Rev. Proc. 20011-49

26 CFR 601.201: Rulings and determination letters.
(Also Part I, §§ 401, 403 and 501; 1.401(a)–1, 1.403(a)–1, 1.501(a)–1.)

Rev. Proc. 2011–49
TABLE OF CONTENTS
SECTION 1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
SECTION 2. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
SECTION 3. CHANGES TO REVENUE PROCEDURE 2005–16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609

PART I — M&P PLANS
SECTION 4. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611
SECTION 5. PROVISIONS REQUIRED IN M&P PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612
SECTION 6. OPINION LETTERS — SCOPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
SECTION 7. OPINION LETTER APPLICATIONS — INSTRUCTIONS TO SPONSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
SECTION 8. APPROVED PLANS — MAINTENANCE OF APPROVED STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616
SECTION 9. WITHDRAWAL OF REQUESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616
SECTION 10. ABANDONED PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616
SECTION 11. RECORD KEEPING REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616
SECTION 12. M&P MASS SUBMITTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617

PART II — VOLUME SUBMITTER PLANS
SECTION 13. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619
SECTION 14. PROVISIONS REQUIRED IN EVERY VS PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620
SECTION 15. APPROVED PLANS — MAINTENANCE OF APPROVED STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621
SECTION 16. ADVISORY LETTERS — SCOPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621
SECTION 17. ADVISORY LETTERS — INSTRUCTIONS TO VS PRACTITIONERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622
SECTION 18. VS MASS SUBMITTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 623

PART III — ALL PRE-APPROVED PLANS
SECTION 19. EMPLOYER RELIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 623
SECTION 20. WHERE TO FILE AND OTHER RULES FOR APPLICATIONS AND LETTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 625
SECTION 21. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 626
SECTION 22. REVOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
SECTION 23. SECOND ON-CYCLE SUBMISSION PERIOD (POST - EGTRRA) FOR PRE-APPROVED DC
PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
SECTION 24. REMEDIAL AMENDMENT PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
SECTION 25. EFFECT ON OTHER DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
SECTION 26. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627

October 31, 2011

608

2011–44 I.R.B.

SECTION 27. PAPERWORK REDUCTION ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
DRAFTING INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 628

SECTION 1. PURPOSE
.01 Revenue Procedure 2005–16,
2005–1 C.B. 674, sets forth the procedures
of the Internal Revenue Service (Service)
for issuing opinion and advisory letters regarding the acceptability under §§ 401 and
403(a) of the Internal Revenue Code (the
“Code”) of the form of pre-approved plans
(that is, master and prototype (M&P) and
volume submitter (VS) plans). This revenue procedure modifies and supersedes
Rev. Proc. 2005–16. Section 3 describes
the changes to Rev. Proc. 2005–16 in this
revenue procedure.
.02 The second six-year remedial
amendment cycle for pre-approved defined contribution plans began on February 1, 2011 and ends on January 31,
2017. This revenue procedure provides
that as of February 1, 2011, the Service
began accepting opinion and advisory letter applications for pre-approved defined
contribution plans for the second six-year
remedial amendment cycle. The 12-month
applicable on-cycle submission period for
non-mass submitter sponsors and practitioners, word-for-word identical adopters,
and M&P minor modifier placeholder applications will end on January 31, 2012.
Section 18.02(1) of Rev. Proc. 2007–44,
2007–2 C.B. 54, provides that the 9-month
applicable on-cycle submission period for
sponsors and practitioners maintaining
defined contribution mass submitter
plans will end on October 31, 2011.
Section 23 of this revenue procedure
extends the submission deadline to submit
applications for opinion and advisory
letters for sponsors and practitioners
maintaining defined contribution mass
submitter plans from October 31, 2011 to
January 31, 2012. The 2010 Cumulative
List of Changes in Plan Qualification
Requirements, Notice 2010–90, 2010–2
C.B. 909 (2010 Cumulative List), is to be
used by plan sponsors and practitioners
submitting determination, opinion or
advisory letter applications for plans
during these periods. The Service will
announce the deadline for timely adoption
1

