SECTION 12. WHEN

MAY AN ADOPTER OF A PRE-APPROVED PLAN (STANDARDIZED OR NONSTANDARDIZED) SUBMIT A DETERMINATION LETTER APPLICATION?

Eligibility to apply for a determination letter for a Cycle 3 qualified pre- approved plan under Rev. Proc. 2017-41 and Rev. Proc. 2016-37

Eligibility to apply for a determination letter for a Cycle 2 § 403(b) pre-approved plan under Rev. Proc. 2021-37 and Rev. Proc. 2023-37

Determination letter applications on Form 5307

31 de enero de 2011 (“Puerto Rico Code”) must submit a restatement showing compliance with these lists and the qualification requirements of the Code when submitting a determination letter application.

.05 EP Determinations will consider § 414(x) in issuing determination letters for individually designed plans that consist of a defined benefit plan and a qualified cash or deferred arrangement (subject to the eligibility requirements in section 11.01 of this revenue procedure). A § 414(x) plan sponsor must submit two Forms 5300 and two applicable user fees.

.01 Rev. Proc. 2017-41 ⁵ is applicable to providers of qualified pre-approved plans that submit requests for opinion letters with respect to Cycle 3. Under Rev. Proc. 2017-41, a qualified preapproved plan is either a standardized or a nonstandardized plan. This section 12, in part, provides guidance on the eligibility of an adopting employer of a Cycle 3 qualified pre-approved plan to submit a determination letter application with regard to that plan, under Rev. Proc. 2016-37. The employer adoption window for Cycle 3 defined benefit qualified pre-approved plans, and the window during which a plan sponsor of such a plan may generally apply for a determination letter (on Form 5300 or 5307), is April 1, 2023, through March 31, 2025, pursuant to Announcement 2023-6.

.02 Rev. Proc. 2021-37 is applicable to providers of § 403(b) pre-approved plans that submit requests for opinion letters with respect to Cycle 2. Under Rev. Proc. 2021-37, a § 403(b) preapproved plan is either a standardized or a nonstandardized plan. This section 12, in part, provides guidance on the eligibility of an adopting employer of a § 403(b) pre-approved plan to submit a determination letter application with regard to that plan, under Rev. Proc. 2023-37. The employer adoption window for Cycle 2 § 403(b) pre-approved plans, and the window during which a plan sponsor of such a plan may apply for a determination letter (on Form 5300 or 5307), is January 1, 2025, through December 31, 2026, pursuant to Announcement 2024-38.

.03

(1) Except as provided in section 12.03(3) of this revenue procedure, an adopting employer of a nonstandardized qualified or § 403(b) pre-approved plan that has made modifications to the terms of the pre-approved plan that are not extensive, or an adopting employer of any qualified or § 403(b) pre-approved plan (either standardized or nonstandardized) that amends its pre-approved 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, may file for a determination letter using a Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre‑Approved Plans.

5 The application of this section is limited to applications filed on Form 5307, Application for Determination for Adopters of Modified Nonstandardized Pre-Approved Plans, and Form 5300, Application for Determination for Employee Benefit Plan. For procedures for filing a request for a determination on plan termination, see sections 6 and 15 of this revenue procedure.

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Determination letter applications on Form 5300

(2) An adopting employer eligible to file for a determination letter 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.

See section 13 of this revenue procedure, which sets forth the procedures for adopting employers of qualified and § 403(b) pre-approved plans requesting determination letters on Form 5307.

(3) Determination letter requests for the following qualified pre-approved plans must be filed on Form 5300, Application for Determination for Employee Benefit Plan (if otherwise permitted), regardless of whether they are otherwise described in section 12.03(1) of this revenue procedure:

(a) A request with respect to a multiple employer pre-approved plan;

(b) A request for a nonstandardized pre-approved plan that is a pension plan that is not a governmental plan (within the meaning of § 414(d)) 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) (if an employer modified the plan, the modifications cannot be extensive);

(c) A request for a nonstandardized pre-approved plan that is a pension plan that is a governmental plan (within the meaning of § 414(d)) 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 (if an employer modified the plan, the modifications cannot be extensive); and

(d) A request for a nonstandardized pre-approved plan regarding a partial termination.

