Revenue Procedure 2012-6

26 CFR 601.201: Rulings and determination letters.

Rev. Proc. 2012–6
TABLE OF CONTENTS
SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

.01 Purpose of revenue procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
.02 Organization of revenue procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
SECTION 2. WHAT CHANGES HAVE BEEN MADE TO THIS PROCEDURE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

.01 In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
.02 Other changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
.03 Other guidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
PART I. PROCEDURES FOR DETERMINATION LETTER REQUESTS
SECTION 3. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN GUIDANCE UNDER THIS
PROCEDURE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

.01 Types of requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
.02 Areas in which determination letters will not be issued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
.03 Submission period for applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
SECTION 4. ON WHAT ISSUES MUST WRITTEN GUIDANCE BE REQUESTED UNDER DIFFERENT
PROCEDURES? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

.01 Tax Exempt and Government Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
.02 Chief Counsel’s revenue procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
SECTION 5. WHAT IS THE GENERAL SCOPE OF A DETERMINATION LETTER? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

.01 Scope of this section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Scope of determination letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Nondiscrimination in amount requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Governmental plans under § 414(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Church plans under § 414(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Tax treatment of certain contributions of § 414(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Other limits on scope of determination letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.08 Affiliated service groups, leased employees and partial terminations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.09 Publication 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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SECTION 6. WHAT IS THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION LETTERS? . . . . . . . . . . . . . . . . . . 205

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Qualified trusteed plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Qualified nontrusteed annuity plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Complete information required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Complete copy of plan and trust instrument required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Section 9 of Rev. Proc. 2012–4 applies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Separate application for each single § 414(l) plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.08 Prior letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.09 User fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.10 Interested party notification and comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.11 Contrary authority must be distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.12 Employer/employee relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.13 Incomplete applications returned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.14 Effect of failure to disclose material fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.15 Where to file requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.16 Submission of related plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.17 Withdrawal of requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.18 Right to status conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.19 How to request status conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2012–1 I.R.B.

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January 3, 2012

SECTION 7. INITIAL QUALIFICATION, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Timing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Application must include copy of plan and amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Restatements required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Controlled group, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 § 414(x) combined plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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SECTION 8. EMPLOYER RELIANCE ON M&P AND VOLUME SUBMITTER PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
.02 Modifications to Revenue Procedure 2011–49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
.03 Reliance equivalent to determination letter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
SECTION 9. DETERMINATION LETTER FILING PROCEDURES FOR M&P AND VOLUME SUBMITTER
PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
.02 Determination letter for adoption of volume submitter plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
SECTION 10. MULTIPLE EMPLOYER PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Options to file for the plan only or for both the plan and employers maintaining the plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Where to file . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Determination letter sent to each employer who files Form 5300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Addition of employers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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SECTION 11. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
SECTION 12. TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS; NOTICE OF MERGERS,
CONSOLIDATIONS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Supplemental information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Compliance with Title IV of ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Termination prior to time for amending for change in law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Restatement not required for terminating plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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SECTION 13. GROUP TRUSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
.02 Required information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
.03 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
SECTION 14. AFFILIATED SERVICE GROUPS; LEASED EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Employer must request the determination under § 414(m) or § 414(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Employer is responsible for determining status under § 414(m) and § 414(n). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Pre-approved plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Required information for § 414(m) determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Required information for § 414(n) determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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SECTION 15. WAIVER OF MINIMUM FUNDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Applicability of Rev. Proc. 2004–15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Waiver request submitted to EP Technical . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Waiver and determination letter request submitted to EP Technical . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Handling of the request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 When waiver request should be submitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

216
216
216
216
217
217

SECTION 16. SECTION 401(h) AND § 420 DETERMINATION LETTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

January 3, 2012

198

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.01 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
.02 Required information for § 401(h) determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
.03 Required information for § 420 determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
PART II. INTERESTED PARTY NOTICE AND COMMENT
SECTION 17. WHAT RIGHTS TO NOTICE AND COMMENT DO INTERESTED PARTIES HAVE? . . . . . . . . . . . . . . . . . . . . . . . . . 219

.01 Rights of interested parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Comments by interested parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Requests for DOL to submit comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Right to comment if DOL declines to comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Confidentiality of comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Availability of comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 When comments are deemed made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

219
219
220
221
221
221
221

SECTION 18. WHAT ARE THE GENERAL RULES FOR NOTICE TO INTERESTED PARTIES? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

.01 Notice to interested parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Time when notice must be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Content of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Procedures for making information available to interested parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Information to be available to interested parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Special rules if there are fewer than 26 participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Information described in § 6104(a)(1)(D) should not be included . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.08 Availability of additional information to interested parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.09 Availability of notice to interested parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

221
221
221
222
222
222
223
223
223

PART III. PROCESSING DETERMINATION LETTER REQUESTS
SECTION 19. HOW DOES THE SERVICE HANDLE DETERMINATION LETTER REQUESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

.01 Oral advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Determination letter based solely on administrative record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Notice of final determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Issuance of the notice of final determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

224
224
224
225
225

SECTION 20. EXHAUSTION OF ADMINISTRATIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

.01 In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Steps for exhausting administrative remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Applicant’s request for § 7805(b) relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Interested parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Deemed exhaustion of administrative remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Service must act on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Service must act on § 7805(b) request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.08 Effect of technical advice request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

225
225
225
226
226
226
226
226

SECTION 21. WHAT EFFECT WILL AN EMPLOYEE PLAN DETERMINATION LETTER HAVE? . . . . . . . . . . . . . . . . . . . . . . . . . 226

.01 Scope of reliance on determination letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Sections 13 and 14 of Rev. Proc. 2011–4 applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Effect of subsequent publication of revenue ruling, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Determination letter does not apply to taxability issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

226
226
226
227

SECTION 22. EFFECT ON OTHER REVENUE PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
SECTION 23. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
DRAFTING INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
EXHIBIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
APPENDIX §§ 401(h) AND 420 DETERMINATION LETTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

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January 3, 2012

SECTION 1. WHAT IS THE
PURPOSE OF THIS REVENUE
PROCEDURE?
Purpose of revenue procedure

.01 This revenue procedure sets forth the procedures of the Internal Revenue Service for
issuing determination letters on the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans (ESOPs) under §§ 401, 403(a), 409 and 4975(e)(7)
of the Internal Revenue Code of 1986, and the status for exemption of any related trusts or
custodial accounts under § 501(a). Also see Rev. Proc. 2007–44, 2007–2 C.B. 54, as modified by Rev. Proc. 2008–56, 2008–2 C.B. 826, and Rev. Proc. 2009–36, 2009–35 I.R.B. 304,
which contains a description of the determination letter program, including when to submit a
request for a determination letter within the 5-year and 6-year staggered remedial amendment
cycles, that apply to individually designed and pre-approved (Master & Prototype and Volume
Submitter (VS)) plans. Also see Rev. Proc. 2011–49, 2011–44 I.R.B. 608, for procedures for
pre-approved plans.
This revenue procedure is effective February 1, 2012, for plans under the 5-year remedial
amendment cycle (other than terminating plans), and effective May 1, 2012, for terminating
plans and for plans under the 6-year remedial amendment cycle.

Organization of revenue
procedure

.02 Part I of this revenue procedure contains instructions for requesting determination letters
for various types of plans and transactions. Part II contains procedures for providing notice to
interested parties and for interested parties to comment on determination letter requests. Part III
contains procedures concerning the processing of determination letter requests and describes
the effect of a determination letter.

SECTION 2. WHAT CHANGES
HAVE BEEN MADE TO THIS
PROCEDURE?
In general

.01 This revenue procedure is a general update of Rev. Proc. 2011–6, 2011–1 I.R.B 195,
which contains the Service’s general procedures for employee plans determination letter requests.

Other changes

.02 This revenue procedure incorporates the changes to the determination letter program
described in Announcement 2011–82, 2011–52 I.R.B. 1052. The determination letter program
is modified to (1) eliminate the option of plan sponsors to request a determination relating to
minimum participation, coverage, and nondiscrimination requirements of the Internal Revenue
Code in conjunction with an application for a determination letter, and (2) limit the ability
to file a Form 5307, Application for Determination for Adopters of Master or Prototype or
Volume Submitter Plans, to adopters of certain VS plans who modify the terms of an approved
specimen plan. These changes are reflected throughout this revenue procedure. In addition to
minor revisions, such as updating references, the following changes have been made:
(1) Section 5.04 provides that a plan will not be reviewed for and a determination letter does
not constitute a ruling or determination as to whether the plan is a governmental plan under
§ 414(d).
(2) Section 5.05 provides that a plan will not be reviewed for and a determination letter does
not constitute a ruling or determination as to whether the plan is a church plan under § 414(e).
(3) Section 5.06 provides that a plan will not be reviewed for and a determination letter may
not be relied on with respect to whether contributions to the plan satisfy § 414(h).
(4) Section 6.04 clarifies that an applicant must include EPCRS documentation, if any, with
a determination letter application.
(5) Section 6.08 relating to prior letters, is modified to require that when the submitted plan
is the result of a merger between two or more plans, certain requirements are applied to each
underlying plan.

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200

2012–1 I.R.B.

(6) Section 7.01 is revised to clarify the circumstances under which a determination letter
can be requested.
(7) Section 7.04 is revised to clarify that an application should include all interim and other
plan amendments adopted since the submission of the most recent determination letter application.
(8) Section 8.02 modifes Rev. Proc. 2011–49.
(9) Section 13.03, is revised to include Form 5316, Application for Group or Pooled Trust
Ruling.
(10) Section 14 is revised to reflect that while affiliated service group and leased employee
status maybe reviewed by the Service in a determination letter application, the Service no
longer rules on the effect of affiliated service group or leased employee status on the plan’s
qualified status.
Other guidance

.03 Other guidance affecting this revenue procedure:
(1) Rev. Proc. 2011–49, 2011–44 I.R.B. 608 describes the procedures for the “pre-approval”
of plans under the master and prototype (M&P) program and the VS program. Rev. Proc.
2007–44 describes a system of remedial amendment cycles that applies to pre-approved plans
and individually designed plans, and the deadlines to submit applications for opinion, advisory
and determination letters. The Service issues a Cumulative List every year identifying changes
affecting plan qualification requirements to be used by plans whose remedial amendment cycle
begins in the month of February following the publication of the Cumulative List.
(2) The 2011 Cumulative List is contained in Notice 2011–97, 2011–52 I.R.B. 923.
(3) Announcement 2010–20, 2010–15 I.R.B. 551, provides information with respect to the
issuance of opinion and advisory letters, and the opening of the EGTRRA determination letter
program for pre-approved defined benefit plans.

PART I. PROCEDURES FOR DETERMINATION LETTER REQUESTS
SECTION 3. ON WHAT ISSUES
MAY TAXPAYERS REQUEST
WRITTEN GUIDANCE UNDER
THIS PROCEDURE?
Types of requests

.01 Determination letters may be requested on completed and proposed transactions as set
forth in the table below:

TYPE OF REQUEST
1.

FORMS

REV. PROC.
SECTION

5300

7

5300, 5309

7

Initial Qualification, etc.
a.

Individually-designed plans
(including collectively bargained plans) and
partial terminations

b.

ESOPs

c.

Adoptions of volume submitter plans
(where the employer has made limited
modifications to the language of the
approved specimen plan)

5307

9

d.

Multiple employer plans

5300

10

e.

Group trusts

5316

13

2012–1 I.R.B.

201

Sec. 3.01
January 3, 2012

TYPE OF REQUEST
f.
2.

§ 414(x) combined plans

FORMS

REV. PROC.
SECTION

5300

7

Termination
a.

In general

5310, 6088

12

b.

