SECTION 1. WHAT IS

THE PURPOSE OF THIS REVENUE PROCEDURE?

Purpose of revenue procedure

Organization of revenue procedure

.01 This revenue procedure explains how the Internal Revenue Service (Service) provides advice to taxpayers on issues under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division, Employee Plans Rulings and Agreements Office (Employee Plans Rulings and Agreements). It also details the types of advice available to taxpayers, and the procedures for requesting and receiving such advice.

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(1) Part I of this revenue procedure sets forth general information about the types of advice provided by Employee Plans Rulings and Agreements and the procedures that apply to both requests for determination letters and requests for private letter rulings. Part II contains procedures for determination letters for various types of plans and transactions. Part III contains procedures for private letter rulings within the jurisdiction of Employee Plans Rulings and Agreements. Part IV sets forth the rules for user fees that are required to be paid when requesting various types of advice.

(2) Employee Plans Rulings and Agreements issues letter rulings only on certain matters specified in section 24.01 of this revenue procedure. Rev. Proc. 2023-1, this Bulletin, sets forth

January 3, 2023 168 Bulletin No. 2023–1

Other guidance affecting this revenue procedure

procedures for obtaining letter rulings from the Office of Associate Chief Counsel, including letter rulings relating to qualified retirement plans, § 403(b) plans, and IRAs. Rev. Proc. 2023-2, this Bulletin, sets forth procedures for requesting technical advice from the Office of Associate Chief Counsel.

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(1) Determination letter program

(a) Rev. Proc. 2022-40, 2022-47 IRB 487, provides the circumstances under which a plan sponsor may submit an individually designed plan determination letter application to Employee Plans Rulings and Agreements. Under Rev. Proc. 2022-40, an employer sponsoring an individually designed plan, including, beginning June 1, 2023, a § 403(b) individually designed plan, generally may file a determination letter application only for initial plan determination, for plan termination, and in certain other circumstances identified by the IRS in guidance published in the Internal Revenue Bulletin (IRB). Plan sponsors may also submit a determination letter application in other specified circumstances, including a submission for a qualified individually designed Merged Plan, as defined in Rev. Proc. 2022-40.

A plan sponsor of a § 403(b) individually designed plan may submit the plan for an initial plan determination no earlier than the dates provided in the chart below. The dates are based on the last digit of a plan sponsor’s EIN. A plan sponsor may submit a determination letter application in any year after the year identified in the chart.

(b) Rev. Proc. 2016-37 ¹ describes a system of remedial amendment cycles that applies to qualified pre-approved plans and the deadlines to submit applications for opinion letters.

(c) Each year a Required Amendments List is issued, which establishes the end of the remedial amendment period for an individually designed plan with respect to changes in qualification requirements that appear on the list. The 2022 Required Amendments List for Qualified Retirement Plans and § 403(b) Retirement Plans is set forth in Notice 2022-62, 2022-49 IRB 506. See https:// www.irs.gov/retirement-plans/required-amendments-list for all Required Amendments Lists.

(d) Notice 2017-1, 2017-2 IRB 367, provides an exemption from the requirement to pay a user fee for certain requests to the Service for determination letters with respect to the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership (ESOP) plans maintained by small employers.

(2) Qualified plans pre-approved plan program – third six-year remedial amendment cycle

1 For purposes of this revenue procedure, references to Rev. Proc. 2016-37 are to Rev. Proc. 2016-37, as modified by Rev. Proc. 2017-41, 2017-29 IRB 92, Rev. Proc. 2020-40, 2020-38 IRB 575, and Rev. Proc. 2021-38, 2021-38 IRB 425, but not as modified by Rev. Proc. 2022-40, 2022-47 IRB 487.

Bulletin No. 2023–1 169 January 3, 2023

(a) Rev. Proc. 2017-41, 2017-29 IRB 92, modifies the pre-approved program for qualified plans by eliminating the distinction between M&P and VS plans, liberalizing the types of plans eligible for pre-approved status, and affording greater flexibility in plan design. In addition, Rev. Proc. 2017-41 sets forth the procedures for obtaining an opinion letter for qualified pre-approved plans submitted with respect to the third six-year remedial amendment cycle (and subsequent cycles). The third six-year remedial amendment cycle for defined contribution plans began on February 1, 2017, and ends on January 31, 2023.

