Short Form Application for Determination for Minor Amendment of Employee Benefit Plan

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Instructions for Form 6406

9:53 - 31-AUG-2004

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Instructions for Form 6406

Department of the Treasury
Internal Revenue Service

(Rev. June 2004)
Short Form Application for Determination for Minor Amendment of Employee
Benefit Plan
(Section references are to the Internal Revenue Code unless otherwise noted.)

Public Inspection. Form 6406 is
open to public inspection if there are
more than 25 plan participants. The
total number of participants must be
shown on line 4e. See the
instructions for line 4e for a definition
of participant.
Disclosure Request by Taxpayer.
The Tax Reform Act of 1976 permits
a taxpayer to request the IRS to
disclose and discuss the taxpayer’s
return and/or return information with
any person(s) the taxpayer
designates in a written request. Use
Form 2848, Power of Attorney and
Declaration of Representative or
Form 8821, Tax Information
Authorization, for this purpose.

A Change To Note
The form and instructions have
undergone minor changes. Review
these documents before completing
the application.

How To Get Forms and
Publications
By personal computer. You can
access the IRS website 24 hours a
day, 7 days a week at www.irs.gov to:
• Download forms, instructions, and
publications;
• See answers to frequently asked
tax questions;
• Search publications on-line by topic
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• Send us comments or request help
by email; and
• Sign up to receive local and
national tax news by email.
You can also reach us using file
transfer protocol at ftp.irs.gov.
CD-ROM. Order Pub. 1796, Federal
Tax Products on CD-ROM, and get:
• Current year forms, instructions,
and publications;
• Prior year forms, instructions, and
publications;
• Popular tax forms that may be filled
in electronically, printed out for
submission, and saved for
recordkeeping; and
• The Internal Revenue Bulletin.

Buy the CD-ROM on the Internet
at www.irs.gov/cdorders from the
National Technical Information
Service (NTIS) for $22, shipping and
handling included.
By phone and in person. You can
order forms and publications 24 hours
a day, 7 days a week, by calling
1-800-TAX- FORM (1-800-829-3676).
You can also get most forms and
publications at your local IRS office.
For questions regarding this form,
call the Employee Plans Customer
Service, toll-free, at 1-877-829-5500
between 8:00 a.m. and 6:30 p.m.
eastern time.

Use Form 5300, Application for
Determination for Employee Benefit
Plan or Form 5307, Application for
Determination for Adopters of Master
or Prototype or Volume Submitter
Plans, instead of Form 6406 to ask
for approval of an amendment for:
• A plan restatement. A plan is
required to be restated if four or more
amendments have been made to the
plan. For restatement purposes, an
amendment that makes only
nonsubstantive plan changes is not
counted as a plan amendment.
• An amendment to comply with
GUST as provided in section 3.05 of
Rev. Proc. 2000-27, 2000-26, I.R.B.
1272.

of Plan
General Instructions Type
• A Defined Contribution Plan (DCP)
Purpose of Form
File Form 6406 to apply for a
determination for a minor amendment
of a plan that has already received a
favorable determination letter.
However, file Form 5300 instead of
Form 6406 if the plan is filing to
comply with GUST (that is, the Small
Business Job Protection Act of 1996
and other laws).
A minor amendment does not
include an amendment that involves a
significant change to plan benefits or
coverage or that may affect other
portions of the plan so as to cause
disqualification. For example, an
amendment to add an ESOP or cash
or deferred arrangement to a plan is
not a minor amendment.
Use Form 5310, Application for
Determination for Terminating Plan,
instead of Form 6406 to ask for
approval of an amendment that
results in a plan termination.
File Form 5310-A, Notice of Plan
Merger or Consolidation, Spinoff, or
Transfer of Plan Assets or Liabilities;
Notice of Qualified Separate Lines of
Business, to report a:
• Merger,
• Consolidation, or
• Transfer of plan assets or liabilities
to another plan.
Cat. No. 24501W

is a plan that provides an individual
account for each participant and for
benefits based only:
1. On the amount contributed to
the participant’s account, and
2. Any income, expenses, gains
and losses, and any forfeitures of
accounts of other participants that
may be allocated to the participant’s
account.
• A Defined Benefit Plan (DBP) is
any plan that is not a DCP.
Note: A qualified plan must satisfy
section 401(a) including, but not
limited to, participation, vesting,
nondiscriminatory contributions or
benefits, distributions, and
contribution and benefit limitations.