Multiemployer plan covered by PBGC
insurance

5300, 6088

12

Note: Form 5310–A, Notice of Plan Merger, Consolidation, Spinoff or Transfer of Plan Assets or Liabilities – Notice of Qualified
Separate Lines of Business generally must be filed not less than 30 days before the merger, consolidation or transfer of assets and
liabilities. The filing of Form 5310–A will not result in the issuance of a determination letter.
3.

Special Procedures
a.

Affiliated service group status (§ 414(m)),
leased employees (§ 414(n)), partial
termination

5300

14

b.

Minimum funding waiver

5300

15

c.

Section 401(h) determination letters

5300

16

d.

Section 420 determination letters including
other matters under § 401(a)

5300,
Cover letter,
Checklist

16

e.

Section 420 determination letters excluding
other matters under § 401(a)

Cover letter,
Checklist

16

Areas in which determination
letters will not be issued

.02 Determination letters issued in accordance with this revenue procedure do not include
determinations on the following issues within the jurisdiction of the Commissioner, TE/GE:
(1) Issues involving §§ 72, 79, 105, 125, 127, 129, 402, 403 (other than 403(a)), 404, 409(l),
409(m), 412, 414(h)(2), 415(m), 457, 511 through 515, and 4975 (other than 4975(e)(7)), unless these determination letters are authorized under section 7 of Rev. Proc. 2012–4, page 125,
this Bulletin.
(2) Plans or plan amendments for which automatic approval is granted pursuant to section
19.01 of Rev. Proc. 2011–49.
(3) Plan amendments described below (these amendments will, to the extent provided, be
deemed not to alter the qualified status of a plan under § 401(a)).
(a) An amendment solely to permit a trust forming part of a plan to participate in a pooled
fund arrangement described in Rev. Rul. 81–100, 1981–1 C.B. 326, as clarified and modified
by Rev. Rul. 2004–67, 2004–2 C.B. 28; and Rev. Rul. 2011–1, 2011–2 I.R.B. 251;
(b) An amendment that merely adjusts the maximum limitations under § 415 to reflect
annual cost-of-living increases under § 415(d), other than an amendment that adds an automatic
cost-of-living adjustment provision to the plan; and
(c) An amendment solely to include language pursuant to § 403(c)(2) of Title I of the Employee Retirement Income Security Act of 1974 (ERISA) concerning the reversion of employer
contributions made as a result of mistake of fact.
(4) This section applies to determination letter requests with respect to plans that combine an
ESOP (as defined in § 4975(e)(7) of the Code) with retiree medical benefit features described
in § 401(h) (HSOPs).

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2012–1 I.R.B.

(a) In general, determination letters will not be issued with respect to plans that combine
an ESOP with an HSOP with respect to:
(i) whether the requirements of § 4975(e)(7) are satisfied;
(ii) whether the requirements of § 401(h) are satisfied; or
(iii) whether the combination of an ESOP with an HSOP in a plan adversely affects its
qualification under § 401(a).
(b) A plan is considered to combine an ESOP with an HSOP if it contains ESOP provisions
and § 401(h) provisions.
(c) However, an arrangement will not be considered covered by section 3.02(4) of this
revenue procedure if, under the provisions of the plan, the following conditions are satisfied:
(i) No individual accounts are maintained in the § 401(h) account (except as required
by § 401(h)(6));
(ii) No employer securities are held in the § 401(h) account;
(iii) The § 401(h) account does not contain the proceeds (directly or otherwise) of an
exempt loan as defined in § 54.4975–7(b)(1)(iii) of the Pension Excise Tax Regulations; and
(iv) The amount of actual contributions to provide § 401(h) benefits (when added to
actual contributions for life insurance protection under the plan) does not exceed 25 percent of
the sum of: (1) the amount of cash contributions actually allocated to participants’ accounts
in the plan and (2) the amount of cash contributions used to repay principal with respect to
the exempt loan, both determined on an aggregate basis since the inception of the § 401(h)
arrangement.
Submission period for applications

.03 The Service will accept applications for determination letters for the second Cycle B
submission period from February 1, 2012 to January 31, 2013. The Service’s review will take
into account the qualification requirements of the Code as amended by PPA, and other items
identified on the 2011 Cumulative List in Notice 2011–97.

SECTION 4. ON WHAT ISSUES
MUST WRITTEN GUIDANCE
BE REQUESTED UNDER
DIFFERENT PROCEDURES?
TE/GE

.01 Other procedures for obtaining rulings, determination letters, opinion letters, etc., on
matters within the jurisdiction of the Commissioner, TE/GE are contained in the following
revenue procedures:
(1) Employee Plans Technical (EP Technical) letter rulings, information letters, etc.: See
Rev. Proc. 2012–4, page 125, this Bulletin.
(2) M&P and VS plans: See, Rev. Proc. 2011–49.
(3) Technical advice requests: See Rev. Proc. 2012–5, page 169, this Bulletin.

Chief Counsel’s revenue
procedure

2012–1 I.R.B.

.02 For the procedures for obtaining letter rulings, determination letters, etc., on matters
within the jurisdiction of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), or within the jurisdiction of other offices of Chief Counsel, see Rev. Proc.
2012–1, page 1, this Bulletin.

203

Sec. 4.02
January 3, 2012

SECTION 5. WHAT IS THE
GENERAL SCOPE OF A
DETERMINATION LETTER?
Scope of this section

.01 This section delineates, generally, the scope of an employee plan determination letter.
This section also identifies certain qualification requirements that are not considered by the
Service in its review of a plan and with respect to which determination letters do not provide
reliance. This section applies to all determination letters other than letters relating to the qualified status of group trusts; and certain letters relating solely to the requirements of § 420,
regarding the transfer of assets in a defined benefit plan to a health benefit account described
in § 401(h). For additional information pertaining to the scope of reliance on a determination
letter, see sections 8, 9 and 21 of this revenue procedure.

Scope of determination letters

.02 In general, employee plans are reviewed by the Service for compliance with the form
requirements (that is, those plan provisions that are required as a condition of qualification
under § 401(a)). For terminating plans, the requirements are those that apply as of the date of
termination. See Rev. Proc. 2007–44 for further details on the scope of the Service’s review
of determination letter applications.

Nondiscrimination in amount
requirement

.03 Generally, a plan will not be reviewed for, and a determination letter may not be relied on
with respect to, whether a plan satisfies the nondiscrimination requirements of § 401(a)(4), the
minimum participation requirements of § 401(a)(26), or the minimum coverage requirements
of § 410(b). However, if the applicant elects, a plan will be reviewed for, and a determination
letter may be relied on with respect to, whether the terms of the plan satisfy one of the designbased safe harbors in §§ 1.401(a)(4)–2(b) and 1.401(a)(4)–3(b) of the regulations (relating to
nondiscrimination in amount of contributions and benefits.) A plan will also be reviewed for,
and a determination letter may be relied on with respect to, whether a plan’s terms satisfy the
applicable requirements of sections 401(k) and 401(m).

Governmental plans under
§ 414(d)

.04 A plan will not be reviewed for and a determination letter does not constitute a ruling or
determination as to whether the plan is a governmental plan within the meaning of § 414(d).
If a determination letter applicant indicates on the application that the plan is a governmental
plan within the meaning of § 414(d), the determination letter issued for the plan is predicated
on that representation.

Church plans under § 414(e)

.05 A plan will not be reviewed for and a determination letter does not constitute a ruling
or determination as to whether the plan is a church plan within the meaning of § 414(e). If a
determination letter applicant indicates on the application that the plan is a church plan within
the meaning of § 414(e), the determination letter issued for the plan is predicated on that representation.

Tax treatment of certain
contributions of § 414(h)

.06 A plan will not be reviewed for and a determination letter may not be relied on with
respect to whether contributions to the plan satisfy § 414(h). A determination letter does not
express an opinion on whether contributions made to a plan treated as a governmental plan
defined in § 414(d) constitute employer contributions under § 414(h)(2).

Other limits on scope of
determination letter

.07 A favorable determination letter does not provide reliance for purposes of § 404, § 412,
§ 430, and §432 with respect to whether an interest rate (or any other actuarial assumption) is
reasonable. A favorable determination letter does not constitute a determination with respect
to whether any requirements of § 414(r), relating to whether an employer is operating qualified
separate lines of business, are satisfied.

Affiliated service groups,
leased employees and partial
terminations

.08 Applicants may elect that the letter include a determination as to whether:
(1) the employer is a member of an affiliated service group within the meaning of § 414(m),
(2) leased employees are deemed employees of the employer under the meaning of § 414(n),
and/or
(3) a partial termination has occurred with respect to the plan, and if so, its impact on plan
qualification.

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Publication 794

.09 Publication 794, Favorable Determination Letter, contains other information regarding
the scope of a determination letter, including the requirement that all information submitted
with the application be retained as a condition of reliance. In addition, the specific terms of
each letter may further define its scope and the extent to which it may be relied upon.

SECTION 6. WHAT IS THE
GENERAL PROCEDURE
FOR REQUESTING
DETERMINATION LETTERS?
Scope

.01 This section contains procedures that are generally applicable to all determination letter
requests. Additional procedures for specific requests are contained in sections 7 through 16.

Qualified trusteed plans

.02 A trust created or organized in the United States and forming part of a pension, profit
sharing, stock bonus or annuity plan of an employer for the exclusive benefit of its employees
or their beneficiaries that meets the requirements of § 401 is a qualified trust and is exempt
from federal income tax under § 501(a) unless the exemption is denied under § 502, relating
to feeder organizations, or § 503, relating to prohibited transactions, if, in the latter case, the
plan is one described in § 503(a)(1)(B).

Qualified nontrusteed annuity
plans

.03 A nontrusteed annuity plan that meets the applicable requirements of § 401 and other
additional requirements as provided under § 403(a) and § 404(a)(2) (relating to deductions of
employer contributions for the purchase of retirement annuities) qualifies for the special tax
treatment under § 404(a)(2), and the other sections of the Code, if the additional provisions of
such other sections are also met.

Complete information required

.04 An applicant requesting a determination letter must file the material required by this
revenue procedure with Employee Plans Determinations (EP Determinations) at the address
in section 6.15. The filing of the application, when accompanied by all information and documents required by this revenue procedure, will generally serve to provide the Service with
the information required to make the requested determination. However, in making the determination, the Service may require the submission of additional information. Information
submitted to the Service in connection with an application for determination may be subject
to public inspection to the extent provided by § 6104. The applicant must include Employee
Plans Compliance Resolution System documentation, if any, (e.g., closing agreement or compliance statement) with the determination letter application.

Complete copy of plan and trust
instrument required

.05 All changes made to the most recently approved version of the plan may be, but are not
required to be, redlined or highlighted. The determination letter application must also include
a copy of the signed and dated timely required interim and other plan amendments made to the
date of the application (other than such amendments adopted on behalf of the employer by the
practitioner that sponsors the employer’s VS plan), as provided in section 7.04 (even if these
amendments are dated earlier than a previous determination letter issued with respect to the
plan) to show that the conditions for eligibility for the applicable remedial amendment period
are satisfied.
In order for documents to be properly scanned, documents submitted should not be stapled
or bound and the application form should be prepared using Courier 10 point font.

Section 9 of Rev. Proc. 2012–4
applies

.06 Section 9 of Rev. Proc. 2012–4 is generally applicable to requests for determination
letters under this revenue procedure.

Separate application for each
single § 414(l) plan

.07 A separate application is required for each single plan within the meaning of § 414(l).
This requirement does not pertain to applications regarding the qualified status of group trusts.

Prior letters

.08 If the plan has received a favorable determination letter in the past, the application must
include a copy of the latest determination letter. If a prior determination letter is not available,
an explanation must be included with the application, and the employer must include a copy
of the prior plan or adoption agreement, including the opinion or advisory letter, if applicable.

