SECTION 13. PLAN AMENDMENTS

.01 Provider plan amendments generally . Providers are required to amend their Pre-approved Plans to ensure that the form of their plans continues to satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable. ²⁰ Providers must make reasonable and diligent efforts, as soon as practicable following the adoption of plan amendments, to ensure that Adopting Employers of the Provider’s plan have actually received and are aware of such plan amendments. Providers must include the date on which each amendment is adopted by the Provider with the amendment provided to Adopting Employers. The Provider must have a procedure to notify an Adopting Employer of amendments and restatements of the plan and to inform the Adopting

19 Accordingly, if a Pre-approved Plan is operated in a manner that is inconsistent with a provision of the basic plan document or single plan document, the plan will incur an operational failure even if the plan is operated in a manner consistent with a provision of a Trust or Custodial Account Document or Investment Arrangement that conflicts with the provision of the basic plan document or single plan document.

20 See section 6.04 regarding the requirement to make Interim Amendments.

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Employer, when applicable, of the need to timely adopt or amend the plan, including in the case of both initial adoption and restatement of the plan. The Provider must also notify an Adopting Employer that failure to timely adopt the plan or restatement, when required, or failure to take into account plan amendments in the operation of the plan, could result in adverse tax consequences. A Provider’s failure to comply with these requirements may result in the loss of eligibility to offer Pre-approved Plans and the revocation of an Opinion Letter that has been issued to the Provider.

.02 Amendments that will not affect reliance . An Adopting Employer may continue to rely on an Opinion Letter for a Pre-approved Plan if amendments to the plan are made that are described in paragraphs (1) through (8) of this section 13.02. See section 12.01 and 12.02 for the effect of amendments on reliance on an Opinion Letter by the Adopting Employer. The following types of amendments will not cause an Adopting Employer to lose reliance on an Opinion Letter:

(1) Amendments to the plan to add or change a provision (including choosing among options in the plan) or to specify or change the effective date of a provision, provided the Adopting Employer is permitted to make the modification or amendment under the terms of the Pre-approved Plan as well as under the Qualification Requirements or Section 403(b) Requirements, as applicable, and the provision is identical to a provision in the Pre-approved Plan, except for the effective date;

(2) Sample or model amendments (or an amendment that is substantially similar to a sample or model amendment in all material respects) that are adopted by the Adopting Employer, that are published by the IRS, and that specifically provide that their adoption will not cause a plan to fail to be identical to the Pre-approved Plan;

(3) Amendments that adjust the limitations under §§ 415, 402(g), 401(a)(17), and 414(q)(1)(B) to reflect annual cost-of-living increases, or add automatic cost-of-living adjustment provisions to the plan;

(4) Plan language completed by the Adopting Employer if such overriding language is necessary to satisfy § 415 (or 416, in the case of a Qualified Pre-approved Plan) because of the required aggregation of multiple plans under that section, in accordance with section 9.02(3) or 9.06(2);

(5) Interim Amendments or Discretionary Amendments that are adopted as a result of a change in Qualification Requirements or Section 403(b) Requirements, as applicable, for the form of the plan;

(6) Amendments that reflect a change of a Provider’s name, in which case the Provider must notify the IRS, in writing, of the change in name and certify that it still satisfies the conditions to be a Provider described in section 4.01(15) (see also section 19 regarding changes in employer identification numbers);

(7) Amendments to the administrative provisions in the plan (such as provisions relating to investments, plan claims procedures, and Adopting Employer’s contact information), provided the amended provisions are not in conflict with any other provision of the plan, still meet the requirements of this revenue procedure, and do not cause the plan to fail to satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable, (see section 15.03(1)(b)(ii) for additional examples of administrative provisions); and

(8) Amendments with respect to which a closing agreement under the Audit Closing Agreement Program or a compliance statement under the Voluntary Correction Program of EPCRS has been issued (see section 6.05(2)(b) of Rev. Proc. 2021-30 regarding the ability of the Adopting Employer to rely on the Opinion Letter).

.03 Obtaining reliance after employer amendment . If an Adopting Employer may not rely on a Pre-approved Plan’s Opinion Letter, the Adopting Employer, if eligible in accordance with section 25, may submit an application for a determination letter to obtain reliance that the form of the plan satisfies the Qualification Requirements or Section 403(b) Requirements, as applicable.

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.04 Effect of employer amendments on a plan’s eligibility for the Cycle system . Except as set forth in section 13.05, employer amendments made to a Pre-approved Plan will not affect the plan’s eligibility for the Cycle system.

