SECTION 25. ADOPTING — Internal Revenue Bulletin 2023-51

.01 In general . To the extent permitted in this section 25, an Adopting Employer may obtain reliance that the form of the plan satisfies the Qualification Requirements or Section 403(b) Requirements, as applicable, by applying for a determination letter. Section 25.02 provides the rules for applying for a determination letter submitted on Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans, for review of a Pre-approved Plan using the applicable Cumulative List. Section 25.03 provides the rules for applying for a determination letter submitted on Form 5300, Application for Determination for Employee Benefit Plan, for review of a Pre-approved Plan using the applicable Cumulative List. Section 25.04 provides the rules for applying for a determination letter submitted on Form 5300 for review of a plan treated as an individually designed plan using the Required Amendments List. Section 25.05 provides the rules for applying for a determination letter for a partial termination.

.02 Form 5307 application: eligibility to file, timing, and scope of review .

(1) Eligibility to file .

(a) In general . Except as set forth in section 25.02(1)(b), the following Adopting Employers may use a Form 5307 to apply for a determination letter:

(i) An Adopting Employer of a Nonstandardized Plan that makes modifications to the terms of the plan that are not extensive (amendments are considered extensive if the IRS determines, in its sole discretion, that the plan of the Adopting Employer is no longer substantially similar to the Nonstandardized Plan of the Provider (see section 25.03(1)(a)(vi) for treatment of changes that are extensive and section 25.04(1)(a) for treatment of changes that cause a plan to be treated as individually designed)); or

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(ii) An Adopting Employer of any Pre-approved Plan that amends its plan solely to add language to satisfy the requirements of § 415 (and § 416, in the case of a Qualified Pre-approved Plan) due to the required aggregation of plans.

(b) Exceptions . Notwithstanding the provisions of section 25.02(1)(a), determination letter applications for the following plans must be filed on Form 5300 (if otherwise permitted):

(i) Any determination letter application with respect to a multiple employer Qualified Pre-approved Plan (instead, see section 25.03 and .04);

(ii) A determination letter application for a Nonstandardized Plan that is a Qualified Pre-approved Plan, a pension plan, and not a Governmental Plan in which the normal retirement age is lower than the age 62 safe harbor in § 1.401(a)‑1(b)(2), that requests reliance on whether the plan satisfies § 1.401(a)‑1(b)(2) (instead, see section 25.03(1)(a)(ii) or (iv));

(iii) A determination letter application for a Nonstandardized Plan that is a Qualified Pre-approved Plan, a pension plan, and a Governmental Plan in which the normal retirement age does not satisfy any of the safe harbors described in § 1.401(a)‑1(b)(2)(v) of the proposed regulations, that requests reliance on whether the plan satisfies § 1.401(a)-1(b)(2) of the proposed regulations (instead, see section 25.03(1)(a)(iii) or (v)); or

(iv) A determination letter application for a Nonstandardized Plan regarding a partial termination (instead, see section 25.05).

(c) Prior favorable determination letter . An Adopting Employer eligible to file for a determination letter submitted on Form 5307 may file on a Form 5307 regardless of whether a prior favorable determination letter has been issued with respect to the plan.

(d) Copy of Opinion Letter . An Adopting Employer must include a copy of the Opinion Letter for the Pre-approved Plan. See section 13 of Rev. Proc. 2023-4 (as updated annually).

(2) Timing . An Adopting Employer of a Pre-approved Plan for a Cycle that is eligible to file for a determination letter submitted on Form 5307 generally must file during the Employer Adoption Window for the Cycle. However, if the Adopting Employer had not previously adopted a Pre-approved Plan that had received an Opinion Letter for the preceding Cycle, the Adopting Employer has until the start of the Employer Adoption Window for the next Cycle to apply for a determination letter submitted on Form 5307. For example, if an Employer did not previously adopt a Cycle 2 Pre-approved Plan, adopts a Cycle 3 Nonstandardized Plan, and makes amendments that are not extensive, the Adopting Employer will not be limited to the Cycle 3 Adoption Window to file for a Form 5307 determination letter (for example, the Adopting Employer may have adopted the Cycle 3 Nonstandardized Plan for the first time after the Cycle 3 Adoption Window). Instead, the Adopting Employer has until the start of the Cycle 4 Employer Adoption Window to file for a Form 5307 determination letter for the Cycle 3 plan. If the Adopting Employer then adopts a newly approved Cycle 4 Nonstandardized Plan during the Cycle 4 Employer Adoption Window and makes amendments that are not extensive, the Employer only has until the end of the Cycle 4 Employer Adoption Window to file for a Form 5307 determination letter for the Cycle 4 plan.

(3) Scope of Review . For a determination letter submitted on a Form 5307, the Adopting Employer’s plan is reviewed using the Cumulative List that was used to review the underlying Pre-approved Plan.

.03 Form 5300 application filed by an Adopting Employer for a plan treated as a Pre-approved Plan: eligibility to file, timing, and scope of review using Cumulative List .

(1) Eligibility to file .