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If the submitted plan is the result of a merger of two or more plans, include a copy of the
prior determination letter for all the plans that combined to result in the merged plan. If a prior
determination letter is not available for any such plan involved in a merger, an explanation
must be included with the application, and the employer must include a copy of the prior plan
document and adoption agreement, including the opinion or advisory letter, if applicable. For
each plan involved in a merger, provide all of the amendments adopted after the date of the
most recent determination, opinion or advisory letter for each of the merged plans, as well as
the prior plan document.
User fees

.09 The appropriate user fee, if applicable, must be paid according to the procedures of Rev.
Proc. 2012–8, page 235, this Bulletin. Form 8717, User Fee for Employee Plan Determination
Letter Request, must accompany each determination letter request. If the criteria for the user
fee exemption are met in accordance with Notice 2011–86, 2011–45 I.R.B. 698, the certification on Form 8717 must be signed. Stamped signatures are not acceptable.

Interested party notification and
comment

.10 Before filing an application, the applicant requesting a determination letter must satisfy
the requirements of section 3001(a) of ERISA, and § 7476(b)(2) of the Code and the regulations
thereunder, which provide that an applicant requesting a determination letter on the qualified
status of certain retirement plans must notify interested parties of such application. The general
rules of the Service with respect to notifying interested parties of requests for determination
letters relating to the qualification of plans involving §§ 401 and 403(a) are set out below in
sections 17 and 18 of this revenue procedure.

Contrary authority must be
distinguished

.11 If the application for determination involves an issue where contrary authorities exist,
failure to disclose or distinguish such significant contrary authorities may result in requests for
additional information, which will delay action on the application.

Employer/employee relationship

.12 The Service ordinarily does not make determinations regarding the existence of an employer-employee relationship as part of its determination on the qualification of a plan, but
relies on the applicant’s representations or assumptions, stated or implicit, regarding the existence of such a relationship. The Service will, however, make a determination regarding the
existence of an employer-employee relationship when so requested by the applicant. In such
cases, the application with respect to the qualification of the plan should be filed in accordance
with the provisions of this revenue procedure, contain the information and documents in the
instructions to the application, and be accompanied by a completed Form SS–8, Determination
of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, and
any information and copies of documents the organization deems appropriate to establish its
status. The Service may, in addition, require further information that it considers necessary to
determine the employment status of the individuals involved or the qualification of the plan.
After the employer-employee relationships have been determined, EP Determinations may issue a determination letter as to the qualification of the plan.

Incomplete applications returned

.13 If an applicant requesting a determination letter does not comply with all the required
provisions of this revenue procedure, EP Determinations, in its discretion, may return the application and point out to the applicant those provisions which have not been met. The failure
to provide information required by an application, including any supplemental information required by the instructions for the application, may result in the application being returned to
the applicant as incomplete. The request may also be returned pursuant to Rev. Proc. 2012–8
if the correct user fee is not attached. If such a request is returned to the applicant, the 270-day
period described in § 7476(b)(3) will not begin to run until such time as the provisions of this
section have been satisfied. Applications must be submitted with the current version of an application form. If an application is not submitted with the current version of the appropriate
application form, the application will be returned.

Effect of failure to disclose
material fact

.14 The Service may determine, based on the application form, the extent of review of the
plan document. A failure to disclose a material fact or misrepresentation of a material fact
on the application may adversely affect the reliance that would otherwise be obtained through
issuance by the Service of a favorable determination letter. Similarly, failure to accurately

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provide any of the information called for on any form required by this revenue procedure may
result in no reliance.
Where to file requests

.15 Requests for determination letters are to be addressed to EP Determinations at the following address:
Internal Revenue Service
P.O. Box 12192
Covington, KY 41012–0192
Requests shipped by Express Mail or a delivery service should be sent to:
Internal Revenue Service
201 West Rivercenter Blvd.
Attn: Extracting Stop 312
Covington, KY 41011
Determination letter applications will not be accepted via fax.

Submission of related plans

.16 If applications for two or more plans of the same employer are submitted together, each
application should include a cover letter that identifies the name of the employer and the plan
numbers and employer identification numbers of all the related plans submitted together. The
Service will determine whether these applications will be worked simultaneously.

Withdrawal of requests

.17 The applicant’s request for a determination letter may be withdrawn by a written request at any time prior to the issuance of a final adverse determination letter. If an appeal to
a proposed adverse determination letter is filed, a request for a determination letter may be
withdrawn at any time prior to the forwarding of the proposed adverse action to the Chief,
Appeals Office. In the case of a withdrawal, the Service will not issue a determination of any
type. A failure to issue a determination letter as a result of a withdrawal will not be considered a failure of the Secretary or his delegate to make a determination within the meaning of
§ 7476. However, the Service may consider the information submitted in connection with the
withdrawn request in a subsequent examination. Generally, the user fee will not be refunded
if the application is withdrawn.

Right to status conference

.18 An applicant for a determination letter has the right to a have a conference with the EP
Determinations Manager concerning the status of the application if the application has been
pending at least 270 days. The status conference may be by phone or in person, as mutually
agreed upon. During the conference, any issues relevant to the processing of the application
may be addressed, but the conference will not involve substantive discussion of technical issues. No tape, stenographic, or other verbatim recording of a status conference may be made
by any party. Subsequent status conferences may also be requested if at least 90 days have
passed since the last preceding status conference.

How to request status conference

.19 A request for a status conference with the EP Determinations Manager is to be made in
writing and is to be sent to the specialist assigned to review the application or, if the applicant
does not know who is reviewing the application, to the EP Determinations Manager at the
address in section 6.15. If, pursuant to section 15, the application for a determination letter
has been submitted to Employee Plans Technical (EP Technical) together with a request for a
waiver of minimum funding, the request for a status conference should be sent to the address
in section 15.03. In this case, the right to a status conference will be with the EP Technical
Manager or designee.

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Sec. 6.19
January 3, 2012

SECTION 7. WHEN
DETERMINATION LETTERS
ARE ISSUED
Requesting Determination Letters

.01 This section 7 contains the procedures for requesting determination letters for individually-designed defined contribution plans, including employee stock ownership plans, and defined benefit plans, in the following circumstances:
(1) Initial qualification.
(2) Amendment and restatement subsequent to initial qualification.
(3) Plan termination.

Forms

.02 A determination letter request for the items listed in section 7.01 is made by filing the
appropriate form according to the instructions to the form and any prevailing revenue procedures, notices, and announcements.
(1) Form 5300, Application for Determination for Employee Benefit Plan, must be filed to
request a determination letter for individually designed plans, including collectively bargained
plans.
(2) Form 5309, Application for Determination of Employee Stock Ownership Plan, must be
filed as an attachment with a Form 5300, in order to request a determination whether the plan
is an ESOP under § 409 or § 4975(e)(7).
(3) Form 5310, Application for Determination for Terminating Plan (Also see section 12 of
this revenue procedure for additional requirements pertaining to applications for determination
upon plan termination.)
(4) Form 8905, Certification of Intent to Adopt a Pre-approved Plan, executed before the
end of the employer’s 5-year remedial amendment cycle as determined under Part III of Rev.
Proc. 2007–44, if applicable.
(5) Form 8905, Certification of Intent to Adopt a Pre-approved Plan, executed before the
end of the employer’s 5-year remedial amendment cycle as determined under Part III of Rev.
Proc. 2007–44, if applicable.
(6) Form 8717, User Fee for Employee Plan Determination, Opinion, and Advisory Letter
Request.
(7) Form 2848, Power of Attorney and Declaration of Representative, or other written authorization allowing the VS practitioner to act as a representative of the employer with respect
to the request for a determination letter.

Timing

.03 All determination letter submissions must be submitted timely under the procedures set
forth in Rev. Proc. 2007–44. The timing of the submission period for any particular individually designed plan within staggered remedial amendment cycles will depend on the plan’s
particular cycle. The second submission period for Cycle B individually designed plans will
begin February 1, 2012 and will end on January 31, 2013. Generally, an off-cycle application
will not be reviewed until all on-cycle plans have been reviewed and processed. Section 14.02,
(1)–(3) of Rev. Proc. 2007–44 lists the types of applications that may be submitted off-cycle
and given the same priority as on cycle applications.
Applicants are reminded that an off-cycle application will not be converted to an on-cycle
application once the on-cycle submission period begins if the off-cycle application has not been
processed. Generally, if an off-cycle application is not reviewed before the beginning of the
on-cycle period, the application will be returned with the user fee.

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2012–1 I.R.B.

Application must include copy of
plan and amendments

.04 Copies of all interim and other plan amendments adopted since the date the most recent
determination letter application was submitted, must be included along with a copy of the restated plan and trust instrument. If the plan did not receive a favorable determination letter
with respect to its prior remedial amendment cycle, all amendments for the Cumulative List
applicable for the plan’s prior submission period must also be submitted.
In general, except when prior law verification is required, a determination letter may not be
relied upon for any period preceding the beginning of the remedial amendment cycle for which
the letter is issued. Thus, for example, if an application for a determination letter includes a
plan amendment that was effective before the beginning of the plan’s current remedial amendment cycle, the determination letter may not be relied upon with respect to the effect of the
amendment for the period preceding the beginning of the cycle.

Restatements required

.05 Individually designed plans must be restated when they are submitted for determination
letter applications. For this purpose, submission of a working copy of the plan in a restated
format will suffice. Where a working copy is submitted with executed amendments integrated
into the working copy, all such amendments must also be separately submitted. The Service
considers a working copy as a document that incorporates all previously executed amendments
into one restated document. The intended purpose of a working copy in a restated format is
only for ease of review and plan administration and it is not a document that is intended to be
adopted. The Service reserves the right to make a determination as to whether the working
copy is in a restated format that will facilitate the review of the plan.

Controlled group elections
pursuant to Revenue Procedure
2007–44.

.06 If, pursuant to Rev. Proc. 2007–44, an election has been made for related entities (as
described under section 10 of that revenue procedure) to be on the same cycle, each application
should include a cover letter that identifies the name of each member of the controlled group
and/or employer within the affiliated service group, and the plan numbers and employer identification numbers of all the related plans submitted together. When a controlled group election
has been made for multiple plans to be on the same cycle, the Service will determine whether
these applications will be worked simultaneously.

§ 414(x) combined plans

.07 The Service 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.
A § 414(x) combined plan sponsor must submit two Form 5300s and two applicable user fees.

SECTION 8. EMPLOYER
RELIANCE ON M&P AND
VOLUME SUBMITTER PLANS
Scope

.01 Rev. Proc. 2011–49 describes the procedures for requesting opinion letters and advisory
letters on M&P and VS plans and the extent to which adopting employers of such plans may
rely on favorable opinion or advisory letters without having to request individual determination
letters.