by employers when the review of the
pre-approved documents is close to being
completed. Applications for opinion and
advisory letters for pre-approved defined
benefit plans will be accepted beginning
February 1, 2013.1 It is expected that the
procedures for applying for opinion and
advisory letters will be updated from time
to time.
SECTION 2. BACKGROUND
.01 The procedures of the Service on
the issuance of opinion and advisory letters
regarding the acceptability of the form of
pre-approved plans are set forth in Rev.
Proc. 2005–16, as modified. This revenue
procedure modifies and supersedes Rev.
Proc. 2005-16.
.02 Revenue Procedure 2011–6, 2011–1
I.R.B. 195, sets forth the general procedures of the Service on the issuance of employee plans determination letters including determination letters for M&P and VS
plans.
.03 Revenue Procedure 2007–44, (as
modified by Rev. Proc. 2008–56, 2008–2
C.B. 826; Rev. Proc. 2009–36, 2009–2
C.B. 304; Notice 2009–97, 2009–2 C.B.
972; and Notice 2010–48, 2010–27 I.R.B
9), describes a system of cyclical remedial amendment periods under the Code.
Under this system, every individually designed plan qualified under § 401(a) or
403(a) has a regular, five-year remedial
amendment cycle, staggered and spread
over five-year periods, so that different
categories of plans have different cycles.
The effect of this system is that plan sponsors may apply for new determination letters generally only once every five years
in order to continue to have a letter on
which to rely. In addition, under this system every pre-approved plan generally has
a regular, six-year remedial amendment
cycle. Every pre-approved plan must be
submitted to the Service for a new opinion or advisory letter every six years, during the applicable on-cycle submission period at the beginning of the plan’s six-year
cycle. Pre-approved defined contribution

plans have a different six-year cycle than
pre-approved defined benefit plans.
.04 Sponsors and practitioners of
pre-approved defined contribution plans
submitted their opinion and advisory letter
applications to the Service from February 17, 2005 to January 31, 2006. The
Service’s review took into account the
requirements of the Economic Growth
and Tax Relief Reconciliation Act of 2001
(EGTRRA) and other items identified in
Notice 2004–84, 2004–2 C.B. 1030 (2004
Cumulative List). Adopting employers
of these pre-approved plans generally had
until April 30, 2010, to adopt the plans and
to apply for a determination letter. 2Sponsors and practitioners of pre-approved
defined benefit plans submitted their applications to the Service from February 1,
2007 to January 31, 2008. The Service’s
review took into account the requirements
of EGTRRA and other items identified in
Notice 2007–3, 2007–1 C.B. 255 (2006
Cumulative List). Adopting employers
of these pre-approved plans have until
April 30, 2012 to adopt the plans and to
apply for a determination letter.
.05 The 2010 Cumulative List consists of statutory, regulatory, and guidance
changes to plan qualification requirements
that will be considered by the Service in
its review of the pre-approved defined
contribution plans submitted during the
applicable on-cycle submission period for
the second six-year cycle, as well as single
employer individually designed Cycle A
plans. All items from the 2004 Cumulative List have been deleted from the 2010
Cumulative List. Section 23 of this revenue procedure provides further details on
the scope of the 2010 Cumulative List.
SECTION 3. CHANGES TO REVENUE
PROCEDURE 2005–16
In addition to minor revisions and clarifying language, the following changes
have been made to Rev. Proc. 2005–16:
.01 The revenue procedure updates
the purpose and background sections to
summarize the second six-year remedial

Applications for determination letters for Cycle A individually designed plans are accepted from February 1, 2011 to January 31, 2012.

2

This deadline was extended by Notice 2010–48 for plans affected by certain federally declared disasters. In addition, certain plans such as Cycle E plans, Cycle D plans with a plan year
ending on or after February 1, 2010, and governmental plans filing in Cycle E had a deadline of January 31, 2011, as explained in the Service’s Summer 2010 Retirement News for Employers.

2011–44 I.R.B.

