SECTION 22. WHAT

ARE THE STEPS FOR EXHAUSTING ADMINISTRATIVE REMEDIES (QUALIFIED PLANS ONLY)?

In general

Steps for exhausting administrative remedies

(3) Any oral representation or modification of the facts as represented or alleged in the application for determination or in a comment filed by an interested party, which is not reduced to writing, shall not become a part of the administrative record, and shall not be taken into account in the determination of the qualified status of the retirement plan by EP Determinations or the Independent Office of Appeals.

.04 In the case of final determination, the notice of final determination shall be one of the following:

(1) The letter issued by EP Determinations or the Independent Office of Appeals which states that the applicant’s plan satisfies the qualification requirements of the Code, or, in the case of a § 403(b) plan, meets the requirements of § 403(b). The favorable determination letter will be sent by certified mail in situations in which an interested party, the DOL, or the PBGC has commented on the application for determination.

(2) The letter issued, by certified mail, by EP Determinations or the Independent Office of Appeals subsequent to a letter of proposed determination, stating that the applicant’s plan fails to satisfy the qualification requirements of the Code or, in the case of a § 403(b) plan, fails to satisfy the requirements of § 403(b).

.05 EP Determinations or the Independent Office of Appeals will send the notice of final determination to the applicant, to the interested parties who have previously submitted comments on the application to the Service (or to the persons designated by them to receive such notice), to the DOL if the DOL has submitted a comment, and to the PBGC, if the PBGC has submitted a comment.

.01 For purposes of § 7476(b)(3), a petitioner is deemed to have exhausted the administrative remedies available within the Service upon the completion of the steps described in section 22.02, 22.03, 22.04, or 22.05 of this revenue procedure subject, however, to sections 20A.06 and 20A.07 of this revenue procedure. If applicants, interested parties, or the PBGC do not complete the applicable steps described below, they will not have exhausted their respective available administrative remedies as required by § 7476(b)(3) and will, thus, be precluded from seeking declaratory judgment under § 7476 except to the extent that section 22.05 of this revenue procedure applies.

.02 In the case of an applicant, with respect to any matter relating to the qualification of a plan, the steps referred to in section 22.01 of this revenue procedure are:

(1) Filing a completed application with EP Determinations pursuant to this revenue procedure;

(2) Complying with the requirements pertaining to notice to interested parties as set forth in this revenue procedure and § 1.7476–2; and,

January 2, 2024 222 Bulletin No. 2024–1

Applicant’s request for § 7805(b) relief

(3) Appealing to the Independent Office of Appeals pursuant to § 601.201(o)(6) of the Statement of Procedural Rules, in the event a notice of proposed adverse determination is issued by EP Determinations.

.03 In order for a petitioner to be deemed to have exhausted administrative remedies within the Service with respect to § 7805(b), an applicant must submit a request for relief under § 7805(b) to the agent or specialist assigned to the case in accordance with the procedures in section 23.08 of this revenue procedure.

Interested parties .04 In the case of an interested party or the PBGC, the steps referred to in section 22.01 of this revenue procedure are, with respect to any matter relating to the qualification of the plan, submitting to EP Determinations a comment raising such matter in accordance with section 19A.01(2) of this revenue procedure, or requesting the DOL to submit to EP Determinations a comment with respect to such matter in accordance with section 19A.01(3) of this revenue procedure and, if the DOL declines to comment, submitting the comment in accordance with section 19A.01(4) of this revenue procedure, so that it may be considered by EP Determinations through the administrative process.

Deemed exhaustion of administrative remedies

Service must have reasonable time to act on appeal

Service must have reasonable time to act on request for § 7805(b) relief