.05 Pre-approved plans treated as individually designed . An Adopting Employer’s Pre-approved Plan is treated as individually designed (and, as a result of the plan being treated as individually designed, the Adopting Employer may not rely on the plan’s Opinion Letter (see section 12 regarding reliance), will lose eligibility for the Cycle system as described in this section 13.05 (see section 11 regarding eligibility for the Cycle system), and will be subject to different rules for applying for a determination letter (see section 25 regarding determination letters)) under the following circumstances:

(1) An Adopting Employer makes any amendment to a Standardized Plan other than an amendment listed in section 13.02 or as otherwise described in this section 13.05. In this case, the Adopting Employer will lose reliance on the Opinion Letter as of the effective date of the amendment but the plan will remain eligible for the Cycle system (provided that the Adopting Employer adopts timely Interim Amendments) until the end of the Cycle that includes the effective date. ²¹

(2) An Adopting Employer amends a Pre-approved Plan (including its adoption agreement, if applicable) within one year of the date the Adopting Employer initially adopted the Pre-approved Plan to incorporate a type of plan not permitted in the Opinion Letter program, as described in section 10.02. In this case, the Adopting Employer is treated as never having had any reliance on the Opinion Letter and is treated as never having been eligible for the Cycle system.

(3) An Adopting Employer amends a Pre-approved Plan (including its adoption agreement, if applicable) more than one year after the date the Adopting Employer initially adopted the Preapproved Plan to incorporate a type of plan not permitted in the Opinion Letter program, as described in section 10.02. In this case, the Adopting Employer will lose reliance on the Opinion Letter as of the effective date of the amendment but the plan will remain eligible for the Cycle system (provided that the Adopting Employer adopts timely Interim Amendments) until the end of the Cycle that includes the effective date.

(4) An Adopting Employer of a Nonstandardized Plan makes amendments that, due to the nature and extent of the amendments, result in the IRS, in its sole discretion, determining that the plan should be treated as individually designed. In this case, the Adopting Employer generally will lose reliance on the Opinion Letter as of the effective date of the amendments but the plan will remain eligible for the Cycle system (provided that the Adopting Employer adopts timely Interim Amendments) until the end of the Cycle that includes the effective date.

(5) An Adopting Employer chooses to discontinue participation in a Pre-approved Plan that has been amended by the Provider without substituting another Pre-approved Plan. In this case, the Adopting Employer will lose reliance on the Opinion Letter as of the date participation in the Pre-approved Plan ends but the plan will remain eligible for the Cycle system (provided that the Adopting Employer adopts timely Interim Amendments) until the end of the Cycle that includes the date on which participation in the Pre-approved Plan ends.

(6) An Adopting Employer makes an amendment to a Pre-approved Plan that removes any of the required provisions of section 9. In this case, the Adopting Employer will lose reliance on the Opinion Letter as of the effective date of the amendment, but the plan will remain eligible for the Cycle system (provided that the Adopting Employer adopts timely Interim Amendments) until the end of the Cycle that includes the effective date.

(7) As set forth in section 11.02, if, during the Employer Adoption Window for a Cycle, an Adopting Employer adopts a plan other than either a newly approved version of the same plan or a newly

21 Adopting Employers who are considering making an amendment that is not extensive to a Standardized Plan might consider adopting a Nonstandardized Plan instead, in order to be able to apply for determination letter using Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-approved Plans, as a Pre-approved Plan. See section 25.

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approved version of a different Pre-approved Plan, the plan will continue to be subject to the Remedial Amendment Period rules applicable to Pre-approved plans until the end of the Employer Adoption Window for that Cycle; however, for purposes other than the Remedial Amendment Period, at the time the plan that is not a newly approved Pre-approved Plan is adopted, the plan will be treated as an individually designed plan. In contrast, if, by the end of any Employer Adoption Window, an Adopting Employer fails to adopt a newly approved version of the same plan or a newly approved version of a different Pre-approved Plan, and does not adopt another plan to replace its Pre-approved plan, the plan will be treated as an individually designed plan at the end of that Employer Adoption Window.

(8) As set forth in section 6.04, if an Interim Amendment is not adopted by the time period set forth in section 7 and the Adopting Employer does not correct this failure to timely adopt the Interim Amendment within two years after the time period set forth in section 7, then the Adopting Employer’s plan will be treated as an individually designed plan at the end of that two-year period.

SECTION 14. OPINION LETTER APPLICATIONS - INSTRUCTIONS TO PROVIDERS AND OTHER RULES FOR

APPLICATIONS AND LETTERS

.01 Issuance of an Opinion Letter . The IRS will, upon an application of a Provider, issue an Opinion Letter confirming that the form of the Provider’s plan satisfies the Qualification Requirements or Section 403(b) Requirements, as applicable.