609

October 31, 2011

amendment cycle for pre-approved defined contribution and defined benefit
plans, and provides that as of February 1,
2011, the Service began accepting applications for pre-approved defined contribution plans. (sections 1 and 2)
.02 The revenue procedure makes the
following changes to the M&P pre-approved plan program:
(1) The definition of M&P mass submitter is clarified to provide that a mass
submitter may be counted as one of the
30 unaffiliated sponsors required for purposes of determining whether this sponsorship requirement is met without needing to submit a separate opinion letter application (Form 4461-B) on behalf of that
mass submitter. The mass submitter may
also be counted as a sponsor under the special rule for mass submitters that received
a favorable opinion letter (submitting applications on behalf of 10 sponsors) under
the Tax Reform Act of 1986, Public Law
99–514 (100 Stat. 2481) (TRA ’86). (section 4.08)
(2) The National Sponsor category is
deleted. (section 4)
(3) The effect of employer amendments
on pre-approved plan status is clarified.
(sections 5.01 and 5.02)
(4) The list of areas not covered by
opinion letters is expanded to include: hybrid plans; plans with section 401(h) accounts; and plans under section 414(x).
(section 6.03)
(5) The revenue procedure provides that
opinion letters will now be issued for multiple employer plans, by deleting this category from the list of areas not covered by
opinion letters. (section 6.03)
(6) The procedures for requesting opinion letters are revised to refer to the applicable Form 4461, Form 4461–A, Form
4461–B, and Form 8717 (and to specify
what to include until these forms are revised), and to require that the sponsor’s
certification regarding interim amendments be submitted as part of the application. (sections 7.02 & 12.01)
(7) The description of the six-year remedial amendment cycle and other amendment requirements are updated to conform
to the interim amendment requirements
(including deleting former section 8.03
regarding a special one-year rule to amend
following the issuance of a revenue ruling
or other guidance). (section 8)

October 31, 2011

(8) Provisions are added to clarify that
a pre-approved M&P plan becomes an individually designed plan if a request for an
opinion letter is withdrawn, unless the employer adopts another pre-approved plan.
(section 9.01)
(9) Provisions are added to clarify that
an M&P mass submitter amending its
plan should submit a restated plan during the applicable on-cycle submission
period for the next six-year cycle, rather
than submitting the amendments between
submission periods and to state that the
M&P mass submitter must provide copies
of the amendments to sponsors who have
adopted the plan. (section 12.04)
.03 The revenue procedure makes the
following changes to the VS pre-approved
plan program:
(1) Language is added to clarify that
each adoption agreement counts as one
specimen plan for purposes of the 30-employer requirement (or 10, if applicable).
(section 13.05)
(2) The revenue procedure is clarified to
provide that a VS mass submitter may be
counted as one of the 30 unaffiliated sponsors for purposes of determining whether
this sponsorship requirement is met without needing to submit a separate advisory
letter application (Form 4461-B) on behalf
of that mass submitter. (section 13.06)
(3) The provisions required for VS
plans with an adoption agreement format
are specified. (section 14.05)
(4) The revenue procedure removes the
rule under which a VS practitioner’s authority to amend on behalf of an adopting
employer is conditioned on the plan being
covered by a favorable determination letter (if the employer is required to obtain
a determination letter in order to have reliance), and clarifies other provisions with
respect to the practitioner’s authority to
amend on behalf of an adopting employer.
(sections 15.03 and 15.05)
(5) The revenue procedure is clarified
to provide that the responsibilities of a VS
practitioner apply to VS practitioners generally, not just those practitioners authorized to adopt plan amendments on behalf
of employers. (section 15.04)
(6) The list of areas not covered by advisory letters is expanded to include: hybrid
plans; plans with section 401(h) accounts;
and plans under section 414(x). (section
16)

610

(7) The procedures for requesting advisory letters for VS plans are revised to
refer to the applicable Form 4461, Form
4461–A, Form 4461–B, and Form 8717
(and to specify what to include until these
forms are revised) and to require that the
practitioner’s and mass submitter’s certification regarding interim amendments be
submitted as part of the application (sections 17 and 18)
(8) The procedures for requesting advisory letters for VS plans are revised
to clarify when separate specimen plans
and applications are required for different
categories of plans and to specify that a
governmental plan (i.e., a plan described
in § 414(d)) is one of the categories of
plans that requires a separate specimen
plan. (section 17)
.04 The revenue procedure makes the
following changes applicable to all preapproved plans:
(1) The revenue procedure is modified
to: (a) clarify the types of employer modifications and amendments to a plan that
will not cause the plan to fail to be identical to an approved M&P or VS plan;
(b) provide that an employer or sponsor
may adopt interim or discretionary amendments for which the remedial amendment
cycle ends later than the remedial amendment cycle to which the opinion or advisory letter applies; (c) provide that an employer may adopt model or sample amendments that the Service has indicated will
not cause the plan to be treated as an individually designed plan; and (d) delete provisions under Rev. Proc. 2005–16 that
provided that the employer could modify
or amend the plan to correct typographical errors and/or cross references. (section
19.03)
(2) The address to which applications
for opinion and advisory letters should be
submitted is updated. (section 20)
(3) The revenue procedure is modified
to clarify the circumstances under which
an opinion or advisory letter is nontransferable to another entity. (section 20.09)
(4) The revenue procedure is modified
to clarify that plans must be amended
to comply with statutory and regulatory
changes pursuant to Rev. Proc. 2007–44
and to clarify that the amendments do not
change the applicable on-cycle submission period for the six-year cycle during
which sponsors or practitioners must request opinion or advisory letters. The