(b) Rev. Proc. 2020-10, 2020-21 IRB 295, provides that the third six-year remedial amendment cycle for pre-approved defined benefit plans began on May 1, 2020 and the on-cycle submission period for providers to submit opinion letter applications began on August 1, 2020. Notice 202035, 2020-35 IRB 948, provides that the deadline for employer adoption of pre-approved defined benefit plans for the second six-year remedial amendment cycle and for employers to submit determination letter applications, if eligible, was extended to July 31, 2020. Consequently, the third six-year remedial amendment cycle for pre-approved defined benefit plans began on August 1, 2020.

(c) Notice 2020-14, 2020-13 IRB 555, sets forth the 2020 Cumulative List, which is used by the Service in its review of opinion letter applications for pre-approved defined benefit plans during the third six-year remedial amendment cycle.

(d) Rev. Proc. 2020-40, 2020-38 IRB 575, modifies Rev. Proc. 2016-37 to provide that the general deadline for adopting a discretionary amendment made to a qualified pre-approved plan (generally the end of the plan year for which the plan amendment is put into effect) applies unless a statutory provision, regulations, or other guidance published in the Internal Revenue Bulletin sets forth a different deadline.

(e) Rev. Proc. 2021-38, 2021-38 IRB 425, modifies the interim amendment deadline set forth in section 15.04(1) of Rev. Proc. 2016-37 to provide that an interim amendment made to a preapproved plan qualified under § 401(a) is adopted timely if the amendment is adopted by the end of the second calendar year after the calendar year in which the change in qualification requirements is effective with respect to the plan. Rev. Proc. 2021-38 applies to disqualifying provisions that are effective with respect to a plan after December 31, 2020.

(3) Section 403(b) pre-approved plan program

(a) Rev. Proc. 2013-22, 2013-18 IRB 985, ² sets forth the procedures for obtaining opinion and advisory letters for § 403(b) prototype plans and VS plans with respect to the first six-year remedial amendment cycle for § 403(b) pre-approved plans (the cycle that ended on June 30, 2020). Rev. Proc. 2013-22 also sets forth the initial remedial amendment period for § 403(b) plans and provides that the Service will announce, in subsequent guidance, the date that will be the last day of the remedial amendment period.

(b) Rev. Proc. 2019-39, 2019-42 IRB 945, as modified by Rev. Proc. 2020-40, 2020-38 IRB 575, Notice 2020-35, 2020-35 IRB 948, and Rev. Proc. 2021-37, 2021-38 IRB 385, sets forth a system of recurring remedial amendment periods for correcting form defects in § 403(b) individually designed plans and § 403(b) pre-approved plans first occurring after the initial remedial amendment period ends. Rev. Proc. 2019-39 also provides plan amendment deadlines for § 403(b) individually designed and pre-approved plans. Rev. Proc. 2020-40 modifies Rev.

2 For purposes of this revenue procedure, references to Rev. Proc. 2013-22 are to Rev. Proc. 2013-22, as modified by Rev. Proc. 2014–28, 2014-16 IRB. 944, Rev. Proc. 2015–22, 2015-11 IRB 754, Rev. Proc. 2019-39, 2019-42 IRB 945 and Rev. Proc. 2021-37, 2021-38 IRB 385; and clarified by Rev. Proc. 2017-18, 2017-5 IRB 743.

January 3, 2023 170 Bulletin No. 2023–1

Proc. 2019-39 to provide that the general deadline for adopting a discretionary amendment made to a § 403(b) pre-approved plan (generally the end of the plan year for which the plan amendment is put into effect) applies unless a statutory provision, regulations, or other guidance published in the Internal Revenue Bulletin, sets forth a different deadline.

(c) Rev. Proc. 2017-18, as modified by Notice 2020-35, 2020-35 IRB 948, provides that the last day of the initial remedial amendment period for § 403(b) pre-approved plans was generally June 30, 2020. Consequently, the second six-year remedial amendment cycle for § 403(b) preapproved plans began on July 1, 2020.

(d) Rev. Proc. 2021-37 modifies and supersedes Rev. Proc. 2013-22 for opinion letter applications submitted with respect to a § 403(b) pre-approved plan’s second six-year remedial amendment cycle (and subsequent cycles). The provisions of Rev. Proc. 2013-22 continue to apply to opinion and advisory letter applications submitted for the first cycle for § 403(b) preapproved plans.

(4) IRA opinion letter program