SECTION 9. WHAT IS

THE GENERAL SCOPE OF A DETERMINATION LETTER?

Scope of this section .01 This section delineates, generally, the scope of a determination letter issued by Employee Plans Rulings and Agreements. This section also identifies certain requirements that are not considered by Employee Plans Rulings and Agreements in its review of a plan and with respect to which determination letters do not provide reliance. This section applies to all determination letters, other than letters relating to group trusts, and certain letters relating solely to the requirements of § 420 (regarding the transfer of assets in a defined benefit plan to a health benefit account described in § 401(h)). For additional information pertaining to the scope of reliance on a determination letter, see section 23 of this revenue procedure.

Scope of determination letters

.02

(1)(i) General rule for changes in qualification requirements or § 403(b) requirements as defined in Rev. Proc. 2022-40 that have been or will be included on a Required Amendments List. Except as otherwise provided in section 9.02(1)(iii), with respect to ongoing plans, the Service will consider, in reviewing changes in qualification requirements and § 403(b) requirements that have been or will be included on a Required Amendments List, only those changes that appear on a Required Amendments List issued on or before the last day of the second calendar year preceding the year in which the determination letter application is submitted.

(ii) General rule for qualification requirements or § 403(b) requirements as defined in Rev. Proc. 2022-40 that have not been and will not be included on a Required Amendments List. Except as otherwise provided in section 9.02(1)(iii), with respect to ongoing plans, the Service will consider, in reviewing qualification requirements and § 403(b) requirements that have not been and will not be included on a Required Amendments List, only those qualification requirements and § 403(b) requirements that are in effect on or before the last day of the second calendar year preceding the year in which the determination letter application is submitted.

See Section 10 of Rev. Proc. 2022–40 for further details on the scope of Employee Plans Rulings and Agreements’ review of determination letter applications.

(iii) There are no exceptions to the general rules for ongoing plans under section 9.02(1)(i) or (ii) for 2023. See section 10.03 of Rev. Proc. 2022-40.

(2) Terminating plans. For terminating plans, the Service will consider the qualification requirements or § 403(b) requirements that apply as of the date of termination, regardless of whether such requirements are included on a Required Amendments List. See sections 5.03(3) and 10.02 of Rev. Proc. 2022-40.

Design-based safe harbor .03 Generally, a plan will not be reviewed for, and a determination letter may not be relied on with respect to, whether a plan satisfies the nondiscrimination requirements of § 401(a)(4), the minimum participation requirements of § 401(a)(26), or the minimum coverage requirements of § 410(b). However, if the applicant elects, and the plan document provides a definition of compensation that satisfies § 1.414(s)-1(c), a plan will be reviewed for, and a determination letter may be relied on with respect to, whether the terms of the plan satisfy one of the design-based safe harbors in § 1.401(a)(4)-2(b) (relating to nondiscrimination in amount of contributions) or 1.401(a)(4)-3(b) (relating to nondiscrimination in amount of benefits). A defined contribution plan

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Governmental plans under § 414(d)

Church plans under § 414(e)

Tax treatment of certain contributions under § 414(h)

Other limits on scope of determination letter

will also be reviewed for, and a determination letter may be relied on with respect to, whether a plan’s terms satisfy the applicable requirements of §§ 401(k) and 401(m).

.04 A plan will not be reviewed for, and a determination letter does not constitute a ruling or determination as to, whether the plan is a governmental plan within the meaning of § 414(d). If a determination letter applicant represents on the application that the plan is a governmental plan within the meaning of § 414(d), the determination letter issued for the plan is predicated on that representation, and the Service’s determination is conditioned on the plan constituting a governmental plan within the meaning of § 414(d).

.05 A plan will not be reviewed for, and a determination letter does not constitute a ruling or determination as to, whether the plan is a church plan within the meaning of § 414(e). If a determination letter applicant represents on the application that the plan is a church plan within the meaning of § 414(e), the determination letter issued for the plan is predicated on that representation, and the Service’s determination is conditioned on the plan constituting a church plan within the meaning of § 414(e).

.06 A plan will not be reviewed for, and a determination letter does not constitute a ruling or determination as to, whether contributions to the plan satisfy § 414(h). A determination letter does not express an opinion on whether contributions made to a plan treated as a governmental plan defined in § 414(d) constitute employer contributions under § 414(h)(2).

.07 A favorable determination letter does not provide reliance for purposes of §§ 404, 412, 430, 431, and 432 with respect to whether an interest rate (or any other actuarial assumption) is reasonable. A favorable determination letter does not constitute a determination with respect to whether any requirements of § 414(r), relating to whether an employer is operating qualified separate lines of business, are satisfied.

Leased employees .08 In addition to a determination letter request for a qualified plan, an applicant that is otherwise eligible to submit an application for a determination letter for a qualified plan may submit a cover letter requesting a determination as to whether leased employees are deemed employees of the employer under the meaning of § 414(n), with the additional information set forth in section 17 of this revenue procedure, including the Form 5300, Application for Determination for Employee Benefit Plan.

Partial terminations .09 An applicant that seeks a determination as to whether a partial termination has occurred in a qualified plan must file a determination letter application electing such a determination using Form 5300. The applicant may file for a determination as to whether a partial termination has occurred, whether or not the plan is otherwise eligible to be submitted for a determination letter pursuant to section 11.01 or 12.03(3)(b) of this revenue procedure with respect to the third remedial amendment cycle (and subsequent cycles), as long as the scope of the determination letter issued with respect to the plan is limited solely to the request regarding whether a partial termination has occurred. In addition, an adopting employer of a pre-approved plan (or, if the plan is a multiple employer plan, the controlling member (an adopting employer sponsoring a qualified plan that submits the application as the lead employer of the multiple employer plan)) may request a determination limited to whether a partial termination has occurred. Applicants may not request a determination letter with respect to the entire plan unless the plan is otherwise eligible to be submitted for a determination letter.

Publication 794, Favorable Determination Letter

.10 Publication 794, Favorable Determination Letter, contains other information regarding the scope of a determination letter, including the requirement that all information submitted with the application be retained as a condition of reliance. In addition, the specific terms of each letter may

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further define its scope and the extent to which it may be relied upon. Publication 794 can also be found at https://www.irs.gov/forms-instructions.