2011–44 I.R.B.

revenue procedure further provides that
interim amendments adopted by a pre-approved sponsor or practitioner on behalf
of adopting employers must be provided
to the adopting employers, and the date
of the adoption must be provided with the
amendments. It also states that the Service may in its discretion request copies
of interim amendments that the sponsor or
practitioner has adopted on behalf of all
adopting employers. (section 21.01)
(5) Rules for submitting word-for-word
identical plans and off-cycle filings have
been clarified and updated. (section 21.03)
(6) Reasons for which an advisory or
opinion letter may be revoked are clarified.
(section 22)
(7) The revenue procedure describes
the applicable on-cycle submission period
for the second six-year cycle and extends
the deadline to submit applications for
opinion and advisory letters for sponsors and practitioners maintaining defined
contribution mass submitter plans from
October 31, 2011 to January 31, 2012.
It also updates the description of the remedial amendment period, and provides
guidance for the next cycle. (sections 23
and 24)

PART I — M&P PLANS
SECTION 4. DEFINITIONS
.01 Master Plan — A “master plan” is
a plan (including a plan covering self-employed individuals) that is made available
by a sponsor for adoption by employers
and for which a single funding medium
(for example, a trust or custodial account)
is established, as part of the plan, for the
joint use of all adopting employers. A
master plan consists of a basic plan document, an adoption agreement, and, unless
included in the basic plan document, a trust
or custodial account document.
.02 Prototype Plan — A “prototype
plan” is a plan (including a plan covering
self-employed individuals) that is made
available by a sponsor for adoption by
employers and under which a separate
funding medium is established for each
adopting employer. A prototype plan consists of a basic plan document, an adoption
agreement, and, unless the basic plan document incorporates a trust or custodial
account agreement the provisions of which

2011–44 I.R.B.

are applicable to all adopting employers, a
trust or custodial account document.
.03 Basic Plan Document — A “basic
plan document” is the portion of a plan
containing all of the non-elective provisions applicable to all adopting employers.
No options (including blanks to be completed) may be provided in the basic plan
document, except as provided in section
12.03(1) of this revenue procedure regarding flexible plans.
.04 Adoption Agreement — An “adoption agreement” is the portion of the plan
containing the options that may be selected
by an adopting employer.
.05 Trust or Custodial Account Document (Note: This definition does not apply
if the basic plan document includes a trust
or custodial account agreement the provisions of which apply to all adopting employers.) —
(1) A “trust or custodial account document” is the portion of an M&P plan
that contains the trust agreement or custodial account agreement and includes provisions covering such matters as the powers
and duties of trustees, investment authority, and the kinds of investments that may
be made.
(2) Except as provided in section 5.09
and this section 4.05, all provisions of the
trust or custodial account document must
be applicable to all adopting employers of
that trust, and no options (including blanks
to be completed) may be provided in the
trust or custodial account document.
(3) With respect to prototype plans, a
sponsor or mass submitter may provide up
to 10 separate trust or custodial account
documents that are intended for use with
any single basic plan document. Notwithstanding the preceding sentence, a sponsor
or mass submitter may submit more than
10 separate trust or custodial account documents intended for use with any single
basic plan document, provided that an additional user fee is submitted for each trust
or custodial account document in excess of
10.
(4) As provided in section 5.09, a sponsor or M&P mass submitter may provide a
trust or custodial account document, designated for use only by adopters of nonstandardized plans, that provides for blanks to
be completed with respect to administrative provisions of the trust or custodial account agreement.

