92. Reliance on Opinion Letter

Statement of Requirement: Rev. Proc. 2023-37, 12.01

169 | Defined Benefit Plan LRM Package 06/2026

Document Provision: _____

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

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, (c) coverage and contributions or benefits under the employer’s plan are not more favorable for highly compensated employees than for other employees, and (d) 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 Pre-Approved Plan.

An Adopting Employer may rely on the Opinion Letter with respect to the minimum participation requirements of IRC 401(a)(26) only if 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 may not rely on the Opinion Letter with respect to: (a) whether the timing of any amendment to the plan (or series of amendments) satisfies nondiscrimination requirements (except with respect to plan amendments granting past service that meet the applicable safe harbor and are not part of a pattern of amendments that significantly discriminates in favor of highly compensated employees); (b) whether the plan satisfies the effective availability requirement with respect to any benefit, right, or feature; or (c) whether the plan meets the requirements of IRC 415 and IRC 416 if the employer maintains or has at any maintained at any time, another plan that was qualified or determined to be qualified and that covers or covered some of the same participants. The employer may not rely on the Opinion Letter in certain other circumstances specified in the Opinion Letter issued with respect to the plan and in Rev. Proc. 2023-37.

(Note to reviewer: Treas. Reg. 1.401(a)(4)-5 provides rules for determining whether the timing of a plan amendment or series of amendments has the effect of discriminating significantly in favor of current or former highly compensated employees. In general, the Opinion Letter issued to a Standardized Plan may not be relied on as to whether a plan complies with these rules, except and to the extent that a plan amendment grants prior service credit for benefit accrual purposes, and otherwise meets the safe harbor for certain grants of benefits for past periods provided at Treas. Reg. 1.401(a)(4)-5(a)(3). Additionally, an Opinion Letter issued to a Standardized Plan cannot be relied upon as to whether the employer complies with Treas. Reg. 1.401(a)(4)-4(c), requiring that benefits, rights and features provided under the plan cannot be discriminatory and must be effectively available to non-highly compensated employees.)