SECTION 14. WHAT ARE

THE DETERMINATION LETTER FILING PROCEDURES FOR MULTIPLE EMPLOYER PLANS (QUALIFIED PLANS ONLY)?

(8) Any other information or material that may be required by EP Determinations. Note: EP Determinations may request proof of provider adoption of interim amendments.

.03 Form 5307 is being updated for the addition of ESOPs to the program. Until the revised Form 5307 is available, ESOP applications submitted on the current Form 5307 should be completed as follows:

• Question 5a should be marked “6 - profit sharing plan;”

• The cover letter should state:

• That the submission is for an ESOP;

• Whether the plan sponsor is an S or C corporation and, if the plan sponsor is an S

corporation, the effective date of the S corporation election;

• Whether there was a change in corporate status (revocation/election from S to C or

from C to S) and, if so, the effective date of such change.

Providing the information above will minimize the need for follow-up correspondence with the Service relating to Service review of applications on the current Form 5307. The request in this section 13.03 is limited to ESOP applications submitted on the current Form 5307.

.04 Deviations from the language of the approved plan will be evaluated based on the extent and complexities of the changes. If the changes are determined to be extensive, EP Determinations will require the applicant to file Form 5300, Application for Determination for Employee Benefit Plan (if the applicant is otherwise eligible to file a Form 5300), and pay the higher user fee. If the changes are too extensive to be compatible with the pre-approved program, the adopting employer’s plan will not be eligible for the pre-approved program. See section 20.03(5) of Rev. Proc. 2016–37 and section 8.06(3) of Rev. Proc. 2017-41.

.05 An employer will not be treated as having adopted a pre-approved plan if the employer has signed or otherwise adopted the plan prior to the date of issuance of the pre-approved plan’s opinion letter. See section 7.03(2) of Rev. Proc. 2017-41. In this case, the determination letter application for the employer’s plan may not be filed on Form 5307 and will not be eligible for a reduced user fee. A determination letter application for a pre-approved plan must be based on the pre-approved plan with any applicable modifications.

.06 In accordance with section 14 of Rev. Proc. 2016-37, adopting employers of pre-approved plans have a six-year remedial amendment cycle. An adopting employer of a nonstandardized plan that makes changes to the plan that are not extensive must submit the determination letter application within the employer adoption window announced by the Service, as described in section 14.03 of Rev. Proc. 2016-37. Applications submitted outside of that employer adoption window will be returned.

Bulletin No. 2023–1 207 January 3, 2023

Scope .01 This section sets forth procedures for applications filed with respect to plans described in § 413(c). A plan is not described in § 413(c) if all the employers maintaining the plan are members of the same controlled group or affiliated service group under § 414(b), (c), or (m).

Applicant must request letter for plan in the name of the controlling member

.02

(1) A determination letter applicant for a multiple employer plan that is otherwise eligible to apply for a determination letter must request a letter for the plan in the name of the adopting employer sponsoring a plan that submits the application as the lead employer of the multiple employer plan (controlling member). An applicant requesting a letter for the plan submits one Form 5300, Application for Determination of Employee Benefit Plan, for the plan in the name of the controlling member, either including or omitting the design-based safe harbor questions. A participating employer maintaining a multiple employer plan may not request its own determination letter but may rely on a favorable determination letter issued to the controlling member, except with respect to the requirements of §§ 401(a)(4), 401(a)(26), 401(l), 410(b), and 414(s), and, if the participating employer maintains or has ever maintained another plan, §§ 415 and 416.

(2) A determination letter for a multiple employer plan issued pursuant to this revenue procedure will provide reliance for purposes of the requirements of § 413(c); ⁴ however, pending issuance of final regulations under § 413(e), a favorable determination letter for a multiple employer plan will not provide reliance for purposes of § 413(e). An applicant that has a determination letter application for a multiple employer plan pending with the Service as of January 3, 2022, may withdraw the pending application, receive a refund of the user fee relating to the application, and resubmit the application following the issuance of final regulations under § 413(e). If the withdrawn application had been submitted for initial qualification of the plan, the resubmission of that application will not cause the application to fail to be considered as an application for initial qualification.

Where to file requests .03 The application must be sent to the address provided in section 31 of this revenue procedure. See Appendix A, section .07(1)(d) and (e) of this revenue procedure for the applicable user fee.

Addition of employers .04 The controlling member may continue to rely on its favorable determination letter after another employer commences participation in the controlling member’s multiple employer plan. An employer that commences participation in the multiple employer plan after the controlling member receives a favorable determination letter may rely on the determination letter of the controlling member.