611

(5) Any trust or custodial account document (including one to be used by adopters
of standardized plans) may provide for
blanks to be completed that merely enable the adopting employer to specify the
names of the plan, employer, trustee or
custodian, plan administrator and other
fiduciaries, the trust year, and the name of
any pooled trust in which the plan’s trust
will participate.
.06 Opinion Letter — An “opinion letter” is a written statement issued by the
Service to a sponsor or M&P mass submitter as to the acceptability of the form of an
M&P plan under § 401(a) or 403(a), and,
in the case of a master plan, the acceptability of the master trust under § 501(a).
.07 Sponsor — A “sponsor” is any person that (1) has an established place of
business in the United States where it is
accessible during every business day and
(2) represents to the Service that it has at
least 30 employer-clients each of which
is reasonably expected to adopt the sponsor’s basic plan document. The deadline
for timely adoption will be announced by
the Service in future guidance.
A sponsor may request opinion letters
for any number of basic plan documents
and adoption agreements provided the
30-employer requirement is met with respect to at least one basic plan document.
The Service reserves the right at any time
to request from the sponsor a list of the employers that have adopted or are expected
to adopt the sponsor’s M&P plans, including the employers’ business addresses and
employer identification numbers.
Notwithstanding the preceding two
paragraphs, any person that has an established place of business in the United
States where it is accessible during every business day may sponsor a plan as a
word-for-word identical adopter or minor
modifier adopter of a plan of an M&P
mass submitter, regardless of the number
of employers that are expected to adopt
the plan.
By submitting an application for an
opinion letter for an M&P plan under this
revenue procedure (or by having an application filed on its behalf by an M&P mass
submitter), a person represents to the Service that it is a sponsor, as defined in this
section 4.07, and agrees to comply with
any requirements imposed on sponsors by
this revenue procedure. Failure to comply
with these requirements may result in the

October 31, 2011

loss of eligibility to sponsor M&P plans
and the revocation of opinion letters that
have been issued to the sponsor.
.08 M&P Mass Submitter — An “M&P
mass submitter” is any person that (1) has
an established place of business in the
United States where it is accessible during
every business day and (2) submits opinion letter applications on behalf of at least
30 unaffiliated sponsors each of which is
sponsoring, on a word-for-word identical basis, the same basic plan document.
A flexible plan (as defined in section
12.03(1)) that is adopted by a sponsor will
be considered a word-for-word identical
plan. For purposes of determining whether
30 unaffiliated sponsors sponsor, on a
word for word basis, the same basic plan
document, the mass submitter is treated
as an unaffiliated sponsor. For purposes
of this definition, affiliation is determined
under § 414(b) and (c). Additionally, the
following will be considered to be affiliated: any law firm, accounting firm,
consulting firm, etc., with its partners,
members, associates, etc. An M&P mass
submitter will be treated as an M&P mass
submitter with respect to all of its M&P
plans provided the 30 unaffiliated sponsor
requirement is met with respect to at least
one basic plan document.
Notwithstanding the preceding paragraph, any person that received a favorable
TRA ’86 opinion letter for a plan as an
M&P mass submitter under Rev. Proc.
89–9, 1989–1 C.B. 780, will continue to
be treated as an M&P mass submitter with
respect to all of its M&P plans if it submits applications on behalf of at least 10
sponsors (regardless of affiliation), each
of which is sponsoring the same basic
plan document on a word-for-word identical basis. For purposes of determining
whether 10 sponsors sponsor the same
basic plan document on a word-for-word
identical basis, the mass submitter is
counted as one of the 10 sponsors.
.09 Standardized Plan — A “standardized plan” is an M&P plan that meets the
following requirements:
(1) The provisions governing eligibility
and participation are such that the plan by
its terms benefits all employees described
in section 5.13 (regardless of whether
any employer is treated as operating separate lines of business under § 414(r))
except those that may be excluded under
§ 410(a)(1) or (b)(3). The adoption agree-