Modifications to Revenue
Procedure 2011–49

.02 Rev. Proc. 2011–49 is hereby modified as follows with respect to determination letter
applications filed on or after May 1, 2012:
(1) An adopting employer of an M&P plan (whether standardized or nonstandardized) may
not apply for a determination letter for the plan on Form 5307.
(2) An adopting employer of a VS plan may not apply for a determination letter for the
plan on Form 5307 unless the employer has modified the terms of the approved plan and the
modifications are not so extensive as to cause the plan to be treated as an individually designed
plan.
(3) An application for a determination letter for an M&P or VS plan that is filed on Form
5300 is treated as an application for an individually designed plan, requiring the plan to be
restated to take into account the Cumulative List in effect when the application is filed, unless
the employer is filing the application solely for one or more of the following reasons:

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209

Sec. 8.02
January 3, 2012

(a) The employer has modified the terms of the M&P plan by adding overriding language necessary to coordinate the application of the limitations of section 415 or the requirements of section 416 because the employer maintains multiple plans.
(b) The plan is a pension plan and the normal retirement age under the plan is lower
than 62. In this case, a determination letter is required for reliance that the plan’s normal retirement age satisfies the requirements of section 1.401(a)–1(b)(2) of the regulations.
(c) The employer seeks a determination as to whether there has been a partial termination of the plan, the employer is a member of an affiliated service group under section 414(m),
or the employer is a recipient of services of leased employees under section 414(n).
(d) The plan is a multiple employer plan.
(e) The employer is required to obtain a determination letter to comply with published
procedures of the Service (for example, in conjunction with a request for a minimum funding
waiver).
In the situations described in subparagraphs (a) through (e), the plan does not have to be
restated for the Cumulative List in effect when the application is filed and will be reviewed on
the basis of the Cumulative List that was considered in issuing the opinion or advisory letter for
the plan. An employer that submits an application for a determination letter for an M&P or VS
plan on Form 5300 for one or more of the reasons described in subparagraphs (a) through (e)
should identify the reason in a cover letter to the application and include a copy of the opinion
or advisory letter.
Section 9 of this revenue procedure describes the procedures for requesting determination
letters on VS plans where the employer has made limited modifications to the language of the
approved specimen plan.
Reliance equivalent to
determination letter

.03 If an employer can rely on a favorable opinion or advisory letter pursuant to Section 19
of Rev. Proc. 2011–49, as modified by this revenue procedure, the opinion or advisory letter
shall be equivalent to a favorable determination letter. For example, the favorable opinion or
advisory letter shall be treated as a favorable determination letter for purposes of section 21
of this revenue procedure, regarding the effect of a determination letter, and section 5.01(4)
of Rev. Proc. 2008–50, 2008–2 C.B. 464, regarding the definition of “favorable letter” for
purposes of the Employee Plans Compliance Resolution System.

SECTION 9. DETERMINATION
LETTER FILING
PROCEDURES FOR VOLUME
SUBMITTER PLANS
Scope

.01 This section contains procedures for requesting determination letters for adopting employers of VS plans where the employer has made limited modifications to the approved specimen plan.

Determination letter for adoption
of volume submitter plan

.02 An application filed on Form 5307, must include any interim plan amendments unless
the VS plan authorizes the practitioner to amend on behalf of the adopting employer. The
Service may, however, request evidence of adoption of interim amendments during the course
of its review of a particular plan. With respect to determination letters for adopting employers
of VS plans:
(1) An application for a determination letter for an employer’s adoption of an approved
VS plan where the employer has made limited modifications to the language of the approved
specimen plan must be sent to the address provided in section 6.15. For VS plans involved in
plan mergers, see section 6.08 of this procedure.
(2) The application for a determination letter must include the following:

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(a) Form 8717, User Fee for Employee Plan Determination, Opinion, and Advisory Letter
Request;
(b) Form 5307, Application for Determination for Adopters of Master or Prototype or VS
Plans;
(c) Form 2848, Power of Attorney and Declaration of Representative, or other written authorization allowing the VS practitioner to act as a representative of the employer with respect
to the request for a determination letter;
(d) Form 8905, Certification of Intent to Adopt a Pre-approved Plan, executed before the
end of the employer’s 5-year remedial amendment cycle as determined under Part III of Rev.
Proc. 2007–44, if applicable;
(e) A copy of the most recent advisory letter for the practitioner’s VS specimen plan;
(f) A complete copy of the plan and trust instrument and a copy of the completed adoption
agreement;
(g) A written representation (signature optional) made by the VS practitioner which explains how the plan and trust instrument differ from the approved specimen plan, describing
the location, nature and effect of each deviation from the language of the approved specimen
plan;
(h) A copy of the plan’s latest favorable determination letter, if applicable;
(i) Applications filed on Form 5307 for VS plans where the employer has made modifications to the language of the approved specimen plan that do not authorize the practitioner
to amend on behalf of the adopting employer must include any interim amendments that were
adopted for qualification changes on the applicable Cumulative List used in reviewing and approving the underlying VS plan; and
(j) Any other information or material that may be required by the Service.
(3) Deviations from the language of the approved specimen plan will be evaluated based on
the extent and complexities of the changes. If the changes are determined not to be compatible
with the VS program, the Service may require the applicant to file Form 5300 and pay the
higher user fee. See also, Rev. Proc. 2007–44, section 19.
(4) An employer will not be treated as having adopted a VS plan if the employer has signed
or otherwise adopted the plan prior to the date on the VS specimen plan’s advisory letter. In
this case, the determination letter application for the employer’s plan may not be filed on Form
5307 and will not be eligible for a reduced user fee. A determination letter application for a
VS plan must be based on the approved VS specimen plan with any applicable modifications.
See section 19.03 in Rev. Proc. 2011–49.
SECTION 10. MULTIPLE
EMPLOYER PLANS
Scope

.01 This section contains procedures for applications filed with respect to plans described
in § 413(c). A plan is not described in § 413(c) if all the employers maintaining the plan are
members of the same controlled group or affiliated service group under § 414(b), (c) or (m).

Options to file for the plan only or
for both the plan and employers
maintaining the plan

.02 A determination letter applicant for a multiple employer plan can request either (1) a
letter for the plan in the name of the controlling member or (2) a letter for the plan in the name
of the controlling member and a letter for each employer maintaining the plan with respect to
whom a separate Form 5300 is filed.
(1) An applicant requesting a letter for the plan submits one Form 5300 application for the
plan in the name of the controlling member, either including or omitting the design-based safe
harbor questions. The user fee for a single employer plan will apply. An employer maintaining

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Sec. 10.02
January 3, 2012

a multiple employer plan can rely on a favorable determination letter issued for the plan except
with respect to the requirements of §§ 401(a)(4), 401(a)(26), 401(l), 410(b) and 414(s), and, if
the employer maintains or has ever maintained another plan, §§ 415 and 416.
(2) An applicant requesting a letter for the plan and for an employer maintaining the plan
must submit the filing required in (1) above as well as a separate Form 5300 application, completed through line 8, and, if applicable, a completed adoption agreement, for each employer
requesting a separate letter. The user fee for the application will be determined under the user
fee schedules for multiple employer plans in section 6.05 of Rev. Proc. 2012–8.
Where to file

.03 The complete application, including all Forms 5300 (and, if applicable, adoption agreements) for employers maintaining the plan who request separate letters must be filed as one
submission with EP Determinations. The application is to be sent to the address in section 6.15.

Determination letter sent to each
employer who files Form 5300

.04 The Service will mail a determination letter to each employer maintaining the plan for
whom a separate Form 5300 has been filed.

Addition of employers

.05 An employer may continue to rely on a favorable determination letter after another employer commences participation in the plan, regardless of whether the first employer’s reliance
is based on its own letter or the letter issued for the plan and regardless of whether an application for a determination letter for the new employer is filed. An application for a determination
letter that takes into account the addition of such other employer should include a completed
Form 5300 for the plan in the name of the controlling member on the Form 5300 filed pursuant
to section 10.02 above, and a supplemental Form 5300 (and, if applicable, adoption agreement)
for each new employer who desires a separate determination letter. The Service will send the
determination letter only to the applicant and the new employers. However, a new employer
that joins a multiple employer plan after the existing multiple employer plan was timely submitted in Cycle B (the applicable cycle as described in section 10 of Rev. Proc. 2007–44), will
be subject to the rules under Rev. Proc. 2007–44, including the off-cycle filing rules under
section 14 of that revenue procedure.

SECTION 11. RESERVED

Reserved

SECTION 12. TERMINATION
OR DISCONTINUANCE
OF CONTRIBUTIONS;
NOTICE OF MERGERS,
CONSOLIDATIONS, ETC.
Scope

Forms

.01 This section contains procedures for requesting determination letters involving plan termination or discontinuance of contributions. This section also contains procedures regarding
required notice of merger, consolidation, or transfer of assets or liabilities.
.02 Required Forms
(1) Form 5310, Application for Determination for Terminating Plan, is filed by plans other
than multiemployer plans covered by the insurance program of the Pension Benefit Guaranty
Corporation (PBGC).
(2) Form 5300, Application for Determination of Employee Benefit Plan, is filed in the case
of a multiemployer plan covered by PBGC insurance.
(3) Form 6088, Distributable Benefits from Employee Pension Benefit Plans, is also required
of a sponsor or plan administrator of a defined benefit plan or an underfunded defined contribution plan who files an application for a determination letter regarding plan termination. For
collectively bargained plans, a Form 6088 is required only if the plan benefits employees who
are not collectively bargained employees within the meaning of § 1.410(b)–6(d). A separate
Form 6088 is required for each employer employing such employees.
(4) Form 5310–A, Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan Assets or Liabilities — Notice of Qualified Separate Lines of Business, if required, generally must

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be filed not later than 30 days before merger, consolidation or transfer of assets and liabilities.
The filing of Form 5310–A will not result in the issuance of a determination letter.
(5) Form 8905, Certification of Intent to Adopt a Pre-approved Plan, must be filed to establish the employer’s eligibility for the 6-year remedial amendment cycle where the employer
executed the form by the end of the employer’s 5-year remedial amendment cycle as determined under Part III of Rev. Proc. 2007–44.
(6) Form 8717, User Fee for Employee Plan Determination, Opinion, and Advisory Letter
Request.
(7) Form 2848, Power of Attorney and Declaration of Representative, or other written authorization allowing the VS practitioner to act as a representative of the employer with respect
to the request for a determination letter.
Supplemental information

.03 The application for a determination letter involving plan termination must also include
any supplemental information or schedules required by the forms or form instructions. For example, the application must include copies of all records of actions taken to terminate the plan
(such as a resolution of the board of directors) and a schedule providing certain information
regarding employees who separated from vesting service with less than 100% vesting.
In cases involving the termination of plans that contain a § 401(h) feature, the cover letter of
the submission must reference the § 401(h) feature and make clear that this feature is part of the
termination application. The cover letter must specifically state the location of plan provisions
that relate to the § 401(h) feature.

Compliance with Title IV of
ERISA

.04 In the case of plans subject to Title IV of ERISA, a favorable determination letter issued
in connection with a plan’s termination is conditioned on approval that the termination is a valid
termination under Title IV of ERISA. Notification by PBGC that a plan may not be terminated
will be treated as a material change of fact.

Termination prior to time for
amending for change in law

.05 A plan that terminates after the effective date of a change in law, but prior to the date
that amendments are otherwise required, must be amended to comply with the applicable provisions of law from the date on which such provisions become effective with respect to the
plan. Because such a terminated plan would no longer be in existence by the required amendment date and therefore could not be amended on that date, such plan must be amended in
connection with the plan termination to comply with those provisions of law that become effective with respect to the plan on or before the date of plan termination. (Such amendments
include any amendments made after the date of plan termination that were required in order to
obtain a favorable determination letter.) In addition, annuity contracts distributed from such
terminated plans also must meet all the applicable provisions of any change in law. See also
section 8 of Rev. Proc. 2007–44.
An application will be deemed to be filed in connection with plan termination if it is filed
no later than the later of (i) one year from the effective date of the termination, or (ii) one year
from the date on which the action terminating the plan is adopted. However, in no event can
the application be filed later than twelve months from the date of distribution of substantially
all plan assets in connection with the termination of the plan.

Restatement not required for
terminating plan

.06 A terminating plan generally does not have to be restated. However, see section 7.05 and
.05 of this section above. The Service has the discretion to request copies of any amendments
during its review of a terminating plan.

SECTION 13. GROUP TRUSTS
Scope

.01 This section provides special procedures for requesting a determination letter on the
qualified status of a group trust under Rev. Rul. 81–100, as clarified and modified by Rev.
Rul. 2004–67 and Rev. Rul. 2011–1, 2011–2 I.R.B. 251.

