SECTION 8. IN

WHAT AREAS ARE DETERMINATION LETTERS ISSUED?

Circumstances under which determination letters are issued

.01 Employee Plans Rulings and Agreements issues determination letters in response to taxpayers’ written requests on completed transactions on matters within its jurisdiction.

Employee Plans Rulings and Agreements does not issue determination letters on the tax consequences of proposed transactions, except on the qualified status of employee plans under §§ 401, 403(a), 409, and 4975(e)(7), and the exempt status of any related trust under § 501. Beginning June 1, 2023, Employee Plans Rulings and Agreements will accept determination

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letter applications for § 403(b) individually designed plans. See section 1.03(1) of this revenue procedure for eligibility.

For information regarding the procedures for obtaining opinion and advisory letters for prototype plans and VS plans under § 403(b) with respect to an application submitted for the first six-year remedial amendment cycle), see Rev. Proc. 2013-22. The procedures for obtaining an opinion letter with respect to a § 403(b) pre-approved plan’s second six-year remedial amendment cycle (and subsequent cycles) are set forth in Rev. Proc. 2021-37

Types of requests .02 Determination letters may be requested on completed and proposed transactions as set forth in the table below:

TYPE OF REQUEST FORMS REV. PROC. SECTION 1. Initial Qualification a. Individually-designed plans (including collectively

5300 11 bargained plans and § 403(b) plans)

b. Pre-approved plans 5300, 5307 12 c. Employee Stock Ownership Plans (“ESOPs”) 5300, 5309 11 d. Multiple employer plans (§ 413(c) only) 5300 14 e. Group trusts 5316 16 f. Section 414(x) combined qualified plans 5300 11 2. Termination a. Individually-designed plans (including collectively

5310, 6088 6, 15 bargained plans and § 403(b) plans)

b. Pre-approved plans 5310, 6088 6, 15 c. Multiemployer plan covered by PBGC insurance 5300, 6088, Cover letter 15 Note: Form 5310-A, Notice of Plan Merger, Consolidation, Spinoff or Transfer of Plan Assets or Liabilities – Notice of Qualified Separate Lines of Business , generally must be filed not less than 30 days before the merger, consolidation or transfer of assets and liabilities. The filing of Form 5310-A will not result in the issuance of a determination letter. 3. Certain Merged Plans Eligible to be Submitted under 5300 10.06(2), 11 Rev. Proc. 2022-40

4. Standardized and Nonstandardized Pre-approved Plans (applicable to determination letter requests submitted pursuant to Rev. Proc. 2017-41, with respect to the third six-year remedial amendment cycle (and subsequent cycles)) a. Adoption of a nonstandardized plan that is not a mul tiple employer plan, if the adopting employer has not made extensive modifications to the language of the pre-approved plan

5307 12, 13

b. Adoption of a nonstandardized plan, if the adopting

5300 12 employer has made extensive modifications

c. Adoption of a standardized plan that is not a multiple

employer plan, if the employer requests a determination solely on overriding plan language added to satisfy §§ 415 or 416

5307 12

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TYPE OF REQUEST FORMS REV. PROC. SECTION d. Adoption of a standardized plan, if the adopting em

ployer has made any modifications other than overriding plan language added to satisfy § 415 or 416

5300 12

e. Adoption by the controlling member of a qualified

multiple employer plan, if the controlling member has made any modifications

f. Adoption of a standardized or nonstandardized pension

plan, including a qualified multiple employer plan, if the adopting employer (or, in the case of a multiple employer plan, the controlling member) requests a determination that the plan’s normal retirement age satisfies the requirements of the regulations (final or proposed, as applicable) under § 1.401(a)-1(b)(2))

5300 12

5300 12

5. Special Types of Requests for Qualified Plans a. Leased employees (§ 414(n)) 5300, Cover letter 17 b. Partial termination 5300, Cover letter 9.09 c. Section 401(h) determination letters 5300, Cover letter 18 d. Section 420 determination letters including other mat 5300, Cover letter, Checklist 18 ters under § 401(a)

e. Section 420 determination letters excluding other mat 5300, Cover letter, Checklist 18 ters under § 401(a)