October 31, 2011

ment may provide options as to whether
some or all of the employees described in
§ 410(a)(1) or (b)(3) are to be excluded,
provided that the criteria for excluding
employees described in § 410(a)(1) or
(b)(3) apply uniformly to all employees. A
standardized plan generally may not deny
an accrual or allocation to an employee
eligible to participate merely because the
employee is not an active employee on
the last day of the plan year or has failed
to complete a specified number of hours
of service during the year. However, the
plan may deny an allocation or accrual to
an employee who is eligible to participate
if the employee terminates service during
the plan year with not more than 500 hours
of service and is not an active employee
on the last day of the plan year.
(2) The eligibility requirements under
the plan are not more favorable for highly
compensated employees (as defined in
§ 414(q)) than for other employees.
(3) Under the plan, allocations, in the
case of a defined contribution plan (other
than any cash or deferred arrangement
part of the plan), or benefits, in the case
of a defined benefit plan, are determined
on the basis of total compensation. For
this purpose, total compensation means a
definition of compensation that includes
all compensation within the meaning of
§ 415(c)(3) and excludes all other compensation, or that otherwise satisfies § 414(s)
under § 1.414(s)–1(c) of the Income Tax
Regulations.
(4) Unless the plan is a target benefit plan or a § 401(k) and/or § 401(m)
plan, the plan must, by its terms, satisfy
one of the design-based safe harbors described in § 1.401(a)(4)–2(b)(2) (taking
into account § 1.401(a)(4)–2(b)(4)) or in
§ 1.401(a)(4)–3(b)(3), (4), or (5) (taking
into account § 1.401(a)(4)–3(b)(6)).
(5) All benefits, rights, and features under the plan (other than those, if any, that
have been prospectively eliminated) are
currently available to all employees benefiting under the plan.
(6) Any past service credit under
the plan must meet the safe harbor in
§ 1.401(a)(4)–5(a)(3).
(7) Any hardship distribution must satisfy the safe harbor standards in the regulations under § 401(k).
A plan will not fail to satisfy the coverage requirement for standardized plans
merely because the plan provides, either

612

as the result of an elective provision or
by default in the absence of an election to
the contrary, that individuals who become
employees, within the meaning of section
5.13, as the result of a Ҥ 410(b)(6)(C)
transaction” will be excluded from eligibility to participate in the plan during the
period beginning on the date of the transaction and ending on a date that is not later
than the last day of the first plan year beginning after the date of the transaction. A
“§ 410(b)(6)(C) transaction” is an asset or
stock acquisition, merger, or other similar
transaction involving a change in the employer of the employees of a trade or business.
.10 Nonstandardized Plan — A “nonstandardized plan” is an M&P plan that is
not a standardized plan.
SECTION 5. PROVISIONS REQUIRED
IN M&P PLANS
.01 Sponsor Amendments — M&P
plans must provide a procedure for sponsor amendment, so that changes in the
Code, regulations, revenue rulings, other
statements published by the Service, or
corrections of prior approved plans may be
applied to all employers who have adopted
the plan. Sponsors must make reasonable
and diligent efforts to ensure that adopting employers of the sponsor’s M&P plan
have actually received and are aware of all
plan amendments and that such employers
complete and sign new adoption agreements when necessary. See section 5.11.
The provision for sponsor amendment
must provide that, for purposes of reliance
on the opinion letter, the sponsor will no
longer have the authority to amend the
plan on behalf of the adopting employer as
of the date of the adoption of an employer
amendment to the plan to incorporate a
type of plan not allowable in the M&P program described in section 6.03 (e.g., the
addition of an ESOP) or as of the date the
Service notifies the sponsor that the plan is
being treated as an individually designed
plan pursuant to section 24.03. Failure to
comply with this requirement may result
in the loss of eligibility to sponsor M&P
plans and the revocation of opinion letters
that have been issued to the sponsor.
.02 Employer Amendments — An employer that amends any provision of an approved M&P plan including its adoption
agreement (other than to change the choice

2011–44 I.R.B.

of options selected, if the plan permits or
contemplates such a change) or an employer that chooses to discontinue participation in a plan as amended by its sponsor without substituting another approved
M&P plan is considered to have adopted
an individually designed plan. However,
this rule does not apply in the case of
amendments permitted under sections 5.06
and 5.09 and sample or model amendments
published by the Service that specifically
provide that their adoption by an adopter
of an M&P plan will not cause such plan
to be treated as individually designed. Additionally, a plan will not be treated as individually designed if a closing agreement
under the Audit Closing Agreement Program or a compliance statement under the
Voluntary Correction Program has been issued with respect to the employer’s plan
with regard to the amendment.3 Also see
section 19.03 regarding the effect of employer amendments on an employer’s ability to rely on an opinion letter, and section 24 with respect to applicable remedial amendment periods. An employer that
amends an M&P plan because of a waiver
of the minimum funding requirement under § 412(d) will also be considered to
have an individually designed plan. The
procedures stated in Rev. Proc. 2011–6
relating to the issuance of determination
letters for individually designed plans will
then apply to the plan as adopted by the
employer.
.03 Compensation Requirements in
Nonstandardized Plans — Each nonstandardized M&P plan must give the adopting
employer the option to select total compensation as the compensation to be used
in determining allocations or benefits. For
this purpose, total compensation means
a definition that includes all compensation within the meaning of § 415(c)(3)
and excludes all other compensation or
that otherwise satisfies § 414(s) under
§ 1.414(s)–1(c).
.04 Automatic or Optional Safe Harbor Provisions in Nonstandardized Plans
— Each nonstandardized M&P plan
must automatically or by option allow
the adopting employer to satisfy one
of the design-based safe harbors described in § 1.401(a)(4)–2(b)(2) or in
§1.401(a)(4)–3(b)(3), (4), and (5). A non-

