106. Reliance on Opinion Letter

Statement of Requirement: Rev. Proc. 2023-37, 12.02

Document Provision: _____

(Note to reviewer: This sample language, or a similar provision, must appear in all Nonstandardized Plans in close proximity to the employer's signature line.)

173 | Defined Benefit Plan LRM Package 06/2026

Sample Adoption Agreement Language:

An Adopting Employer may rely on the Opinion Letter issued to this Plan by the Internal Revenue Service as evidence that the plan is qualified under IRC 401 only if (a) the plan has a currently valid Opinion Letter, (b) the Employer’s plan is identical to the Pre-Approved Plan, and (c) the employer has not amended the plan other than to choose from among options provided under the plan or to make limited amendments consistent with maintaining a PreApproved Plan.

An Adopting Employer may not rely on an Opinion Letter with respect to compliance with (a) the nondiscrimination requirements of IRC 401(a)(4), IRC 401(l), IRC 410(b), or IRC 414(s); or (b) the limitations on benefits and contributions and top-heavy plan requirements under IRC 415 and 416, where the Employer maintains or has ever maintained another plan covering the same participants.

An Adopting Employer may rely on the Opinion Letter with respect to the minimum participation requirements of IRC 401(a)(26) and the minimum coverage requirements of IRC 410(b) if all nonexcludable employees benefit under the plan, and/or the plan satisfies the requirements of IRC 401(a)(26) with respect to its prior benefit structure (or is deemed to satisfy IRC 401(a)(26) pursuant to regulations thereunder).

An Adopting Employer of a plan that contains a Cash Balance Formula with a structure of Principal Credits that increase with age, service, or any other measure during a participant’s employment may not rely on the Opinion Letter with respect to the requirements of IRC 411(b) (1).

An Adopting Employer may not rely on the Opinion Letter in certain other circumstances which are specified in the Opinion Letter issued with respect to the plan and in Rev. Proc. 2023-37.

(Note to reviewer: If the plan provides benefits using one of the design-based safe harbors in Treas. Reg. 1.401(a)(4)-3(b)(3), (4), or (5), and the plan defines compensation using a definition that satisfies Treas. Reg. 1.414(s)-1(c), then the employer may rely on the Opinion Letter issued to a Nonstandardized Plan with respect to the nondiscriminatory amounts requirement under IRC 401(a)(4). See LRM #6 and LRM #108.)