Required information

.02 A request for a determination letter on the status of a group trust is made by submitting a
Form 5316, Application for Group or Pooled Trust Ruling, demonstrating how the group trust

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Sec. 13.02
January 3, 2012

satisfies the criteria listed in Rev. Rul. 2011–1, together with the trust instrument and related
documents. Rev. Rul. 2004–67 extends the ability to participate in group trusts to eligible
governmental plans under § 457(b) and clarifies the ability of certain individual retirement accounts under § 408 to participate. Rev. Rul. 2011–1 extends the ability to participate in group
trusts to custodial accounts under § 403(b)(7), retirement income accounts under § 403(b)(9),
and governmental retiree benefit plans under § 401(a)(24). There are two model amendments
in Rev. Rul. 2011–1. Amendment 1 is for a group trust that received a determination letter
from the Service prior to January 10, 2011, that the group trust satisfies Rev. Rul. 81–100, but
that does not satisfy the separate account requirement of paragraph (6) of the Holding of Rev.
Rul. 2011–1. Amendment 2 is for a group trust that received a determination letter from the
Service prior to January 10, 2011, that the group trust satisfies Rev. Rul. 81–100, as modified by Rev. Rul. 2004–67, and that intends to permit custodial accounts under § 403(b)(7),
retirement income accounts under § 403(b)(9), or § 401(a)(24) governmental retirement plans
to participate in the group trust.
Forms

.03 Required Forms
(1) Form 8717, User Fee for Employee Plan Determination, Opinion, and Advisory Letter
Request.
(2) Form 2848, Power of Attorney and Declaration of Representative, or other written authorization allowing the VS practitioner to act as a representative of the employer with respect
to the request for a determination letter.
(3) Form 5316, Application for Group or Pooled Trust Ruling.

SECTION 14. AFFILIATED
SERVICE GROUPS; LEASED
EMPLOYEES
Scope

.01 This section provides procedures for determination letter requests on affiliated service
group status under § 414(m), and whether an employee is a leased employee and is deemed to
be an employee of the recipient employer for qualification purposes under § 414(n).

Employer must request the
determination under § 414(m) or
§ 414(n)

.02 Generally, a determination letter will indicate whether the employer is a member of
an affiliated service group under § 414(m) or whether an employee is a leased employee and
is deemed to be an employee of the recipient employer under § 414(n) only if the employer
requests such determination, and submits with the determination letter application the information specified in section 14.06 or section 14.07 below.

Forms

.03 Form 5300 is submitted for a request on affiliated service group status or leased employee status. Form 5307 cannot be used for this purpose.

Employer is responsible for
.04 An employer is responsible for determining at any particular time whether it is a member
determining status under § 414(m) of an affiliated service group and, if so, whether its plan(s) continues to meet the requirements
and § 414(n)
of § 401(a) taking into account § 414(m). An employer or plan administrator is also responsible
for taking action relative to the employer’s qualified plan if that employer becomes, or ceases
to be, a member of an affiliated service group. An employer that is the recipient of services
of leased employees within the meaning of § 414(n) is also responsible for determining at any
particular time whether a leased employee is deemed to be an employee of the recipient for
qualified plan purposes.
Pre-approved plans

Sec. 13.02
January 3, 2012

.05 An employer that has adopted a pre-approved plan and wants a determination with respect to § 414(m) or § 414(n) must submit the information required by section 14.06 or section
14.07 of this revenue procedure and any other materials necessary to make a determination
along with Form 5300. When an employer requests a determination regarding affiliated service group status or leased employees, the plan will be reviewed on the basis of the Cumulative
List that was used to review the underlying pre-approved plan.

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Required information for § 414(m)
.06 A determination letter will be issued with respect to § 414(m) only if the employer
determination
requests such a determination and the application includes:
(1) A description of the nature of the business of the employer, specifically whether it is a
service organization or an organization whose principal business is the performance of management functions for another organization, including the reasons therefor;
(2) The identification of other members (or possible members) of the affiliated service
group;
(3) A description of the business of each member (or possible member) of the affiliated
service group, describing the type of organization (corporation, partnership, etc.) and indicating whether the member is a service organization or an organization whose principal business
is the performance of management functions for the other group member(s);
(4) The ownership interests between the employer and the members (or possible members)
of the affiliated service group (including ownership interests as described in § 414(m)(2)(B)(ii)
or § 414(m)(6)(B));
(5) A description of services performed for the employer by the members (or possible members) of the affiliated service group, or vice versa (including the percentage of each member’s
(or possible member’s) gross receipts and service receipts provided by such services, if available, and data as to whether such services are a significant portion of the member’s business)
and whether, as of December 13, 1980, it was not unusual for the services to be performed by
employees of organizations in that service field in the United States;
(6) A description of how the employer and the members (or possible members) of the affiliated service group associate in performing services for other parties;
(7) In the case of a management organization under § 414(m)(5):
(a) A description of the management functions, if any, performed by the employer
for the member(s) (or possible member(s)) of the affiliated service group, or received by the
employer from any other members (or possible members) of the group (including data explaining whether the management functions are performed on a regular and continuous basis) and
whether or not it is unusual for such management functions to be performed by employees of
organizations in the employer’s business field in the United States;
(b) If management functions are performed by the employer for the member (or possible members) of the affiliated service group, a description of what part of the employer’s
business constitutes the performance of management functions for the member (or possible
member) of the group (including the percentage of gross receipts derived from management
activities as compared to the gross receipts from other activities);
(8) A copy of any ruling issued by the headquarters office on whether the employer is an
affiliated service group; a copy of any prior determination letter that considered the effect of
§ 414(m); and, if known, a copy of any such ruling or determination letter issued to any other
member (or possible member) of the same affiliated service group, accompanied by a statement
as to whether the facts upon which the ruling or determination letter was based have changed.
Required information for § 414(n)
determination

.07 A determination letter will be issued with respect to § 414(n) only if the employer requests such a determination and the application includes:
(1) A description of the nature of the business of the recipient organization;
(2) A copy of the relevant leasing agreement(s);
(3) A description of the function of all leased employees within the trade or business of
the recipient organization (including data as to whether all leased employees are performing
services on a substantially full-time basis);

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Sec. 14.07
January 3, 2012

(4) A description of facts and circumstances relevant to a determination of whether such
leased employees’ services are performed under primary direction or control by the recipient
organization (including whether the leased employees are required to comply with instructions
of the recipient about when, where, and how to perform the services, whether the services must
be performed by particular persons, whether the leased employees are subject to the supervision of the recipient, and whether the leased employees must perform services in the order or
sequence set by the recipient);
(5) If the recipient organization is relying on any qualified plan(s) maintained by the employee leasing organization for purposes of qualification of the recipient organization’s plan,
a description of such plan(s) (including a description of the contributions or benefits provided
for all leased employees which are attributable to services performed for the recipient organization, plan eligibility, and vesting.)
SECTION 15. WAIVER OF
MINIMUM FUNDING
Scope

.01 This section provides procedures with respect to defined contribution plans for requesting a waiver of the minimum funding standard account and requesting a determination letter
on any plan amendment required for the waiver.

Applicability of Rev. Proc.
2004–15

.02 The procedures in Rev. Proc. 2004–15, 2004–1 C.B. 490, apply to the request for a
waiver of the minimum funding requirement. Section 2 of that revenue procedure contains the
procedures for obtaining waivers of the minimum funding standards in the instance of defined
benefit plans. In order to provide maximum flexibility in requesting a waiver for a defined
contribution pension plan, section 3 of that revenue procedure contains three alternative methods as described more fully in Rev. Proc. 2004–15.

Waiver request submitted to EP
Technical

.03 The first two alternatives involve (1) a waiver ruling only, without submission of a plan
amendment, and (2) a waiver ruling only, with submission of a plan amendment. Under these
first two procedures, requests for waivers must be submitted to:
Employee Plans
Internal Revenue Service
Commissioner, TE/GE
Attention: SE:T:EP:RA
P.O. Box 27063
McPherson Station
Washington, D.C. 20038

In both cases, the applicant must satisfy the requirements of section 2 of Rev. Proc.
2004–15, other than the parts applicable only to defined benefit plans.
If a plan amendment is not submitted or is not already part of a plan, the Service will supply
an amendment which will, if adopted, satisfy section 3 of Rev. Rul. 78–223, 1978–1 C.B. 125.
The waiver will be conditioned upon the plan being amended by adoption of that amendment,
within a reasonable period of time, and will contain a caveat stating that the ruling is not a
ruling as to the effect the plan provision may have on the qualified status of the plan. The
applicant may request reconsideration within 60 days of the date of the letter if the amendment
is inappropriate, by submitting a letter to the above address.
If the request for the waiver is submitted along with a plan amendment, the plan provisions
necessary to satisfy section 3 of Rev. Rul. 78–223 must be included. All waivers issued
pursuant to this alternative will contain a caveat indicating that the ruling is not a ruling as to
the effect any plan provision may have on the qualified status of the plan.
Waiver and determination letter
.04 The third alternative is a request for a waiver ruling and a determination letter request.
request submitted to EP Technical Both requests must be submitted by the applicant to EP Technical at the address set forth in

Sec. 14.07
January 3, 2012

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2012–1 I.R.B.

section 15.03 where it will be treated as if it had been submitted as a request for technical
advice from the Determinations Manager. The request must:
(1) satisfy all the procedural requirements of 3.03 of Rev. Proc. 2004–15;
(2) include a completed Form 5300 and all necessary documents, plan amendments and
information required by the Form 5300 and Rev. Proc. 2004–15 for approval;
(3) indicate which Area Office has audit jurisdiction over the return; and
(4) submit the user fee for both requests to EP Technical.
In addition, the procedures for notice and comment by interested parties, contained in sections 17, 18 and 19 of this revenue procedure, and the notice and comment procedures provided
in section 2.02 of Rev. Proc. 2004–15 must be satisfied. Comments will be forwarded to the
Determinations Office that is considering the determination letter request for the plan amendments.
Handling of the request

.05 The waiver request described in section 15.04 above will be handled by EP Technical
as follows:
(1) The waiver request and supporting documents will be forwarded to EP Technical,
SE:T:EP:RA:T, which will treat the request as a technical advice on the qualification issue
with respect to the plan provisions necessary to satisfy section 3 of Rev. Rul. 78–223.
(2) The appropriate Determinations Office will be notified of the request. In order not to
delay the processing of the request, all materials relating to the determination letter request
will be forwarded by EP Technical to the Determinations Manager for consideration while the
technical advice request is completed.
(3) EP Technical will consider both issues. If a waiver is to be granted and if EP Technical
believes that qualification of the plan is not adversely affected by the plan amendment, the
mandatory technical advice memorandum will be issued to the Determinations Manager. The
Determinations Manager must decide within 10 working days from the date of the technical
advice memorandum either to furnish the applicant with the technical advice memorandum
and with a favorable advance determination letter, or to ask for reconsideration of the technical
advice memorandum. This request must be in writing. An initial written notice of intent to
make this request may be submitted within 10 working days of the date of the technical advice
memorandum and followed by a written request within 30 working days from the date of such
written notice. If the Determinations Manager does not ask for reconsideration of the technical
advice memorandum within 10 working days, EP Technical will issue the waiver ruling. This
ruling will not contain the caveat described in section 3.02 of Rev. Proc. 2004–15.

When waiver request should be
submitted

.06 In the case of a plan other than a multiemployer plan, all waiver requests must be submitted to the Service no later than the 15th day of the third month following the close of the plan
year for which the waiver is requested. The Service may not extend this statutory deadline. A
request for a waiver with respect to a multiemployer plan generally must be submitted no later
than the close of the plan year following the plan year for which the waiver is requested.
In seeking a waiver with respect to a plan year that has not yet ended, the applicant may have
difficulty in furnishing sufficient current evidence in support of the request. For this reason it
is generally advisable that such advance request be submitted no earlier than 180 days prior to
the end of the plan year for which the waiver is requested.

SECTION 16. SECTION 401(h)
AND § 420 DETERMINATION
LETTERS
Scope

2012–1 I.R.B.

