been filed for a determination letter on a Form 5300 and had not been issued a determination letter as an individually designed plan:

(a) An adopting employer (or, in the case of a multiple employer qualified plan, the controlling member (an adopting employer sponsoring a qualified plan that submits the application as the lead employer of the multiple employer plan)) that makes any modification to a standardized plan. Note: Pursuant to the circumstances described in section 8.06 of Rev. Proc. 2017-41 and 8.05 of Rev. Proc. 2021-37, the plan of an adopting employer of a standardized plan that makes any change to the plan is considered to be an individually designed plan and will be reviewed on the basis of the applicable Required Amendments List. An amendment to add overriding language

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necessary to satisfy § 415 or 416 because of the required aggregation of multiple plans will not cause a plan to fail to be identical to a pre-approved plan. See section 12.04(3) of this revenue procedure regarding the scope of review of a plan.

(b) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) that makes extensive modifications to a nonstandardized plan (as set forth in section 8.06 of Rev. Proc. 2017-41 or section 8.05 of Rev. Proc. 2021-37, as applicable);

(c) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a pre-approved pension plan that is not a governmental plan (within the meaning of § 414(d)) in which the normal retirement age under the plan is lower than the age 62 safe harbor, requesting a determination letter, including, but not limited to, whether the plan satisfies § 1.401(a)-1(b)(2); and

(d) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a pre-approved pension plan that is a governmental plan (within the meaning of § 414(d)) in which the normal retirement age does not satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations, requesting a determination letter, including, but not limited to, whether the plan satisfies § 1.401(a)-1(b)(2) of the proposed regulations.

(2) The following adopting employers, or controlling members, as applicable, may file on Form 5300, regardless of whether a favorable determination letter has been issued with respect to the plan:

(a) The controlling member of a nonstandardized multiple employer qualified plan that makes modifications to the nonstandardized multiple employer plan that are not extensive;

(b) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a pre-approved pension plan that is not a governmental plan (within the meaning of § 414(d)), that files a determination letter request that is limited to a determination as to whether a plan’s normal retirement age that is lower than the age 62 safe harbor in § 1.401(a)-1(b)(2) satisfies the requirements of § 1.401(a)-1(b)(2); and

(c) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a pre-approved pension plan that is a governmental plan (within the meaning of § 414(d)) with a normal retirement age that does not satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations, that files a determination letter request that is limited to a determination as to whether a plan’s normal retirement age satisfies the requirements of § 1.401(a)-1(b)(2) of the proposed regulations.

An adopting employer that submits an application for a determination letter for a pre-approved plan for one or more of the reasons described in this section 12.03(2)) must identify the applicable reason(s) in a cover letter to the application and include a copy of the opinion letter.

(3) Special rules. The following special rules apply with regard to the determination letter requests for qualified plans described below:

(a) Leased employees. An adopting employer of a standardized or nonstandardized preapproved qualified plan (or, if the plan is a multiple employer plan, the controlling member) that is eligible to submit a determination letter on Form 5300 in accordance with this section and Rev.

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Proc. 2022-40 may also request a determination regarding leased employee status under § 414(n) (see section 17.05 of this revenue procedure).

(b) Partial terminations. An adopting employer of a standardized or nonstandardized preapproved qualified plan (or, if the plan is a multiple employer plan, the controlling member) that requests a determination regarding partial termination (see section 9.09 of this revenue procedure) must file using Form 5300. If the request is limited to whether a partial termination has occurred, the employer may file on Form 5300 at any time, regardless of whether the employer is otherwise eligible to submit a determination letter application. If the request is not limited to whether a partial termination has occurred, the employer must be otherwise eligible to submit a determination letter application.

See section 18 of this revenue procedure for procedures for requesting § 401(h) and § 420 determination letters. See section 8.05 of Rev. Proc. 2017-41 regarding the effect of employer amendments on the six-year remedial amendment cycle.

Scope of review .04

(1) Determination letter applications filed on Form 5307 as described in section 12.02 of this revenue procedure will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan.

(2) Determination letter applications filed with respect to a nonstandardized plan on Form 5300, as described in section 12.03 of this revenue procedure, will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan.

(3) Except as provided in section 12.04(4) of this revenue procedure, determination letter applications filed with respect to a standardized plan on Form 5300, as described in section 12.03 of this revenue procedure, will be reviewed based on the Required Amendments List that was issued during the second calendar year preceding the submission of the determination letter application.

(4) Applications filed with respect to a standardized plan requesting a determination solely with respect to:

(i) overriding plan language necessary to coordinate the applications of the limitations of § 415 or the requirements of § 416 because the employer maintains multiple plans;

(ii) a standardized pension plan (that is not a governmental plan within the meaning of § 414(d)) in which the normal retirement age under the plan is lower than age 62, limited to requesting reliance on whether the plan satisfies the requirements of § 1.401(a)-1(b)(2); or

(iii) a standardized pension plan that is a governmental plan (within the meaning of § 414(d)) with a normal retirement age that does not satisfy any of the safe harbors described in § 1.401(a)1(b)(2)(v) of the proposed regulations, limited to requesting reliance on whether the plan satisfies the requirements of § 1.401(a)-1(b)(2) of the proposed regulations; will be reviewed on the basis of the Cumulative List that was used to review the underlying pre-approved plan.

Submission period for pre-approved plans

.05 An adopting employer must submit an application for a determination letter (whether on a Form 5300 or Form 5307) during the approximately two-year period in which employers may

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Reliance equivalent to determination letter