.02 Cycle 4 Submission Period for defined contribution Qualified Pre-approved Plans . Pursuant to this revenue procedure, the Submission Period for a Provider of a defined contribution Qualified Pre-approved Plan to submit an application for a Cycle 4 Opinion Letter begins on February 1, 2024, and ends on January 31, 2025. A Provider may still apply for a Cycle 4 Opinion Letter after the Submission Period. See section 16 regarding filing after the Submission Period.

.03 Procedure for applying for an Opinion Letter . The Provider must submit an application for an Opinion Letter with respect to its plan on the version of Form 4461, Application for Approval of Standardized or Nonstandardized Pre-approved Defined Contribution Plans, Form 4461-A, Application for Approval of Standardized or Nonstandardized Pre-approved Defined Benefit Plan, Form 4461-B, Application for Approval of Standardized or Nonstandardized Pre-approved Plans (Mass Submitter Adopting Provider), or Form 4461-C, Application for Approval of Standardized or Nonstandardized 403(b) Pre-approved Plans, as appropriate, that is applicable at the time of the request. The request must be accompanied by (1) the applicable required user fee that will be provided for in the successors to Rev. Proc. 2023-4 (as updated annually), and (2) if an Opinion Letter had been issued for the plan for the preceding Cycle, a signed certification that all necessary amendments required by the IRS in order for the form of the plan to satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable, have been made and communicated to all Adopting Employers. All information on the application form must be typed. The application form must be sent to the address listed in section 24. The application must include a copy of the plan document and any adoption agreement, if applicable. If an Opinion Letter had been issued for the plan for the preceding Cycle, the Provider must submit a restated plan that incorporates any amendments. Copies of Trust or Custodial Account Documents, Investment Arrangements, or other funding media should not be submitted, as the IRS will not review for (and the Opinion Letter will not cover) any provisions included in Trust or Custodial Account Documents, Investment Arrangements, or other funding media. Additionally, the IRS requests that applications be submitted by thumb or flash drive instead of being submitted as paper files, and that the documents be saved in Microsoft Word or Adobe Acrobat PDF format. The IRS strongly encourages Providers to take advantage of this electronic submission format. If a plan received an Opinion Letter for the preceding Cycle, the IRS strongly encourages Providers to submit a redline

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of the plan highlighting the changes made. To pay a user fee, a Provider must continue to submit a paper check and a paper Form 8717-A, User Fee for Employee Plan Opinion Letter Request .

.04 Additional submission requirements for Interim Amendments . If the plan has received an Opinion Letter for the preceding Cycle, in addition to the application described in section 14.03, the Provider must submit a certification that all Interim Amendments related to changes in law listed on the applicable Cumulative List have been made and a cover letter summarizing how the provisions of the plan are affected by each amendment. The IRS retains the right to request and secure from the Provider in appropriate circumstances copies of all Interim Amendments related to changes in law listed on the applicable Cumulative List that the Provider has adopted on behalf of its Adopting Employers.

.05 Expediting review of substantially identical plans . The IRS reserves the right to review applications in any order that will expedite the processing of Opinion Letter applications, subject to section 16 regarding filings made after the Submission Period. To expedite the review of substantially identical plans that are not a Mass Submitter’s plans, the IRS encourages plan drafters and Providers to include with each Opinion Letter application, if appropriate, a cover letter setting forth the following information:

(1) The name and file folder number (if available) of the plan that, for review purposes, the plan drafter designates as the “lead plan” (including the name and EIN of the Provider);

(2) A list of all plans written by the plan drafter that are substantially identical to the lead plan (including the information described in paragraph (1) of this section 14.05 for each plan);

(3) A description of each location in the plan for which the application is being submitted that is not word-for-word identical to the language of the lead plan, including an explanation of the purpose and effect of each such difference; and

(4) A certification made under penalties of perjury by the plan drafter that the information described in paragraph (3) of this section 14.05 is true and complete.

If the Provider or plan drafter is aware that a lead plan or any substantially identical plan has been assigned for review to a specialist, the cover letter also should indicate the name of the specialist, if possible. To the extent feasible, lead plans and substantially identical plans should be submitted together. The IRS will regard the information and certification described in paragraphs (3) and (4) of this section 14.05 as a representation of a material fact for purposes of issuing an Opinion Letter.

.06 Adoption Agreement Plans - number of basic plan documents, adoption agreements, and applications required .