.01 This section provides procedures for requesting determination letters (i) with respect
to whether the requirements of § 401(h) are satisfied in a plan with retiree medical benefit

217

Sec. 16.01
January 3, 2012

features and (ii) on plan language that permits, pursuant to § 420, the transfer of assets in a
defined benefit plan to a health benefit account described in § 401(h).
Required information for § 401(h)
determination

.02 EP Determinations will issue a determination letter that considers whether the requirements of § 401(h) are satisfied in a plan with retiree medical benefit features only if the plan
sponsor requests such a determination and the sponsor’s application includes, in addition to the
application forms and any other material required by this revenue procedure, a cover letter that
requests consideration of § 401(h). The cover letter must specifically state that consideration
is being requested with regard to § 401(h) in addition to other matters under § 401(a) and must
specifically state the location of plan provisions that satisfy the requirements of § 401(h). Part I
of the checklist in the Appendix of this revenue procedure may be used to identify the location
of relevant plan provisions.

Required information for § 420
determination

.03 EP Determinations will consider the qualified status of certain plan language designed
to comply with § 420 only if the plan sponsor requests such consideration in a cover letter.
The cover letter must specifically state (i) whether consideration is being requested only with
regard to § 420, or (ii) whether consideration is being requested with regard to § 420 in addition
to other matters under § 401(a). (If consideration of other matters under § 401(a) is being
requested, the application forms and other material required by this revenue procedure must
also be submitted.) The cover letter must specifically state the location of plan provisions that
satisfy each of the following requirements. Parts I and II of the checklist in the Appendix of
this revenue procedure may be used to identify the location of relevant plan provisions.
(1) The plan must include a health benefits account as described in § 401(h).
(2) The plan must provide that transfers shall be limited to transfers of “excess assets” as
defined in § 420(e)(2).
(3) The plan must provide that only one transfer may be made in a taxable year. However,
for purposes of determining whether the rule in the preceding sentence is met, a plan may
provide that a transfer will not be taken into account if it is a transfer that:
(a) Is made after the close of the taxable year preceding the employer’s first taxable year
beginning after December 31, 1990, and before the earlier of (i) the due date (including extensions) for the filing of the return of tax for such preceding year, or (ii) the date such return is
filed; and
(b) Does not exceed the expenditures of the employer for qualified current retiree health
liabilities for such preceding taxable year.
(4) The plan must provide that the amount transferred shall not exceed the amount which is
reasonably estimated to be the amount the employer will pay out (whether directly or through
reimbursement) of the health benefit account during the taxable year of the transfer for “qualified current retiree health liabilities,” as defined in § 420(e)(1).
(5) The plan must provide that no transfer will be made after December 31, 2013.
(6) The plan must provide that any assets transferred, and any income allocable to such
assets, shall be used only to pay qualified current retiree health liabilities for the taxable year
of transfer.
(7) The plan must provide that any amounts transferred to a health benefits account (and
income attributable to such amounts) which are not used to pay qualified current retiree health
liabilities shall be transferred back to the defined benefit portion of the plan.
(8) The plan must provide that the amounts paid out of a health benefits account will be
treated as paid first out of transferred assets and income attributable to those assets.
(9) The plan must provide that the accrued pension benefits for participants and beneficiaries
must become nonforfeitable as if the plan had terminated immediately prior to the transfer
(or in the case of a participant who separated during the 1-year period ending on the date of

Sec. 16.01
January 3, 2012

218

2012–1 I.R.B.

transfer immediately before such separation). In the case of a transfer described in § 420(b)(4)
that relates to a prior year, the plan must provide that the accrued benefit of a participant who
separated from service during the taxable year to which such transfer relates will be recomputed
and treated as nonforfeitable immediately before such separation.
(10) The plan must provide that a transfer will be permitted only if each group health
plan or arrangement under which health benefits are provided contains provisions satisfying
§ 420(c)(3). The plan must define “applicable employer cost”, “cost maintenance period”,
and “benefit maintenance period”, as applicable, consistent with § 420(c)(3), as amended. If
applicable, the provisions of the plan must also reflect the transition rule in § 535(c)(2) of
the Tax Relief Extension Act of 1999 (TREA ’99). The plan may provide that § 420(c)(3) is
satisfied separately with respect to individuals eligible for benefits under Title XVIII of the
Social Security Act at any time during the taxable year and with respect to individuals not so
eligible.
(11) The plan must provide that transferred assets cannot be used for key employees (as
defined in § 416(i)(1)).

PART II. INTERESTED PARTY NOTICE AND COMMENT
SECTION 17. WHAT RIGHTS
TO NOTICE AND COMMENT
DO INTERESTED PARTIES
HAVE?
Rights of interested parties

.01 Persons who qualify as interested parties under § 1.7476–1(b), have the following rights:
(1) To receive notice, in accordance with section 18 below, that an application for an advance
determination will be filed regarding the qualification of plans described in §§ 401, 403(a), 409
and/or 4975(e)(7);
(2) To submit written comments with respect to the qualification of such plans to the Service;
(3) To request the Department of Labor to submit a comment to the Service on behalf of the
interested parties; and
(4) To submit written comments to the Service on matters with respect to which the Department of Labor was requested to comment but declined.

Comments by interested parties

.02 Comments submitted by interested parties must be received by EP Determinations by
the 45th day after the day on which the application for determination is received by EP Determinations. (However, see sections 17.03 and 17.04 for filing deadlines where the Department
of Labor has been requested to comment.) Such comments must be in writing, signed by the
interested parties or by an authorized representative of such parties (as provided in section
9.02(11) of Rev. Proc. 2012–4), addressed to EP Determinations at the address in section 6.17,
and contain the following information:
(1) The names of the interested parties making the comments;
(2) The name and taxpayer identification number of the applicant for a determination;
(3) The name of the plan, the plan identification number, and the name of the plan administrator;
(4) Whether the parties submitting the comment are:
(a) Employees eligible to participate under the plan,
(b) Employees with accrued benefits under the plan, or former employees with vested benefits under the plan,

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Sec. 17.02
January 3, 2012

(c) Beneficiaries of deceased former employees who are eligible to receive or are currently
receiving benefits under the plan,
(d) Employees not eligible to participate under the plan.
(5) The specific matters raised by the interested parties on the question of whether the plan
meets the requirements for qualification involving §§ 401 and 403(a), and how such matters
relate to the interests of the parties making the comment; and
(6) The address of the interested party submitting the comment (or if a comment is submitted jointly by more than one party, the name and address of a designated representative) to
which all correspondence, including a notice of the Service’s final determination with respect
to qualification, should be sent. (The address designated for notice by the Service will also
be used by the Department of Labor in communicating with the parties submitting a request
for comment.) The designated representative may be one of the interested parties submitting
the comment or an authorized representative. If two or more interested parties submit a single
comment and one person is not designated in the comment as the representative for receipt of
correspondence, a notice of determination mailed to any interested party who submitted the
comment shall be notice to all the interested parties who submitted the comment for purposes
of § 7476(b)(5) of the Code.
Requests for DOL to submit
comments

.03 A request to the Department of Labor to submit to EP Determinations a comment pursuant to section 3001(b)(2) of ERISA must be made in accordance with the following procedures.
(1) The request must be received by the Department of Labor by the 25th day after the day
the application for determination is received by EP Determinations. However, if the parties
requesting the Department to submit a comment wish to preserve the right to comment to EP
Determinations in the event the Department declines to comment, the request must be received
by the Department by the 15th day after the day the application for determination is received
by EP Determinations.
(2) The request to the Department of Labor to submit a comment to EP Determinations
must:
(a) Be in writing;
(b) Be signed as provided in section 17.02 above;
(c) Contain the names of the interested parties requesting the Department to comment and
the address of the interested party or designated representative to whom all correspondence
with respect to the request should be sent. See also section 17.02(6) above;
(d) Contain the information prescribed in section 17.02(2), (3), (4), (5) and (6) above;
(e) Indicate that the application was or will be submitted to EP Determinations at the address in section 6.17;
(f) Contain a statement of the specific matters upon which the Department’s comment is
sought, as well as how such matters relate to the interested parties making the request; and
(g) Be addressed as follows:
Deputy Assistant Secretary
Employee Benefits Security Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Attention: 3001 Comment Request

Sec. 17.02
January 3, 2012

220

2012–1 I.R.B.

Right to comment if DOL declines
to comment

.04 If a request described in 17.03 is made and the Department of Labor notifies the interested parties making the request that it declines to comment on a matter concerning qualification of the plan which was raised in the request, the parties submitting the request may still
submit a comment to EP Determinations on such matter. The comment must be received by
the later of the 45th day after the day the application for determination is received by EP Determinations or the 15th day after the day on which notification is given by the Department that it
declines to submit a comment on such matter. (See section 17.07 for the date of notification.)
In no event may the comment be received later than the 60th day after the day the application
for determination was received. Such a comment must comply with the requirements of section 17.02 and include a statement that the comment is being submitted on matters raised in a
request to the Department upon which the Department declined to comment.

Confidentiality of comments

.05 For rules regarding the confidentiality of contents of written comments submitted by
interested parties to the Service pursuant to section 17.02 or 17.04, see § 601.201(o)(5) of the
Statement of Procedural Rules.

Availability of comments

.06 For rules regarding the availability to the applicant of copies of all comments on the
application submitted pursuant to section 17.01(1), (2), (3) and (4) of this revenue procedure,
see § 601.201(o)(5) of the Statement of Procedural Rules.

When comments are deemed
made

.07 An application for an advance determination, a comment to EP Determinations, or a
request to the Department of Labor shall be deemed made when it is received by EP Determinations, or the Department. Notification by the Department that it declines to comment shall
be deemed given when it is received by the interested party or designated representative. The
notice described in section 18.01 below shall be deemed given when it is posted or sent to
the person in the manner described in § 1.7476–2. In the case of an application, comment,
request, notification, or notice that is sent by mail or a private delivery service that has been
designated under § 7502(f), the date as of which it shall be deemed received will be determined
under § 7502. However, if such an application, comment, request, notification, or notice is not
received within a reasonable period from the date determined under § 7502, the immediately
preceding sentence shall not apply.

SECTION 18. WHAT ARE
THE GENERAL RULES FOR
NOTICE TO INTERESTED
PARTIES?
Notice to interested parties

.01 Notice that an application for an advance determination regarding the qualification of a
plan that is described in §§ 401, 403(a), 409 and 4975(e)(7) and that is subject to § 410 is to be
made must be given to all interested parties in the manner prescribed in § 1.7476–2(c) and in
accordance with the requirements of this section. A notice to interested parties is deemed to be
provided in a manner that satisfies § 1.7476–2(c) if the notice is delivered using an electronic
medium under a system that satisfies the requirements of § 1.402(f)–1 Q&A.

Time when notice must be given

.02 Notice must be given not less than 10 days nor more than 24 days prior to the day the
application for a determination is made. If, however, an application is returned to the applicant
for failure to adequately satisfy the notification requirements with respect to a particular group
or class of interested parties, the applicant need not cause notice to be given to those groups or
classes of interested parties with respect to which the notice requirement was already satisfied
merely because, as a result of the resubmission of the application, the time limitations of this
subsection would not be met.

