SECTION 3. IN WHAT

FORM IS ADVICE PROVIDED BY EMPLOYEE PLANS RULINGS AND AGREEMENTS?

In general .01 Employee Plans Rulings and Agreements provides advice in the form of letter rulings, closing agreements, compliance statements, determination letters, opinion letters, nonbank trustee approval letters, and oral advice.

Letter ruling .02 A “letter ruling” is a written statement issued to a taxpayer by Employee Plans Rulings and Agreements that interprets and applies the tax laws or any nontax laws applicable to employee plans to the taxpayer’s specific set of facts. Once issued, a letter ruling may be revoked or modified for any number of reasons, as described in section 29 of this revenue procedure, unless it is accompanied by a “closing agreement.”

Closing agreement .03 A “closing agreement” is a final agreement between the Service and a taxpayer on a specific issue or liability. It is entered into under the authority in § 7121 and is final unless fraud, malfeasance, or misrepresentation of a material fact can be shown.

A closing agreement may be entered into if it is advantageous to have the matter permanently and conclusively closed, or if a taxpayer can show that there are good reasons for an agreement and that making the agreement will not prejudice the interests of the Government. In appropriate cases, taxpayers may be asked to enter into a closing agreement as a condition to the issuance of a letter ruling.

In appropriate cases, a closing agreement may be entered into with sponsors of pre-approved plans.

A closing agreement may also be entered into with respect to retirement plan failures corrected under EPCRS, as set forth in Rev. Proc. 2021-30.

Determination letter .04 A “determination letter” is a written statement issued to a taxpayer by Employee Plans Rulings and Agreements that applies the principles and precedents previously announced to a specific set of facts. It is issued only if a determination can be made based on clearly established rules in the statute, a tax treaty, or the regulations, or based on a conclusion in a revenue ruling,

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opinion, or court decision that represents the position of the Service, and that specifically answers the questions presented. Employee Plans Rulings and Agreements issues determination letters on the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans under § 401(a), 403(a), 409, or 4975(e)(7), and (except with respect to an adopting employer of a pre-approved plan requesting a determination letter under section 12.03 or 12.04(2) of this revenue procedure) the status for exemption of any related trusts or custodial accounts under § 501(a). Employee Plans Rulings and Agreements also accepts determination letter applications for § 403(b) individually designed plans pursuant to the schedule described in section 1.03(1)(a) of this revenue procedure.

Opinion letter .05

(1) For applications submitted with respect to Cycle 3 for defined benefit qualified pre-approved plans, an opinion letter is a written statement issued by Employee Plans Rulings and Agreements to a provider or mass submitter as to the qualification in form of a pre-approved plan under § 401(a), § 403(a), or both §§ 401(a) and 4975(e)(7). See Rev. Proc. 2017-41.

(2) For applications submitted with respect to Cycle 4 (and subsequent cycles) for defined contribution qualified pre-approved plans and defined benefit qualified pre-approved plans, an opinion letter is a written statement issued by Employee Plans Rulings and Agreements to a provider or mass submitter as to the qualification in form of a pre-approved plan under § 401(a), 403(a), 409, or 4975(e)(7). See Rev Proc. 2023-37.

(3) An opinion letter will also be issued as to the acceptability of the form of a § 403(b) preapproved plan for Cycle 2. See Rev. Proc. 2021-37.

(4) Announcement 2022-6 temporarily suspends the opinion letter program for prototype IRAs (traditional, Roth, and SIMPLE IRAs), SEPs (including salary reduction SEPs (SARSEPs)), and SIMPLE IRA plans. Under the IRA prototype program, an opinion letter will be issued concerning the conformance of a prototype trust, custodial account, or individual annuity with the requirements of § 408(a), (b), (k), or (p) or § 408A, as applicable. See Rev. Proc. 87-50, 1987-2 CB 647; Rev. Proc. 91-44, 1991-2 CB 733; Rev. Proc. 92-38, 1992-1 CB 859; Rev. Proc. 97-29, 1997-1 CB 698; Rev. Proc. 98-59, 1998-2 CB 729; Rev. Proc. 2002-10, 2002-1 CB 401; and Rev. Proc. 2010-48, 2010-50 IRB 828 (pre-approved IRAs), as modified by Appendix A of this revenue procedure.

Oral advice .06 Oral advice is advisory only and is not binding on the Service.

(1) No oral rulings and no written rulings in response to oral requests.

(2) Discussion possible on substantive issues.

The Service does not orally issue rulings or determinations, nor does it issue letter rulings or determination letters in response to oral requests from taxpayers. Service employees ordinarily will discuss with taxpayers or their representatives inquiries about whether the Service will rule on particular issues and about procedural matters regarding the submission of requests for letter rulings or determination letters.

At the discretion of the Service and as time permits, Service employees may also discuss substantive issues with taxpayers or their representatives. Such a discussion will not bind the Service or the Office of Associate Chief Counsel, and it cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b).

Service employees who are not directly involved in the examination, appeal, or litigation of particular substantive tax issues will not discuss those issues with taxpayers or their representatives

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Nonbank trustee approval letters

Compliance statement