.04

(1) An adopting employer of a pre-approved plan whose plan is treated as individually designed pursuant to section 8.06 of Rev. Proc. 2017-41 or section 9.05 of Rev. Proc. 2021-37 (for example, if the adopting employer makes amendments to a standardized plan other than certain permitted amendments, or makes amendments to a nonstandardized plan, that, due to the nature and extent of the amendments, result in the Service determining that the plan should be treated as individually designed) must use a Form 5300 to apply for a determination letter as an individually designed plan, and is subject to the eligibility requirements 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) The following adopting employers of a pre-approved plan, or controlling members, as applicable, may file on Form 5300, regardless of whether a favorable determination letter has been issued with respect to the plan:

(a) The controlling member of a multiple employer qualified plan that makes modifications to its nonstandardized pre-approved plan that are not extensive or that amends its pre-approved plan (whether standardized or nonstandardized) solely to add language to satisfy the requirements of § 415 and § 416 due to the required aggregation of plans;

(b) An adopting employer of a nonstandardized qualified or § 403(b) pre-approved plan that has extensive modifications, but the modifications do not cause the plan to be treated as individually designed as described in section 12.04(1) of this revenue procedure;

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(c) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a qualified pre-approved pension plan (standardized or nonstandardized) that is not a governmental plan (within the meaning of § 414(d)), that files a determination letter request that is limited to a determination as to whether a plan’s normal retirement age that is lower than the age 62 safe harbor in § 1.401(a)‑1(b)(2) satisfies the requirements of § 1.401(a)-1(b)(2);

(d) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a qualified pre-approved pension plan (standardized or nonstandardized) that is a governmental plan (within the meaning of § 414(d)) 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, 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;

(e) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a nonstandardized qualified pre-approved pension plan that is not a governmental plan (within the meaning of § 414(d)) in which the normal retirement age is lower than the age 62 safe harbor, that files a determination letter request that includes, but is not limited to, a determination as 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

(f) An adopting employer (or, if the plan is a multiple employer qualified plan, the controlling member) of a nonstandardized qualified pre-approved pension plan that is a governmental plan (within the meaning of § 414(d)) 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 files a determination letter request that includes, but is not limited to, a determination as 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.

An adopting employer that submits an application for a determination letter for a pre‑approved plan for one or more of the reasons described in this section 12.04(2) must identify the applicable reason(s) in a cover letter to the application and include a copy of the opinion letter.

(3) Special rules. The following special rules apply with regard to the determination letter requests for qualified plans described below:

(a) Leased employees. An adopting employer of a standardized or nonstandardized qualified pre-approved plan (or, if the plan is a multiple employer plan, the controlling member) that is eligible to submit a determination letter on Form 5300 in accordance with this section and Rev. Proc. 2022-40 may also request a determination regarding leased employee status under § 414(n) (see section 17.05 of this revenue procedure).

(b) Partial terminations. An adopting employer of a standardized or nonstandardized qualified pre-approved plan (or, if the plan is a multiple employer plan, the controlling member) that requests a determination regarding partial termination (see section 9.09 of this revenue procedure) must file using Form 5300. 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.

See section 18 of this revenue procedure for procedures for requesting § 401(h) and § 420 determination letters. See section 8.05 of Rev. Proc. 2017-41 regarding the effect of employer

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amendments on the remedial amendment cycle. See section 12.04(1) of this revenue procedure for treatment as an individually designed plan.

Scope of review .05

(1) Determination letter applications filed on Form 5307, as described in section 12.03 of this revenue procedure, or on Form 5300, as described in section 12.04(2) of this revenue procedure, will be reviewed on the basis of the Cumulative List that was used to review the underlying preapproved plan.

(2) Determination letter applications filed on Form 5300 as an individually designed plan, as described in section 12.04(1) of this revenue procedure, will be reviewed based on the Required Amendments List that was issued during the second calendar year preceding the submission of the determination letter application.

Submission period for pre- approved plans

Reliance on a favorable opinion letter equivalent to determination letter

.06 An adopting employer of a pre-approved plan must submit an application for a determination letter (whether on a Form 5300 or Form 5307) during the approximately two-year period in which employers may adopt the pre-approved plan (employer adoption window), as described in section 14.03 of Rev. Proc. 2016-37 and section 25 of Rev. Proc. 2023-37, except with respect to requests limited to partial terminations of qualified pre-approved plans, as noted in section 12.04(3)(b) of this revenue procedure. However, with respect to Cycle 2 § 403(b) pre-approved plans, 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 or 5300. Note that applications described under section 12.04(1) of this revenue procedure (for an adopting employer of a pre-approved plan that is treated as an individually designed plan) may be filed at any time to the extent permitted under Rev. Proc. 2022-40.

.07 If an employer may rely on a favorable opinion letter pursuant to section 7 of Rev. Proc. 2017-41, the opinion letter is equivalent to a favorable determination letter. For example, the favorable opinion letter is treated as a favorable determination letter as provided in section 23 of this revenue procedure, regarding the effect of a determination letter. Rev. Proc. 2017-41 also describes the extent to which adopting employers of such plans may rely on favorable opinion letters without requesting individual determination letters.

Restatement rule .08 A pre-approved plan restatement that generally is effective as of a certain date should not be treated as superseding a previously adopted interim plan amendment that is effective before or after the restatement’s effective date and that has not been incorporated or reflected in the restatement, provided that the pre-approved plan is operated in a manner consistent with the interim plan amendment. A plan is presumed to be operating in compliance with an interim plan amendment in any case in which the operation of the plan cannot be determined.