standardized defined contribution plan or
defined benefit plan is permitted to include
allocation or benefit formulas that must be
general tested under § 1.401(a)(4)–2(c) or
3(c) or cross-tested under § 1.401(a)(4)–8.
.05 Anti-Cutback Provisions — M&P
plans must specifically provide for the protection provided under § 411(a)(10) and
(d)(6), to the extent required, in the event
that the employer amends the plan in any
manner, such as by revising the options
selected in the adoption agreement or by
adopting a new M&P plan. An M&P sponsor may not amend its plan in a manner that
could result in the elimination of a benefit
to the extent the benefit is required to be
protected under § 411(d)(6) with respect to
the plan of any adopting employer, unless
permitted to do so under §§ 1.401(a)–4 and
1.411(d)–4. In addition, an M&P plan that
does not contain vesting rules for all years
that are at least as favorable to participants
as those provided in § 416(b), must specifically provide that any vesting that occurs
while the plan is top-heavy will not be cut
back if the plan ceases to be top-heavy.
.06 Adopting Employer Modification to
Satisfy §§ 415 and 416 — M&P plans
must provide that plan provisions may be
amended by plan language completed by
the employer in the adoption agreement
where such overriding language is necessary to satisfy § 415 or 416 because of
the required aggregation of multiple plans
under these sections. Generally, a space
should be provided in the adoption agreement with instructions for the employer to
add such language as necessary to satisfy
§§ 415 and 416. In addition, a space must
be provided in the adoption agreement for
the employer to specify the interest rate
and mortality tables used for purposes of
establishing the present value of accrued
benefits in order to compute the top-heavy
ratio under § 416. Such a space must be included in both defined contribution plans
and defined benefit plans.
.07 Defined Contribution § 415 Aggregation — Plan language must be incorporated that aggregates all defined contribution M&P plans to satisfy § 415(c) and (f).
.08 Top-heavy Requirements — Each
plan must either provide that all of the
additional requirements applicable to topheavy plans (described in § 416) apply

at all times or provide that such requirements apply automatically if the plan is
top-heavy regardless of how the adoption
agreement is completed. In any case where
the latter option is chosen, all of the requirements for determining whether the
plan is top-heavy must be included in the
plan. (See Questions T–35 and T–36 of
§ 1.416–1.)
.09 Adopting Employer Modification
of Trust or Custodial Account Document
— An employer that adopts a nonstandardized M&P plan will not be considered to have an individually designed plan
merely because the employer amends administrative provisions of the trust or custodial account document (such as provisions relating to investments and the duties
of trustees), provided the amended provisions are not in conflict with any other provision of the plan and do not cause the plan
to fail to qualify under § 401(a). For this
purpose, an amendment includes modification of the language of the trust or custodial account document and the addition
of overriding language.
An employer that adopts a standardized
M&P plan may amend the trust or custodial account document, provided such
amendment merely involves the specification of the names of the plan, employer,
trustee or custodian, plan administrator
and other fiduciaries, the trust year, or
the name of any pooled trust in which the
plan’s trust will participate.
.10 Provisions Required in Adoption
Agreements Regarding Reliance — The
adoption agreement of every nonstandardized M&P plan must include, in close
proximity to the signature blank, a statement that describes the limitations on
employer reliance on an opinion letter
without a determination letter and the circumstances under which an employer will
have no reliance without a determination
letter. See sections 19.02 and 19.03. Standardized plans must also include a similar
statement in the adoption agreement that,
under the circumstances described in section 19.01, the adopting employer may not
rely on the opinion letter issued by the Service, but must apply for a determination
letter to have reliance.
.11 Other Provisions Required in Adoption Agreements — Each M&P plan must

3

See Rev.Proc. 2008–50, 2008–2 C.B. 464, and Memorandum for Directors, EP Examinations and EP Rulings & Agreements, dated March 11, 2009, as posted http:/www.irs.gov/pub/irstege/corrective_amendments.pdf.