Areas in which determination letters will not be issued

.03 Determination letters issued in accordance with this revenue procedure do not include determinations involving the following:

(1) Issues involving §§ 72, 79, 105, 125, 127, 129, 402, 404, 409(l), 409(n), 412, 414(b), 414(c), 414(h)(2), 414(m), 415(m), 457, 511 through 515, and 4975 (other than 4975(e)(7));

(2) Plans or plan amendments for which automatic reliance is granted pursuant to section 7 of Rev. Proc. 2017-41 or section 8 of Rev. Proc. 2021-37;

(3) Plan amendments described below (these amendments will, to the extent provided, be deemed not to alter the status of a plan:

(a) An amendment solely to permit a trust forming part of a plan to participate in a pooled fund arrangement described in Rev. Rul. 81-100, 1981-1 CB 326, as clarified and modified by Rev. Rul. 2004-67, 2004-2 CB 28; Rev. Rul. 2011-1, 2011-2 IRB 251; Notice 2012-6, 2012-3 IRB 293; and Rev. Rul. 2014-24, 2014-37 IRB 529;

(b) An amendment that merely adjusts the maximum limitations under § 415 to reflect annual cost-of-living increases under § 415(d), other than an amendment that adds an automatic cost-ofliving adjustment provision to the plan;

(c) An amendment to qualified plans solely to include language pursuant to section 403(c) (2) of Title I of the Employee Retirement Income Security Act of 1974 (ERISA) concerning the reversion of employer contributions made as a result of mistake of fact; and

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Determination letter applications

Review of determination letters

(4) Determination letter requests with respect to plans that combine an ESOP (as defined in § 4975(e)(7)) with retiree medical benefit features described in § 401(h) (sometimes referred to as an HSOP):

(a) In general, determination letters will not be issued with respect to plans that combine an ESOP with another ESOP containing 401(h) features with respect to:

(i) whether the requirements of § 4975(e)(7) are satisfied;

(ii) whether the requirements of § 401(h) are satisfied; or

(iii) whether the combination of an ESOP with an ESOP that contains 401(h) features in a plan adversely affects its qualification under § 401(a);

(b) However, an arrangement will not be considered to be covered by this section 8.03(4) if, under the provisions of the plan, the following conditions are satisfied:

(i) No individual accounts are maintained in the § 401(h) account (except as required by § 401(h)(6));

(ii) No employer securities are held in the § 401(h) account;

(iii) The § 401(h) account does not contain the proceeds (directly or otherwise) of an exempt loan as defined in § 54.4975–7(b)(1)(iii) of the Pension Excise Tax Regulations; and

(iv) The amount of actual contributions to provide § 401(h) benefits (when added to actual contributions for life insurance protection under the plan) does not exceed 25 percent of the sum of (1) the amount of cash contributions actually allocated to participants’ accounts in the plan, and (2) the amount of cash contributions used to repay principal with respect to the exempt loan, both determined on an aggregate basis since the inception of the § 401(h) arrangement; and

(5) Any issue, if the same issue involving the same taxpayer or a related taxpayer is pending in a case in litigation or before the Independent Office of Appeals.

.04 The Service will accept applications for determination letters for plans seeking initial qualification and terminating plans any time during the year. See section 12 of Rev. Proc. 2022–40. In addition, the Service will accept applications for determination letters for certain individually designed merged plans, provided the conditions described in Rev. Proc. 2022-40 are met. Beginning June 1, 2023, Employee Plans Rulings and Agreements will accept determination letter applications for § 403(b) individually designed plans. See section 1.03(1) of this revenue procedure for eligibility.

.05 Determination letters issued under this revenue procedure generally are not reviewed by any other office of the Service before they are issued. If a taxpayer believes that the conclusion reached in a determination letter is in error, the taxpayer may ask Employee Plans Rulings and Agreements to reconsider the matter or to request technical advice from the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) as described in Rev. Proc. 2023–2, this Bulletin.

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