SECTION 15. ADDITIONAL REQUIREMENTS FOR MASS SUBMITTERS

.01 Opinion Letters issued to Mass Submitters .

(1) The IRS will, upon request by a Mass Submitter, issue an Opinion Letter confirming that the form of the Mass Submitter’s plan satisfies the Qualification Requirements or Section 403(b) Requirements, as applicable. See section 14 for the instructions for Opinion Letter applications. In the case of a submission of a Pre-approved Plan under this revenue procedure, the Mass Submitter’s application also must be accompanied by applications for an Opinion Letter filed on behalf of 15 unaffiliated Providers, as described in section 4.01(10), that are offering the same plan for that Cycle on a word-for-word identical basis as set forth in section 15.02, unless the Mass Submitter has already satisfied this requirement in connection with a previous application under this revenue procedure involving another Pre-approved Plan pursuant to section 15.01(2). Any plan submitted by a Mass Submitter must include language designating the Mass Submitter as agent for the Provider of the plan for purposes of making plan amendments.

(2) After satisfying the 15-unaffiliated-Providers requirement as to the number of adopting Providers, the Mass Submitter may submit additional applications on behalf of other Providers that wish to adopt a plan that is word-for-word identical to the Mass Submitter’s plan (as an

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identical adopter) or a plan that includes Minor Modifications to the Mass Submitter’s plan (as a minor modifier adopter). In addition, after satisfying the 15-unaffiliated-Provider requirement for one plan of the Mass Submitter, the Mass Submitter may submit applications for an Opinion Letter under this section 15.01 for its other plans, regardless of the number of identical adopters of the other plans.

.02 Reduced procedural requirements for Providers that use Mass Submitter plans . A Provider that uses a Mass Submitter’s plan must obtain an Opinion Letter. In addition to the applicable requirements in section 14, the Mass Submitter must submit on behalf of each Provider a completed application form that includes a declaration by the Mass Submitter under penalty of perjury that the Provider will offer a plan that is word-for-word identical to a plan of the Mass Submitter or a plan that includes Minor Modifications to the Mass Submitter’s plan. If the Provider is offering a plan that is word-for-word identical (including a Flexible Plan), a copy of the plan need not be submitted. If the Mass Submitter submits a plan with Minor Modifications, it must comply with the requirements of section 15.03(2). The application must be accompanied by the required user fee as provided in the successors to Rev. Proc. 2023-4 (as updated annually) and a signed certification that all necessary amendments required by the IRS in order for the form of the Provider’s plan to satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable, have been made and communicated to all Adopting Employers. Upon receipt of the application for an Opinion Letter, the IRS will, as soon as administratively feasible, issue an Opinion Letter with respect to the Provider’s plan (provided that an Opinion Letter has been issued with respect to the Mass Submitter’s plan).

.03 Flexible Plans and Minor Modifications .

(1) Flexible Plan .

(a) In general . A Provider that adopts a Mass Submitter’s Flexible Plan may include or delete any optional provision that is designated as an optional provision in the Mass Submitter’s plan, provided the inclusion or deletion of specific optional provisions conforms to the Mass Submitter’s written representation to the IRS concerning the choices available to a Provider and the coordination of optional provisions. A Mass Submitter must bracket and identify the optional provisions when submitting the plan to the IRS and provide the IRS a written representation describing the choices available to Providers and the coordination of optional provisions. Thus, the representation must indicate whether a Provider’s plan may include only one of a certain group of optional provisions, may include only a specific combination of provisions, or may exclude the provisions entirely. Similarly, if the inclusion (or deletion) of a specific optional provision in a Provider’s plan will automatically result in the inclusion (or deletion) of any other optional provision, this relationship must be set forth in the Mass Submitter’s representation. A Flexible Plan may include only optional provisions that meet the requirements of section 15.03(1)(b), and must be drafted so that the form of any Provider’s plan satisfies the Qualification Requirements or Section 403(b) Requirements, as applicable, notwithstanding the inclusion or deletion of optional provisions. For example, if a Provider’s defined contribution Qualified Pre-approved Plan includes an optional provision that permits a portion of a participant’s account to be invested in life insurance, then, under the terms of the Provider’s plan, the application of the proceeds of the life insurance must meet the requirements of §§ 401(a)(11) and 417. A Flexible Plan adopted by a Provider that differs from the Mass Submitter’s plan only because the Provider has deleted certain optional provisions from its plan in conformance with the Mass Submitter’s representation described in this section 15.03(1)(a) is treated as a plan that is word-for-word identical to the Mass Submitter’s plan. The IRS encourages Mass Submitters to limit the number of optional provisions described in section 15.03(1)(b)(i) and (ii) that Mass Submitters provide under a Flexible Plan to six investment provisions and six administrative provisions.

(b) Optional provisions . A Flexible Plan may include optional provisions that comply with the requirements set forth in this section 15.03(1)(b). The optional provisions may be arranged as separate optional articles or sections within a Pre-approved Plan or as separate optional provisions within a single article or section. A Flexible Plan also may include related optional provisions in

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the adoption agreement. For example, if a plan document for a Mass Submitter’s Flexible Plan includes an optional provision that would permit loans under a Provider’s plan, the adoption agreement may also include an optional provision that would enable an Adopting Employer to elect whether loans are available under the plan it adopts. If the Provider does not wish to enable Adopting Employers to make loans available under their plans, the Provider would need to delete from the Provider’s plan the optional provision in both the plan document and the adoption agreement. A Provider may include or delete optional provisions of a Mass Submitter’s plan, but once the Provider has decided to include an optional provision, it must offer that provision to all Adopting Employers. Any optional provision that the IRS determines does not meet the requirements of this section 15.03(1)(b) must be changed to a non-optional provision or deleted from the Mass Submitter’s plan. The following is an exclusive list of the permissible optional provisions that a Flexible Plan may include:

(i) Investment provisions . A Mass Submitter may offer a variety of investment provisions in its plan for a Provider to include or delete from the Provider’s version of the plan. However, the plan adopted by the Provider must provide some method for investing trust assets. Investment provisions are those provisions that describe the plan’s methods of investing assets, including provisions such as the availability of loans and investments in insurance contracts or other funding media, and self-directed investments.