(1) Qualified Pre-approved Plans: use of basic plan document by multiple Adoption Agreement Plans .

(a) In general, provided that the provisions of a basic plan document are identical for all plans using that document, separate defined contribution Qualified Pre-approved Plan adoption agreements may be associated with the same defined contribution Qualified Pre-approved Plan basic plan document, and separate defined benefit Qualified Pre-approved Plan adoption agreements may be associated with the same defined benefit Qualified Pre-approved Plan basic plan document. Thus, for example, a profit-sharing plan, a money purchase pension plan other than a target benefit plan, a target benefit plan, and an ESOP may all use the same defined contribution basic plan document. Adoption agreements of defined benefit plans, defined contribution plans, and § 403(b) plans may not be associated with the same basic plan document.

(b) Basic plan documents and associated adoption agreements used for Governmental Plans must be separate from the basic plan documents and associated adoption agreements used for plans that

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are not Governmental Plans. In addition, the basic plan document and the adoption agreements associated with a church plan, as described in § 414(e), that has not made an election set forth in § 410(d) may not be combined with the basic plan document and the adoption agreements of any other type of plan. Thus, for example, a Provider that wishes to obtain Opinion Letters for a Governmental Plan and a non-electing church plan must submit a separate basic plan document and associated adoption agreement for the Governmental Plan and a separate basic plan document and associated adoption agreement for the non-electing church plan.

(2) Section 403(b) Pre-approved Plans: use of basic plan documents by multiple Adoption Agreement Plans .

(a) Separate Section 403(b) Pre-approved Plan adoption agreements may be associated with the same Section 403(b) Pre-approved Plan basic plan document. Adoption agreements of defined benefit plans, defined contribution plans, and § 403(b) plans may not be associated with the same basic plan document.

(b) A plan that is intended to be a Retirement Income Account and a plan that is not intended to be a Retirement Income Account may not be combined in in the same basic plan document.

(3) Number of adoption agreements required .

(a) A Standardized Plan and a Nonstandardized Plan may not be combined in a single adoption agreement.

(b) The following rules apply for a Qualified Pre-approved Plan:

(i) A profit-sharing plan (with or without a § 401(k) arrangement) that does not include an ESOP feature and a money purchase pension plan that is not a target benefit plan may use the same adoption agreement; however, separate adoption agreements are required for ESOPs and target benefit plans.

(ii) An ESOP is permitted to include both profit-sharing and § 401(k) features in the same adoption agreement; however, an employer that adopts the plan may not adopt the profit-sharing or § 401(k) features without also adopting the ESOP portion of the plan.

(iii) An adoption agreement submitted for a defined benefit plan may include any combination of integrated formulas (that is, formulas that provide for permitted disparity), non-integrated formulas, and cash balance formulas.

(c) For a Section 403(b) Pre-approved Plan, a single adoption agreement may be drafted to cover multiple types of Employers (for example, a single adoption agreement may be drafted to cover a church, a § 501(c)(3) organization, or a public school).

(4) Number of applications required . A separate application form must be filed with respect to each adoption agreement submitted. A basic plan document and all associated adoption agreements should be submitted simultaneously. Only one copy of the basic plan document should be provided. However, if additional adoption agreements are later submitted with respect to a basic plan document, the Provider must submit a copy of the basic plan document with each submission and include a cover letter identifying the original submission (including the date submitted). In that case, the plan number given to the basic plan document must remain the same as in the prior submission.

.07 Separate applications required for Single Document Plans

(1) With respect to a Standardized Plan and a Nonstandardized Plan, a separate plan and application must be submitted for each plan if it is a Single Document Plan.

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(2) For a Qualified Pre-approved Plan, a separate plan and application must be submitted for each of the following types of Single Document Plans: a target benefit plan, an ESOP, and a defined benefit plan. A profit-sharing plan (with or without a § 401(k) arrangement) that does not include an ESOP and a money purchase pension plan that is not a target benefit plan may be combined in a single plan and application. In addition, although an ESOP is permitted to include both profitsharing and § 401(k) features in the same plan, an Employer that adopts the plan may not select the profit-sharing or § 401(k) features without also selecting the ESOP provisions in the plan.

(3) For a Qualified Pre-approved Plan, with respect to a Governmental Plan or a non-electing church plan, a separate plan and application must be submitted for each plan. Thus, for example, separate plans and application forms must be submitted for a Governmental Plan, a plan that is not a Governmental Plan, and a non-electing church plan.

(4) For a Section 403(b) Pre-approved Plan, a separate plan and application is required for each Single Document Plan. A Single Document Plan may accommodate usage by more than one type of Employer; however, a Retirement Income Account plan must always be filed as a separate Single Document Plan.