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(a) In general . The following Adopting Employers must use a Form 5300 to apply for a determination letter under this section 25.03:

(i) An Adopting Employer that is the controlling member of a multiple employer Nonstandardized Plan that is a Qualified Pre-approved Plan and that has made modifications to the terms of the plan that are not extensive (see section 13.05(4));

(ii) For a Qualified Pre-approved Plan that is a pension plan and not a Governmental Plan with a normal retirement age that is lower than the age 62 safe harbor in § 1.401(a)-1(b)(2), an Adopting Employer (or, if the plan is a multiple employer qualified plan, the controlling member) that files a determination letter request that is limited to a determination as to whether a plan’s normal retirement age satisfies the requirements of § 1.401(a)-1(b)(2);

(iii) For a Qualified Pre-approved Plan that is a pension plan and a Governmental Plan with a normal retirement age that does not satisfy any of the safe harbors described in § 1.401(a)-1(b) (2)(v) of the proposed regulations, an Adopting Employer (or, if the plan is a multiple employer qualified plan, the controlling member) that files a determination letter request that is limited to a determination as to whether a plan’s normal retirement age satisfies the requirements of § 1.401(a)-1(b)(2) of the proposed regulations;

(iv) For a Nonstandardized Plan that is a Qualified Pre-approved Plan, a pension plan, and not a Governmental Plan in which the normal retirement age under the plan is lower than the age 62 safe harbor, an Adopting Employer (or, if the plan is a multiple employer qualified plan, the controlling member) that files a determination letter request that includes, but is not limited to, whether the plan satisfies § 1.401(a)-1(b)(2), and that has made additional modifications to the terms of the plan that are not extensive; or

(v) For a Nonstandardized Plan that is a Qualified Pre-approved Plan, a pension plan, and a Governmental Plan in which the normal retirement age does not satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations, an Adopting Employer (or, if the plan is a multiple employer qualified plan, the controlling member) that files a determination letter request that includes, but is not limited to, whether the plan satisfies § 1.401(a)‑1(b)(2) of the proposed regulations, and that has made additional modifications to the terms of the plan that are not extensive.

(vi) An Adopting Employer of a Nonstandardized Plan that makes modifications to the terms of the plan that are extensive (see section 25.02(1)(a)(i) for what changes will be determined to be extensive and section 13.05(4) for changes that cause a plan to be treated as individually designed and thus subject to section 25.04(1)(a)).

(b) Prior favorable determination letter . An Adopting Employer eligible to file for a determination letter submitted on Form 5300 under this section 25.03 may file on a Form 5300 under this section 25.03 regardless of whether a prior favorable determination letter has been issued with respect to the plan.

(c) An Adopting Employer that applies for a determination letter for a Pre-approved Plan for one or more of the reasons described in section 25.03(1)(a) must identify the applicable reason(s) in a cover letter to the application and include a copy of the Opinion Letter for the Pre-approved Plan.

(2) Timing . For each Cycle, an Adopting Employer that is eligible to file for a determination letter submitted on Form 5300 under this section 25.03 generally must file the determination letter application during the Employer Adoption Window for the Cycle. However, if the Adopting Employer had not previously adopted a Pre-approved Plan that had received an Opinion Letter for the preceding Cycle, the Adopting Employer has until the start of the Employer Adoption Window for the next Cycle to apply for a determination letter submitted on Form 5300 under this section 25.03. For example, if a controlling member of a multiple employer plan did not previously adopt a Cycle 2 Pre-approved Plan, adopts a Cycle 3 Nonstandardized Plan, and makes amendments that are not extensive, the Adopting Employer will not be limited to the Cycle 3 Adoption Window to

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file for a Form 5300 determination letter (for example, the Employer may have adopted the Cycle 3 Nonstandardized Plan for the first time after the Cycle 3 Adoption Window). Instead, the Adopting Employer has until the start of the Cycle 4 Employer Adoption Window to file for a Form 5300 determination letter under this section 25.03 for the Cycle 3 plan. If the Adopting Employer then adopts a newly approved Cycle 4 Nonstandardized Plan during the Cycle 4 Employer Adoption Window and makes amendments that are not extensive, the Employer only has until the end of the Cycle 4 Employer Adoption Window to file for a Form 5300 determination letter under this section 25.03 for the Cycle 4 plan.

(3) Scope of Review . For a determination letter submitted on Form 5300 under this section 25.03, the Adopting Employer’s plan is reviewed using the Cumulative List that was used to review the underlying Pre-approved Plan.

.04 Form 5300 application filed by an Adopting Employer for a plan treated as individually designed: eligibility to file, timing, and scope of review using the Required Amendments List .

(1) Eligibility to file .

(a) In general . An Adopting Employer whose plan is treated as individually designed pursuant to section 13.05 (for example, if the Adopting Employer makes amendments that, due to the nature and extent of the amendments, result in the IRS determining that the plan should be treated as individually designed, as described in section 13.05(4)) must use a Form 5300 to apply for a determination letter under this section 25.04:

(b) If eligible under Rev. Proc. 2022-40, including the criteria that the plan previously had not been filed for a determination letter submitted on a Form 5300 and had not been issued a determination letter as an individually designed plan.

(2) Timing . At any time, to the extent permitted under Rev. Proc. 2022-40.

(3) Scope of Review . In accordance with Rev. Proc. 2022-40, the plan is reviewed based on the Required Amendments List that was issued during the second calendar year preceding the submission of the determination letter application.

.05 Form 5300 application for a partial termination . An Adopting Employer of a Qualified Preapproved Plan (or, if the plan is a multiple employer plan, the controlling member) that requests a determination regarding partial termination must file using Form 5300. 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. If the request is limited to whether a partial termination has occurred, the Employer may file on Form 5300 at any time, regardless of whether the Employer is otherwise eligible to submit a determination letter application. If the request is not limited to whether a partial termination has occurred, the Employer must be otherwise eligible to submit a determination letter application pursuant to Rev. Proc. 2022-40.

.06 Procedures provided in annual revenue procedure . Determination letter filing procedures are set forth in Rev. Proc. 2023-4, which is updated annually.