Who May File
In general, file Form 6406 only if the
plan has an outstanding favorable
determination letter covering GUST.
This form may be filed by any:
• Employer, including a sole
proprietor, partnership, plan sponsor
or plan administrator to request a
determination letter on the
qualification of a minor amendment to
their plan.
• Plan sponsor or plan administrator
to request a determination letter as to
the qualification of an amendment of
a plan that involves:

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Instructions for Form 6406

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1. A controlled group of
corporations (section 414(b)), or
2. Trades or businesses under
common control (section 414(c)), or
3. An affiliated service group
(section 414(m)).
This form may be filed to obtain a
determination letter on:
• The qualification of minor
amendments of individually designed
plans (including volume submitter
plans) or
• An M&P plan that is amended only
through the choice of elections
offered under the approved adoption
agreement.

Who May Not File
A minor amendment does not include
an amendment that involves a
significant change to plan benefits or
coverage or that may affect other
portions of the plan so as to cause
disqualification.
Example: An amendment to add
an ESOP or cash or deferred
arrangement to a plan is not a minor
amendment.
This form may not be filed by
anyone asking for approval of an
amendment, if:
• The amendment results in a:
1. Plan termination,
2. Partial termination,
3. Merger,
4. Consolidation, or
5. A transfer of plan assets or
liabilities to another plan.
• The plan is restated. A plan is
required to be restated if four or more
amendments have been made to the
plan. For restatement purposes, an
amendment making only
nonsubstantive plan changes is not
counted as a plan amendment.
• You are requesting a ruling
regarding leased employees. File
Form 5300 instead of Form 6406.
• You are amending the plan to
comply with GUST, as provided in
Rev. Proc. 2000-27, Section 3.05.
• Use the appropriate Form 5300
series form, if Form 6406 may not be
used.

Where To File
File Form 6406 at the address
indicated below:
Internal Revenue Service Center
P.O. Box 192
Covington, KY 41012 –0192
Requests shipped by express mail or
a delivery service should be sent to:
Internal Revenue Service Center
201 West Rivercenter Blvd.
Attn: Extracting Stop 312

Covington, KY 41011.
Private Delivery Services. In
addition to the United States mail,
you can use certain private delivery
services designated by the IRS to
meet the “timely mailing as timely
filing/paying” rule for tax returns and
payments. The most recent list of
designated private delivery services
was published by the IRS in
September 2002 and includes only
the following:
• Airborne Express (Airborne):
Overnight Air Express Service, Next
Afternoon Service, Second Day
Service;
• DHL Worldwide Express (DHL):
DHL “Same Day” Service, DHL USA
Overnight;
• Federal Express (FedEx): FedEx
Priority Overnight, Fed Ex Standard
Overnight, Fed Ex 2Day, Fed Ex
International Priority, and Fed Ex
International First.
• United Parcel Service (UPS): UPS
Next Day Air, UPS Next Day Air
Saver, UPS 2nd Day Air, UPS 2nd
Day Air A.M., UPS Worldwide
Express Plus, and UPS Worldwide
Express.
The private delivery service can
tell you how to get written proof of the
mailing date.

How to Complete the
Application
Applications are screened for
completeness. The application must
be signed by the employer, plan
administrator or authorized
representative. Incomplete
applications may be returned to the
applicant. For this reason, it is
important that an appropriate
response be entered for each line
item (unless instructed otherwise). In
completing the application, pay
careful attention to the following:
• N/A (not applicable) is accepted as
a response only if an N/A block is
provided.
• If a number is requested, a number
must be entered.
• If an item provides a choice of
boxes to check, check only one box
unless instructed otherwise.
• If an item provides a box to check,
written responses are not acceptable.
• Governmental plans and
nonelecting church plans do not have
to complete line 9a.
• The IRS may, at its discretion,
require additional information or the
appropriate replacement Form 5300
series application and applicable user
fee any time it is deemed necessary.
-2-

Note. Rev. Proc. 2004-6 publishes
the guidance under which the
determination letter program is
administered. It is updated annually
and can be found in the Internal
Revenue Bulletin (I.R.B.) Example.
Rev. Proc. 2004-6, 2004-1 I.R.B. 197
superseded Rev. Proc. 2003-6.