.08 Sample Language . Before the Submission Period with respect to a Cycle begins, the IRS anticipates providing updated Listings of Required Modifications (LRMs) including sample plan language. Although the sample language is designed for use in plans that use an adoption agreement format, in order to expedite processing, Providers should refer to the sample language as a guide in drafting Single Document Plans. Specifically, to expedite the review of their plans, Providers are encouraged to use LRM language if appropriate. The updated LRMs, when available, may be downloaded at https://www.irs.gov/Retirement-Plans/Listing-of-Required-Modifications-LRMs.

.09 Operational Compliance List . The Remedial Amendment Period permits a plan to be amended retroactively to comply with a change in Qualification Requirements or Section 403(b) Requirements, as applicable; however, a plan must be operated in compliance with those requirements beginning on the effective date of the change. To assist Adopting Employers in achieving operational compliance, the IRS provides annually an Operational Compliance List at https://www.irs.gov/retirement-plans/operational-compliance-list to identify changes in those requirements that are effective during a calendar year. To comply with the Qualification Requirements or Section 403(b) Requirements, as applicable, however, a plan must comply operationally with each relevant requirement, even if the requirement is not included on an Operational Compliance List. Providers may wish to consult the Operational Compliance List when drafting Interim Amendments.

.10 Material furnished to Adopting Employers . A Provider must furnish each Adopting Employer with a copy of the approved Pre-approved Plan, copies of any subsequent amendments, and the most recently issued Opinion Letter for the plan from the IRS.

.11 Effect of failure to disclose a material fact, misrepresentation of a material fact, or to accurately provide information . A Provider’s (1) failure to disclose to the IRS a material fact, (2) misrepresentation of a material fact in the application, or (3) failure to accurately provide any of the information called for on any form required by this revenue procedure may result in the inability of Adopting Employers to rely on the Opinion Letter (for example, if the IRS revokes an Opinion Letter due to the Provider’s failure to disclose to the IRS a material fact, the Adopting Employer would lose reliance on the Opinion Letter). See section 12.03(7) regarding limitations on reliance. The Provider may be required by the IRS to immediately notify each Adopting Employer of any of its Pre-approved Plans affected by the failure if the Adopting Employer’s reliance on the Opinion Letter is affected or if the failure could result in adverse tax consequences for the Adopting Employer.

.12 Additional information may be requested . When reviewing the application for an Opinion Letter, the IRS may, in its discretion, require any additional information that it deems necessary, including a demonstration and/or explanation of how the variables (options or alternatives) in

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the Pre-approved Plan interrelate to satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable. If a letter requesting changes to the Pre-approved Plan is sent to the Provider or an authorized representative, changes responsive to the letter must be received no later than 30 days from the date of the letter, and the response must include either a copy of the plan with the changes highlighted or, if the changes are not extensive, replacement pages. If the changes are not received within 30 days, the application may be considered withdrawn. An extension of the 30-day time limit will only be granted for good cause.

.13 Inadequate submissions . The IRS will return, without further action or refunding of the user fee, plans that are not in substantial compliance with the Qualification Requirements or Section 403(b) Requirements, as applicable, or plans that are so deficient that they cannot be reviewed in a reasonable period of time. A plan may be considered not to be in substantial compliance if, for example, it omits language needed to comply with a Qualification Requirement or Section 403(b) Requirement, as applicable, or merely incorporates those requirements by reference to the applicable Code section. The IRS will not consider a plan with such an omission or cross-reference until after the plan has been revised and resubmitted, and the modified plan will be treated as a new application for approval as of the date it is resubmitted, and therefore will be treated as filed after the Submission Period, as set forth in section 16, if resubmitted after the Submission Period. No additional user fee will be charged if an inadequate submission is amended to be in substantial compliance and is resubmitted to the IRS within 30 days following the date the Provider is notified of the inadequacy.

.14 Nonidentification of questionable issues may cause delay . If a plan submitted as part of an Opinion Letter application includes a provision that gives rise to an issue for which contrary published authorities exist, failure to disclose to the IRS and address any significant contrary authorities may result in requests for additional information, which will delay action on the application. See section 14.12.

.15 No Opinion Letter for later plan amendments . The IRS will not issue an Opinion Letter with respect to amendments made between applicable Submission Periods, and the Provider should not submit an application between applicable Submission Periods for an Opinion Letter with respect to plan amendments. Instead, the Provider must submit a restated plan that incorporates the amendments during the next Submission Period.