Content of notice

.03 The notice referred to in section 18.01 shall contain the following information:
(1) A brief description identifying the class or classes of interested parties to whom the
notice is addressed (e.g., all present employees of the employer, all present employees eligible
to participate);
(2) The name of the plan, the plan identification number, and the name of the plan administrator;

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Sec. 18.03
January 3, 2012

(3) The name and taxpayer identification number of the applicant for a determination;
(4) That an application for a determination as to the qualified status of the plan is to be made
to the Service at the address in section 6.17, and stating whether the application relates to an
initial qualification, a plan amendment, termination, or a partial termination;
(5) A description of the class of employees eligible to participate under the plan;
(6) Whether or not the Service has issued a previous determination as to the qualified status
of the plan;
(7) A statement that any person to whom the notice is addressed is entitled to submit, or
request the Department of Labor to submit, to EP Determinations, a comment on the question of
whether the plan meets the requirements of § 401 or 403(a); that two or more such persons may
join in a single comment or request; and that if such persons request the Department of Labor to
submit a comment and the Department of Labor declines to do so with respect to one or more
matters raised in the request, the persons may still submit a comment to EP Determinations
with respect to the matters on which the Department declines to comment. The Pension Benefit
Guaranty Corporation (PBGC) may also submit comments. In every instance where there is
either a final adverse termination or a distress termination, the Service formally notifies the
PBGC for comments;
(8) The specific dates by which a comment to EP Determinations or a request to the Department of Labor must be received in order to preserve the right of comment (see section 17
above);
(9) The number of interested parties needed in order for the Department of Labor to comment; and
(10) Except to the extent that the additional informational material required to be made
available by sections 18.05 through 18.09 are included in the notice, a description of a reasonable procedure whereby such additional informational material will be available to interested
parties (see section 18.04). (Examples of notices setting forth the above information, in a case
in which the additional information required by sections 18.05 through 18.09 will be made
available at places accessible to the interested parties, are set forth in the Exhibit attached to
this revenue procedure.)
.04 The procedure referred to in section 18.03(10), whereby the additional informational
Procedures for making
information available to interested material required by sections 18.05 through 18.09 will (to the extent not included in the notice) be made available to interested parties, may consist of making such material available for
parties
inspection and copying by interested parties at a place or places reasonably accessible to such
parties, or supplying such material by using a method of delivery or a combination thereof that
is reasonably calculated to ensure that all interested parties will have access to the materials,
provided such procedure is immediately available to all interested parties, is designed to supply them with such additional informational material in time for them to pursue their rights
within the time period prescribed, and is available until the earlier of: 1) the filing of a pleading commencing a declaratory judgment action under § 7476 with respect to the qualification
of the plan; or 2) the 92nd day after the day the notice of final determination is mailed to the
applicant. Reasonable charges to interested parties for copying and/or mailing such additional
informational material are permissible.
Information to be available to
interested parties

.05 Unless provided in the notice, or unless section 18.06 applies, there shall be made available to interested parties under a procedure described in section 18.04:
(1) An updated copy of the plan and the related trust agreement (if any); and
(2) The application for determination.

Special rules if there are fewer
than 26 participants

Sec. 18.03
January 3, 2012

.06 If there would be fewer than 26 participants in the plan, as described in the application
(including, as participants, former employees with vested benefits under the plan, beneficiaries
of deceased former employees currently receiving benefits under the plan, and employees who

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2012–1 I.R.B.

would be eligible to participate upon making mandatory employee contributions, if any), then
in lieu of making the materials described in section 18.05 available to interested parties who are
not participants (as described above), there may be made available to such interested parties a
document containing the following information:
(1) A description of the plan’s requirements respecting eligibility for participation and benefits and the plan’s benefit formula;
(2) A description of the provisions providing for nonforfeitable benefits;
(3) A description of the circumstances which may result in ineligibility, or denial or loss of
benefits;
(4) A description of the source of financing of the plan and the identity of any organization
through which benefits are provided;
(5) A description of any optional forms of benefits described in § 411(d)(6) which have been
reduced or eliminated by plan amendment; and
(6) Any coverage schedule or other demonstration submitted with the application to show
that the plan meets the requirements of §§ 401(a)(4) and 410(b).
However, once an interested party or designated representative receives a notice of final determination, the applicant must, upon request, make available to such interested party (whether
or not the plan has fewer than 26 participants) an updated copy of the plan and related trust
agreement (if any) and the application for determination.
Information described in
§ 6104(a)(1)(D) should not be
included

.07 Information of the type described in § 6104(a)(1)(D) should not be included in the application, plan, or related trust agreement submitted to the Service. Accordingly, such information
should not be included in any of the material required by section 18.05 or 18.06 to be available
to interested parties.

Availability of additional
information to interested parties

.08 Unless provided in the notice, there shall be made available to interested parties under
a procedure described in section 18.04, any additional document dealing with the application
which is submitted by or for the applicant to the Service, or furnished by the Service to the applicant; provided, however, if there would be fewer than 26 participants in the plan as described
in the application (including, as participants, former employees with vested benefits under the
plan, beneficiaries of deceased former employees currently receiving benefits under the plan,
and employees who would be eligible to participate upon making mandatory employee contributions, if any), such additional documents need not be made available to interested parties
who are not participants (as described above) until they, or their designated representative, receive a notice of final determination. The applicant may also withhold from such inspection
and copying information described in § 6104(a)(1)(C) and (D) which may be contained in such
additional documents.

Availability of notice to interested
parties

.09 Unless provided in the notice, there shall be made available to all interested parties under
a procedure described in section 18.04 the material described in sections 17.02 through 17.07
above.

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January 3, 2012

PART III. PROCESSING DETERMINATION LETTER REQUESTS
SECTION 19. HOW DOES
THE SERVICE HANDLE
DETERMINATION LETTER
REQUESTS
Oral advice

.01 Oral advice.
(1) The Service does not issue determination letters on oral requests. However, personnel
in EP Determinations ordinarily will discuss with taxpayers or their representatives inquiries
regarding: substantive tax issues; whether the Service will issue a determination letter on particular issues; and questions relating to procedural matters about submitting determination letter requests. Any discussion of substantive issues will be at the discretion of the Service on a
time available basis, will not be binding on the Service, and cannot be relied upon as a basis
of obtaining retroactive relief under the provisions of § 7805(b). A taxpayer may seek oral
technical assistance from a taxpayer service representative when preparing a return or report,
under established procedures. Oral advice is advisory only, and the Service is not bound to
recognize it in the examination of the taxpayer’s return.
(2) The advice or assistance furnished, whether requested by personal appearance, telephone, or correspondence will be limited to general procedures, or will direct the inquirer to
source material, such as pertinent Code provisions, regulations, revenue procedures, and revenue rulings that may aid the inquirer in resolving the question or problem.

Conferences

Determination letter based solely
on administrative record

.02 EP Determinations may grant a conference upon written request from a taxpayer or his
representative, provided the request shows that a substantive plan, amendment, etc., has been
developed for submission to the Service, but that special problems or issues are involved, and
EP Determinations concludes that a conference would be warranted in the interest of facilitating review and determination when the plan, etc., is formally submitted. See section 6.18
regarding the right to a status conference on applications pending for at least 270 days.
.03 Administrative Record
(1) In the case of a request for a determination letter, the determination of EP Determinations
or the appeals office on the qualification or non- qualification of the retirement plan shall be
based solely upon the facts contained in the administrative record. The administrative record
shall consist of the following:
(a) The request for determination, the retirement plan and any related trust instruments,
and any written modifications or amendments made by the applicant during the proceedings
within the Service;
(b) All other documents submitted to the Service by, or on behalf of, the applicant with
respect to the request for determination;
(c) All written correspondence between the Service and the applicant with respect to the
request for determination and any other documents issued to the applicant from the Service;
(d) All written comments submitted to the Service pursuant to sections 17.01(2), (3), and
(4) above, and all correspondence relating to comments submitted between the Service and persons (including PBGC and the Department of Labor) submitting comments pursuant to sections
17.01(2), (3), and (4) above; and
(e) In any case in which the Service makes an investigation regarding the facts as represented or alleged by the applicant in the request for determination or in comments submitted
pursuant to sections 17.01(2), (3), and (4) above, a copy of the official report of such investigation.
(2) The administrative record shall be closed upon the earlier of the following events:

Sec. 19
January 3, 2012

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2012–1 I.R.B.

(a) The date of mailing of a notice of final determination by the Service with respect to the
application for determination; or
(b) The filing of a petition with the United States Tax Court seeking a declaratory judgment
with respect to the retirement plan.
(3) Any oral representation or modification of the facts as represented or alleged in the application for determination or in a comment filed by an interested party, which is not reduced to
writing shall not become a part of the administrative record and shall not be taken into account
in the determination of the qualified status of the retirement plan by EP Determinations or the
appeals office.
Notice of final determination

.04 In the case of final determination, the notice of final determination:
(1) Shall be the letter issued by EP Determinations or the appeals office which states that
the applicant’s plan satisfies the qualification requirements of the Code. The favorable determination letter will be sent by certified or registered mail where either an interested party, the
Department of Labor, or the PBGC has commented on the application for determination.
(2) Shall be the letter issued, by certified or registered mail, by EP Determinations or the
appeals office subsequent to a letter of proposed determination, stating that the applicant’s plan
fails to satisfy the qualification requirements of the Code.

Issuance of the notice of final
determination

.05 EP Determinations or the appeals office will send the notice of final determination to the
applicant, to the interested parties who have previously submitted comments on the application
to the Service (or to the persons designated by them to receive such notice), to the Department
of Labor in the case of a comment submitted by the Department, and to PBGC if it has filed a
comment.

SECTION 20. EXHAUSTION OF
ADMINISTRATIVE REMEDIES
In general

.01 For purposes of § 7476(b)(3), a petitioner shall be deemed to have exhausted the administrative remedies available within the Service upon the completion of the steps described in
sections 20.02, 20.03, 20.04, or 20.05 subject, however, to sections 20.06 and 20.07. If applicants, interested parties, or the PBGC do not complete the applicable steps described below,
they will not have exhausted their respective available administrative remedies as required by
§ 7476(b)(3) and will, thus, be precluded from seeking declaratory judgment under § 7476 except to the extent that section 20.05 or 20.08 applies.

Steps for exhausting
administrative remedies

.02 In the case of an applicant, with respect to any matter relating to the qualification of a
plan, the steps referred to in section 20.01 are:
(1) Filing a completed application with EP Determinations pursuant to this revenue procedure;
(2) Complying with the requirements pertaining to notice to interested parties as set forth in
this revenue procedure and § 1.7476–2 of the regulations; and,
(3) Appealing to the appropriate appeals office pursuant to paragraph 601.201(o)(6) of the
Statement of Procedural Rules, in the event a notice of proposed adverse determination is issued by EP Determinations.

Applicant’s request for § 7805(b)
relief

2012–1 I.R.B.

.03 Consideration of relief under § 7805(b) will be included as one of the applicant’s steps
in exhausting administrative remedies only if the applicant requests EP Determinations to seek
technical advice from EP Technical on the applicability of such relief. The applicant’s request
must be made in writing according to the procedures for requesting technical advice (see section 19 of Rev. Proc. 2012–5).

225

Sec. 20.03
January 3, 2012

Interested parties

.04 In the case of an interested party or the PBGC, the steps referred to in section 20.01 are,
with respect to any matter relating to the qualification of the plan, submitting to EP Determinations a comment raising such matter in accordance with section 17.01(2) above, or requesting
the Department of Labor to submit to EP Determinations a comment with respect to such matter in accordance with section 17.01(3) and, if the Department of Labor declines to comment,
submitting the comment in accordance with section 17.01(4) above, so that it may be considered by the Service through the administrative process.

Deemed exhaustion of
administrative remedies

.05 An applicant, an interested party, or the PBGC shall in no event be deemed to have
exhausted administrative remedies prior to the earlier of:
(1) The completion of those steps applicable to each as set forth in sections 20.01, 20.02,
20.03 or 20.04, which constitute their administrative remedies; or,
(2) The expiration of the 270-day period described in § 7476(b)(3), which period shall be
extended in a case where there has not been a completion of all the steps referred to in section
20.02 and the Service has proceeded with due diligence in processing the application for determination.

Service must act on appeal

.06 The step described in section 20.02(3) will not be considered completed until the Service
has had a reasonable time to act upon the appeal.