(ii) Administrative provisions . A Mass Submitter may offer a variety of administrative provisions in its plan for a Provider to include or delete from the Provider’s version of the plan. However, the plan adopted by the Provider must describe how the plan is administered. Administrative provisions are those provisions that describe the administration of the plan, including the powers, duties, and responsibilities of a plan’s custodian, trustee, administrator, Adopting Employer, and other fiduciaries, as applicable. Pursuant to section 9.06(14), every Section 403(b) Pre-approved Plan must provide for an appendix to identify the parties responsible for the various administrative functions under the plan. Optional administrative provisions that a Provider may include in or delete from the plan include the allocation of responsibilities among fiduciaries (if applicable), the resignation or replacement of fiduciaries, the claims procedures under the plan, and the recordkeeping requirements under the plan. However, procedural provisions that are required for the form of the plan to satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable, are not administrative provisions under this section 15. For example, an administrative provision does not include a provision regarding the notice to participants required by § 417 and record-keeping required by regulations under § 401(k) and/or 401(m).

(iii) Cash or Deferred Arrangement . A Mass Submitter of a defined contribution qualified plan may include a self-contained cash or deferred arrangement (as defined in § 401(k)) for Providers to include or delete.

(2) Minor Modifications .

(a) A plan that includes Minor Modifications to the Mass Submitter’s plan must be submitted by the Mass Submitter on behalf of the Provider that will adopt the modified plan. Subject to sections 15.05 and 16 and the provisions of this section 15.03(2)(a), submissions with respect to Minor Modifications will be reviewed on an expedited basis, and Opinion Letters will be issued to the Provider as soon as possible (which might be after the issuance of an Opinion Letter to other Providers (see section 17)).

(b) The IRS reserves the right to determine if the plan’s changes are Minor Modifications (that is, if the changes are not numerous and do not require an in-depth technical review). If the IRS determines that the changes are not minor, the plan submitted under section 15.03(2)(c) is not entitled to expedited review and will otherwise be treated as a non-Mass Submitter plan. In the event the plan is treated as a non-Mass Submitter plan, the IRS will notify the Mass Submitter in writing of its determination. Within 30 calendar days following the date that the notification is provided, either the Mass Submitter may revise the plan so that the modifications are minor and resubmit the revised plan, or the Provider may submit Form 4461, 4461-A, or 4461-C, whichever

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is applicable, and an additional user fee in an amount equal to the difference between a non-Mass Submitter plan application user fee and a minor modifier adopter plan application user fee. If, after the 30-day period, neither action has been taken, the IRS may treat the application as having been withdrawn.

(c) During the Submission Period, the Mass Submitter must initially submit the first page of the application as a placeholder with respect to each Provider that will offer a plan that includes Minor Modifications to the Mass Submitter’s plan. After the IRS sends a notification to the applicable Mass Submitter with respect to the lead plan indicating that the IRS has determined that the form of the plan appears to be in full compliance with the applicable Qualification Requirements or Section 403(b) Requirements, as applicable, the Mass Submitter will have 21 days to submit a copy of the Mass Submitter’s plan with the Provider’s modifications highlighted, as well as a statement indicating the location and effect of each change. The Mass Submitter must certify under penalties of perjury that the plan of the Provider, except for the delineated changes, is wordfor-word identical to the plan for which the Mass Submitter will be receiving or has received an Opinion Letter. If a Mass Submitter fails to identify a material modification, the failure is considered a material misrepresentation, and an Adopting Employer may not rely on the Opinion Letter that may be issued with respect to the plan for the modification or any other provision of the plan that may be affected by the modification. See section 12.03(8) regarding limitations on reliance. The Mass Submitter must also immediately notify any affected minor modifier adopter of the failure, and the minor modifier adopter must notify all Adopting Employers of any of its Pre-approved Plans affected by the failure, including an explanation of the effect of the failure on the reliance by Adopting Employers on the Opinion Letter. If a Mass Submitter repeatedly fails to identify the modifications, the IRS may deny permission to that Mass Submitter to submit additional modifications.

.04 Amendments of Mass Submitter plans . If a Mass Submitter amends any of its plans, the Mass Submitter must provide copies of the amendment to Providers that have adopted the plan. Any Provider that does not wish to make the amendments made by a Mass Submitter may switch to another Mass Submitter or may submit an application for an Opinion Letter on its own behalf during the next applicable Submission Period. The IRS will not issue an Opinion Letter with respect to amendments made between applicable Submission Periods, and a Mass Submitter should not submit an application between applicable Submission Periods for an Opinion Letter with respect to plan amendments. Instead, the Mass Submitter must submit a restated plan, including the amendments, during the next Cycle.

.05 Expeditious processing accorded Mass Submitter plans . Subject to section 16, all Mass Submitters’ plans, including approved plans of a Mass Submitter adopted by Providers, will be accorded more expeditious processing than plans submitted by non-Mass Submitters, to the extent administratively feasible.