What To File
All applications must contain an
original signature and must be
accompanied by the following
applicable items:
• The appropriate user fee, if
applicable, and Form 8717, User Fee
for Employee Plan Determination
Letter Request. Please submit a
separate check for each application.
Make checks payable to the “United
States Treasury.”
• A copy of the plan’s latest
determination letter including any
addendum.
• A copy of the new amendments or
adoption agreement.
• If the plan is a master or prototype
or volume submitter plan, include a
copy of the opinion or advisory letter.
Note. If a new adoption agreement is
submitted, include a statement
specifying which section has
changed.
• A statement as to how the
amendments or changes in the
adoption agreement elections affect
or change the plan or any other plan
maintained by the employer.

Specific Plans —
Additional Requirements
(See Procedural Requirements
Checklist.)
• For plans of controlled groups of
corporations, trades or businesses
under common control, and affiliated
service groups submit the statement
specified in the instructions for lines
6a and 6b.
• For a governmental or nonelecting
church plan, line 9a does not have to
be completed.

Specific Instructions
Line 1a. Enter the name, address,
and telephone number of the plan
sponsor/employer. A plan sponsor
means:
• In the case of a plan that covers
the employees of one employer, the
employer;
• In the case of a plan maintained by
two or more employers (other than a
plan sponsored by a group of entities

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Instructions for Form 6406

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required to be combined under
section 414(b), (c) or (m)), the
association, committee, joint board of
trustees or other similar group of
representatives of those who
established or maintain the plan;
• In the case of a plan sponsored by
two or more entities required to be
combined under sections 414(b), (c)
or (m), one of the members
participating in the plan; or
• In the case of a plan that covers
the employees and/or partner(s) of a
partnership, the partnership.
The name of the plan sponsor/
employer should be the same name
that was or will be used when the
Form 5500 or Form 5500-EZ is filed
for the plan.
Address. Include the suite, room, or
other unit number after the street
address. If the Post Office does not
deliver mail to the street address and
the plan has a P.O. box, show the
box number instead of the street
address. The address should be the
address of the sponsor/employer.
Line 1b. Enter the 9-digit employer
identification number (EIN) assigned
to the plan sponsor/employer. This
should be the same EIN that was or
will be used when the Form 5500 or
Form 5500-EZ is filed for the plan. Do
not use a social security number or
the EIN of the trust. For a
multiple-employer plan, the EIN for
the application for the plan should be
the same EIN that was or will be used
when the Form 5500 is filed by the
employer.
File Form SS-4, Application for
Employer Identification Number, to
apply for an EIN. Form SS-4 can be
obtained by calling
1-800-TAX-FORM.
The plan of a group of entities
required to be combined under
section 414(b), (c), or (m) whose
sponsor is more than one of the
entities required to be combined
should only enter the EIN of one of
the sponsoring members. This EIN
must be used in all subsequent filings
of determination letter requests and
annual returns/reports unless there is
a change of sponsor.
Line 1c. Enter the two digits
representing the month the
employer’s tax year ends. This is the
employer whose EIN was entered on
line 1b.
Line 2. The contact person will
receive copies of all correspondence
as authorized in a power of attorney,
Form 2848, or other written
designation. Either complete the

contact’s information on this line, or
check the box and attach a power of
attorney or other written designation.
Line 3b. Form 6406 generally may
not be used if the plan has not
received a favorable determination
letter that takes into account GUST.
Line 3c. Section 3001 of ERISA
requires the applicant to provide
evidence that each employee who
qualifies as an interested party has
been notified of the filing of the
application. If “Yes” is checked, it
means that each employee has been
notified as required by Regulations
section 1.7476-1 or this is a
one-person plan. A copy of the notice
is not required to be attached to this
application. If “No” is checked or this
line is blank, your application will be
returned.
Rules defining ‘‘interested parties’’
and the form of notification are in
Regulations section 1.7476-1. For an
example of an acceptable format, see
Rev. Proc. 2004-6, 2004-1 I.R.B. 197.
Line 4b. Enter the three-digit
number, beginning with ‘‘001’’ and
continuing in numerical order for each
plan you adopt (001-499). This
numbering will differentiate your
plans. The number assigned to a plan
must not be changed or used for any
other plan. This should be the same
number that was or will be used when
the Form 5500 or Form 5500-EZ is
filed for the plan.
Line 4c. “Plan year” means the
calendar, policy, or fiscal year on
which the records of the plan are
kept.
Line 4e. Enter the total number of
participants. A participant means:

• The total number of employees
participating in the plan including
employees under a section 401(k)
qualified cash or deferred
arrangement who are eligible but do
not make elective deferrals,
• Retirees and other former
employees who have a nonforfeitable
right to benefits under the plan, and
• The beneficiary of a deceased
employee who is receiving or will in
the future receive benefits under the
plan. Include one beneficiary for each
deceased employee regardless of the
number of individuals receiving
benefits.
Example: Payment of a
deceased employee’s benefit to three
children is considered a payment to
one beneficiary.
-3-

Line 5. Cash balance or similar
plan. For this purpose, a ‘‘cash
balance’’ formula is a benefit formula
in a defined benefit plan by whatever
name (for example, personal account
plan, pension equity plan, life cycle
plan, cash account plan, etc.) that
rather than, or in addition to,
expressing the accrued benefit as a
life annuity commencing at normal
retirement age, defines benefits for
each employee in terms more
common to a defined contribution
plan such as a single sum distribution
amount (for example, 10 percent of
final average pay times years of
service, or the amount of the
employee’s hypothetical account
balance).
Lines 6a and 6b. If the plan
employer is a member of a controlled
group of corporations, trades or
businesses under common control, or
an affiliated service group, all
employees of the group will be
treated as employed by a single
employer for purposes of certain
qualification requirements.
Attach a statement showing in
detail:
• All members of the group;
• Their relationship to the plan
employer;
• The type(s) of plan(s) each
member has; and
• Plans common to all members.
Line 9a. Section 411(d)(6) protected
benefits include:
• The accrued benefit of a participant
as of the later of the amendment’s
adoption date or effective date; and
• Any early retirement benefit,
retirement-type subsidy or optional
form of benefit for benefits from
service before such amendment.
If the answer is “Yes,” explain on
an attachment how the amendment
satisfies one of the exceptions to the
prohibition on reduction or elimination
of section 411(d)(6) protected
benefits.
Privacy Act and Paperwork
Reduction Act Notice. We ask for
the information on this form to carry
out the Internal Revenue laws of the
United States. We need it to
determine whether your defined
benefit or defined contribution plan,
as amended, qualifies for approval
under section 401(a) of the Internal
Revenue Code and is exempt from
taxation under section 501(a) of the
Code. Section 6109 of the Code
requires you to provide your taxpayer
identification number. Routine uses of

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Instructions for Form 6406

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The type and rule above prints on all proofs including departmental reproduction proofs. MUST be removed before printing.

the information provided on this form
include giving it to the Department of
Justice for civil and criminal litigation
and to other Federal agencies, as
provided by law. We may disclose the
information to cities, states, the
District of Columbia, and U.S.
Commonwealths or possessions to
administer their tax laws. We may
also disclose this information to other
countries under a tax treaty, or to
Federal and state agencies to enforce
Federal nontax criminal laws and to
combat terrorism. The authority to
disclose information to combat
terrorism expired on December 31,
2003. Legislation is pending that
would reinstate this authority. If you
do not provide all of the information
requested on this form, we may be
unable to make a determination with
respect to your amendment. If you
provide false or fraudulent
information, you may be subject to
penalties.

You are not required to provide the
information requested on a form that
is subject to the Paperwork Reduction
Act unless the form displays a valid
OMB control number. Books or
records relating to a form or its
instructions must be retained as long
as their contents may become
material in the administration of any
Internal Revenue law. Generally, tax
returns and return information are
confidential, as required by section
6103.
The time needed to complete and
file this form will vary depending on
individual circumstances. The
estimated average time is:
Recordkeeping . . . . .

14 hr., 21 min.

Learning about the law
or the form . . . . . . .

2 hr., 13 min.

-4-

Preparing the form . . .

4 hr., 25 min.

Copying, assembling,
and sending the form
to the IRS . . . . . . . .

32 min.

If you have comments concerning
the accuracy of these time estimates
or suggestions for making this form
simpler, we would be happy to hear
from you. You can write to the
Internal Revenue Service, Tax
Products Coordinating Committee,
SE:W:CAR:MP:T:T:SP, 1111
Constitution Ave. N.W., Washington,
D.C. 20224. Do not send the form to
this office. Instead, see Where To
File on page 2.