Service must act on § 7805(b)
request

.07 Where the applicant has requested EP Determinations to seek technical advice on the
applicability of § 7805(b) relief, the applicant’s administrative remedies will not be considered
exhausted until EP Technical has had a reasonable time to act upon the request for technical
advice.

Effect of technical advice request

.08 The step described in section 20.02(3) will not be available or necessary with respect to
any issue on which technical advice has been obtained from EP Technical.

SECTION 21. WHAT EFFECT
WILL AN EMPLOYEE PLAN
DETERMINATION LETTER
HAVE?
Scope of reliance on determination
.01 A determination letter issued pursuant to this revenue procedure contains only the opinletter
ion of the Service as to the qualification of the particular plan involving the provisions of §§ 401
and 403(a) and the status of a related trust, if any, under § 501(a). Such a determination letter is based on the facts and demonstrations presented to the Service in connection with the
application for the determination letter and may not be relied upon after a change in material
fact or the effective date of a change in law, except as provided. The Service may determine,
based on the application form, the extent of review of the plan document. Failure to disclose
a material fact or misrepresentation of a material fact adversely affects the reliance that would
otherwise be obtained through the issuance by the Service of a favorable determination letter.
Similarly, failure to accurately provide any of the information called for on any form required
by this revenue procedure may result in no reliance. Applicants are advised to retain copies of
all supporting data submitted with their applications. Failure to do so may limit the scope of
reliance.
Sections 13 and 14 of Rev. Proc.
2011–4 applicable

.02 Except as otherwise provided in this section, determination letters are governed, generally, by the provisions of sections 13 and 14 of Rev. Proc. 2012–4.

Effect of subsequent publication
of revenue ruling, etc.

.03 The prior qualification of a plan as adopted by an employer will not be considered to be
adversely affected by the publication of a revenue ruling, a revenue procedure, or an administrative pronouncement within the meaning of § 1.6661–3(b)(2) of the regulations where:
(1) The plan was the subject of a favorable determination letter and the request for that letter
contained no misstatement or omission of material facts;
(2) The facts subsequently developed are not materially different from the facts on which
the determination letter was based;

Sec. 20.04
January 3, 2012

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2012–1 I.R.B.

(3) There has been no change in the applicable law; and
(4) The employer that established the plan acted in good faith in reliance on the determination letter.
However, all such plans must be amended to comply with the published guidance for subsequent years, in accordance with the rules set forth in Rev. Proc. 2007–44. See, in particular,
Part II of that revenue procedure.
Determination letter does not
apply to taxability issues

SECTION 22. EFFECT
ON OTHER REVENUE
PROCEDURES

.04 While a favorable determination letter may serve as a basis for determining deductions
for employer contributions thereunder, it is not to be taken as an indication that contributions
are necessarily deductible as made. This latter determination can be made only upon an examination of the employer’s tax return, in accordance with the limitations, and subject to the
conditions of, § 404.
Rev. Proc. 2011–6 is superseded. Rev. Proc. 2011–49 is modified.

SECTION 23. EFFECTIVE
DATE

This revenue procedure is effective February 1, 2012, for plans under the 5-year remedial
amendment cycle (other than terminating plans), and effective May 1, 2012, for terminating
plans and for plans under the 6-year remedial amendment cycle.

SECTION 24. PAPERWORK
REDUCTION ACT

The collections of information contained in this revenue procedure have been reviewed and
approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545–1520.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
The collections of information in this revenue procedure are in sections 6.05, 6.16, 6.18,
6.19, 6.20, 7.04, 13, 14, 15, 16, 19.02, and 21.04. This information is required to determine
plan qualification. This information will be used to determine whether a plan is entitled to
favorable tax treatment. The collections of information are mandatory. The likely respondents
are businesses or other for-profit institutions.
The estimated total annual reporting and/or recordkeeping burden is 163,186 hours.
The estimated annual burden per respondent/recordkeeper varies from 1 hour to 40 hours,
depending on individual circumstances, with an estimated average of 2.02 hours. The estimated number of respondents and/or recordkeepers is 80,763.
The estimated annual frequency of responses (used for reporting requirements only) is once
every three years.
Books or records relating to a collection of information must be retained as long as their
contents may become material in the administration of any internal revenue law. Generally tax
returns and tax return information are confidential, as required by 26 U.S.C. 6103.

DRAFTING INFORMATION

2012–1 I.R.B.

The principal author of this revenue procedure is Eric Slack of the Employee Plans, Tax
Exempt and Government Entities Division. For further information regarding this revenue
procedure, please contact the Employee Plans taxpayer assistance telephone service at
1–877–829–5500 (a toll-free number) or Mr. Slack at [email protected].

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January 3, 2012

EXHIBIT: SAMPLE NOTICE
TO INTERESTED PARTIES

The Exhibit set forth below, may be used to satisfy the requirements of section 18 of this
revenue procedure.
EXHIBIT: SAMPLE NOTICE TO INTERESTED PARTIES

1.

Notice To:

[describe class or classes of interested parties]

An application is to be made to the Internal Revenue Service for an advance determination on the qualification of the following
employee pension benefit plan:
2.
(name of plan)
3.
(plan number)
4.
(name and address of applicant)
5.
(applicant EIN)
6.
(name and address of plan administrator)
7.

for an advance determination as to whether the plan meets
The application will be filed on
the qualification requirements of § 401 or 403(a) of the Internal Revenue Code of 1986, with respect to the plan’s
[initial qualification, amendment, termination, or partial termination].
The application will be filed with:
EP Determinations
Internal Revenue Service
P.O. Box 12192
Covington, KY 41012–0192

8.

The employees eligible to participate under the plan are:

9.

The Internal Revenue Service
respect to the qualification of this plan.

[has/has not] previously issued a determination letter with

RIGHTS OF INTERESTED PARTIES
10.

You have the right to submit to EP Determinations, at the above address, either individually or jointly with other interested
parties, your comments as to whether this plan meets the qualification requirements of the Internal Revenue Code.
You may instead, individually or jointly with other interested parties, request the Department of Labor to submit, on your
behalf, comments to EP Determinations regarding qualification of the plan. If the Department declines to comment on all
or some of the matters you raise, you may, individually, or jointly if your request was made to the Department jointly,
submit your comments on these matters directly to EP Determinations.

REQUESTS FOR COMMENTS BY THE DEPARTMENT OF LABOR

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January 3, 2012

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2012–1 I.R.B.

11.

The Department of Labor may not comment on behalf of interested parties unless requested to do so by the lesser of 10
employees or 10 percent of the employees who qualify as interested parties. The number of persons needed for the
Department to comment with respect to this plan is
. If you request the Department to
comment, your request must be in writing and must specify the matters upon which comments are requested, and must
also include:
(1) the information contained in items 2 through 5 of this Notice; and
(2) the number of persons needed for the Department to comment.

A request to the Department to comment should be addressed as follows:
Deputy Assistant Secretary
Employee Benefits Security Administration
ATTN: 3001 Comment Request
U.S. Department of Labor,
200 Constitution Avenue, N.W.
Washington, D.C. 20210
COMMENTS TO THE INTERNAL REVENUE SERVICE
12.

Comments submitted by you to EP Determinations must be in writing and received by it by
.
However, if there are matters that you request the Department of Labor to comment upon on your behalf, and the Department
declines, you may submit comments on these matters to EP Determinations to be received by it within 15 days from the
time the Department notifies you that it will not comment on a particular matter, or by
,
whichever is later, but not after
. A request to the Department to comment on your behalf
must be received by it by
if you wish to preserve your right to comment on a matter upon
which the Department declines to comment, or by
if you wish to waive that right.

ADDITIONAL INFORMATION
13.

Detailed instructions regarding the requirements for notification of interested parties may be found in sections 17 and 18 of
Rev. Proc. 2012–6. Additional information concerning this application (including, where applicable, an updated copy of
the plan and related trust; the application for determination; any additional documents dealing with the application that
have submitted to the Service; and copies of section 17 of Rev. Proc. 2011–6 are available at
during the hours of
for inspection and copying. (There is a nominal charge for copying
and/or mailing.)

2012–1 I.R.B.

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January 3, 2012

APPENDIX
Checklist

As part of a § 401(h) or § 420 determination letter request described in section 16 of this revenue procedure the
following checklist may be completed and attached to the determination letter request. If the request relates to § 401(h)
but not to § 420, complete Part I only. If the request relates to § 420, complete Parts I and II.

PART I
CIRCLE
1.

Does the Plan contain a medical benefits account within the meaning of
§ 401(h) of the Code? If the medical benefits account is a new provision,
items “a” through “h” should be completed.

Yes No

a.

Does the medical benefits account specify the medical benefits
that will be available and contain provisions for determining the
amount that will be paid?

Yes No

b.

Does the medical benefits account specify who will benefit?

Yes No

c.

Does the medical benefits account indicate that such benefits,
when added to any life insurance protection in the Plan, will be
subordinate to retirement benefits? (This requirement will not
be satisfied unless the amount of actual contributions to provide
§ 401(h) benefits (when added to actual contributions for life
insurance protection under the Plan) does not exceed 25 percent of
the total actual contributions to the Plan (other than contributions
to fund past service credits), determined on an aggregate basis
since the inception of the § 401(h) arrangement.)

Yes No

d.

Does the medical benefits account maintain separate accounts with
respect to contributions to key employees (as defined in § 416(i)(1)
of the Code) to fund such benefits?

Yes No

e.

Does the medical benefits account state that amounts contributed
must be reasonable and ascertainable?

Yes No

f.

Does the medical benefits account provide for the impossibility
of diversion prior to satisfaction of liabilities (other than item “7”
below)?

Yes No

g.

Does the medical benefits account provide for reversion upon satisfaction of all liabilities (other than item “7” below)?

Yes No

h.

Does the medical benefits account provide that forfeitures must be
applied as soon as possible to reduce employer contributions to
fund the medical benefits?

Yes No

Does the Plan limit transfers to “Excess Assets” as defined in § 420(e)(2)
of the Code?

Yes No

SECTION

PART II
2.

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2012–1 I.R.B.

3.

Does the Plan provide that only one transfer may be made in a taxable
year (except with regard to transfers relating to prior years pursuant to
§ 420(b)(4) of the Code)?

Yes No

4.

Does the Plan provide that the amount transferred shall not exceed the
amount reasonably estimated to be paid for qualified current retiree health
liabilities?

Yes No

5.

Does the Plan provide that no transfer will be made after December 31,
2013?

Yes No

6.

Does the Plan provide that transferred assets and income attributable to such
assets shall be used only to pay qualified current retiree health liabilities for
the taxable year of transfer?

Yes No

7.

Does the Plan provide that any amounts transferred (plus income) that are
not used to pay qualified current retiree health liabilities shall be transferred
back to the defined benefit portion of the Plan?

Yes No

8.

Does the Plan provide that amounts paid out of a health benefits account
will be treated as paid first out of transferred assets and income attributable
to those assets?

Yes No

9.

Does the Plan provide that participants’ accrued benefits become nonforfeitable on a termination basis (i) immediately prior to transfer, or (ii) in
the case of a participant who separated within 1 year before the transfer,
immediately before such separation?

Yes No

10. In the case of transfers described in § 420(b)(4) of the Code relating to
1990, does the Plan provide that benefits will be recomputed and become
nonforfeitable for participants who separated from service in such prior
year as described in § 420(c)(2)?

Yes No

11. Does the Plan provide that transfers will be permitted only if each group
health plan or arrangement contains provisions satisfying § 420(c)(3) of the
Code, as amended?

Yes No

12. Does the Plan define “applicable employer cost”, “cost maintenance
period” and “benefit maintenance period”, as needed, consistently with
§ 420(c)(3) of the Code, as amended?

Yes No

13. Do the Plan’s provisions reflect the transition rule in section 535(c)(2) of
TREA’99, if applicable?

Yes No

14. Does the Plan provide that transferred assets cannot be used for key employees?

Yes No

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