2011–44 I.R.B.

613

October 31, 2011

contain a dated employer signature line.
The employer must sign the adoption
agreement when it first adopts the plan and
must complete and sign a new adoption
agreement if the plan has been restated.
In addition, the employer must complete
a new signature page if it modifies any
prior elections or makes new elections
in its adoption agreement. The signature
requirement may be satisfied by an electronic signature that reliably authenticates
and verifies the adoption of the adoption
agreement, or restatement, amendment
or modification thereof, by the employer.
The adoption agreement must state that
it is to be used with one and only one
specific basic plan document. In addition,
the adoption agreement must contain a
cautionary statement to the effect that the
failure to properly fill out the adoption
agreement may result in failure of the plan
to qualify under § 401(a) or 403(a). The
adoption agreement must also contain a
statement that provides that the sponsor
will inform the adopting employer of any
amendments made to the plan or of the
discontinuance or abandonment of the
plan.
.12 Sponsor Telephone Numbers —
M&P plan adoption agreements must include the sponsor’s name, address, and
telephone number (or a space for the
address and telephone number of the
sponsor’s authorized representative) for
inquiries by adopting employers regarding
the adoption of the plan, the meaning of
plan provisions, or the effect of the opinion letter.
.13 Definition of Employee / § 414(b),
(c), (m), (n), and (o) — Each M&P plan
must include a definition of employee as
any employee of the employer maintaining the plan or any other employer aggregated under § 414(b), (c), (m), or (o) and
the regulations thereunder. The definition
of employee shall also include any individual deemed under § 414(n) (or under regulations under § 414(o)) to be an employee
of any employer described in the previous
sentence.
.14 Definition of Service / § 414(b), (c),
(m), (n), and (o) — Each M&P plan must
specifically credit all service with any employer aggregated under § 414(b), (c), (m)
or (o) and the regulations thereunder as
service with the employer maintaining the

October 31, 2011

plan. In addition, in the case of an individual deemed under § 414(n) (or under regulations under § 414(o)) to be the employee
of any employer described in the previous
sentence, service with such employer must
be credited to such individual.
SECTION 6. OPINION LETTERS —
SCOPE
.01 General Limits on Opinion Letters
— Opinion letters will be issued only to
sponsors or M&P mass submitters. Opinion letters constitute determinations as to
the qualification of the plans as adopted
by particular employers only under the circumstances, and to the extent, described in
section 19. In the case of prototype plans,
opinion letters do not constitute rulings or
determinations as to the exempt status of
related trusts or custodial accounts.
.02 Nonapplicability of this Revenue
Procedure to IRAs (including traditional
IRAs, Roth IRAs, SEPS, and Simple
IRAs) and section 403(b) Plans — Opinion letters will not be issued under this
revenue procedure for prototype plans
intended to meet the requirements for individual retirement arrangements under
§ 408 or for § 403(b) plans (see Rev.
Proc. 87–50, 1987–2 C.B. 647; Rev.
Proc. 97–29, 1997–1 C.B. 698; Rev. Proc.
98–59, 1998–2 C.B. 727; and Rev. Proc.
2010–48, 2010–50 I.R.B. 828).
.03 Areas Not Covered by Opinion Letters — Opinion letters will not be issued
for:
(1) Multiemployer plans;
(2) Union plans (this does not preclude
an M&P plan from covering employees of
the employer who are included in a unit
covered by a collective bargaining agreement or the adoption of an M&P plan pursuant to such agreement as a single-employer plan that covers only employees of
the employer);
(3) Stock bonus plans;
(4) Employee stock ownership plans;
(5) Pooled fund arrangements contemplated by Rev. Rul. 81–100, 1981–1 C.B.
326 (as modified by Rev. Rul. 2004–67,
2004–2 C.B 28, and Rev. Rul. 2011–1,
2011–2 I.R.B. 251);
(6) Applicable defined benefit plans
within the meaning of § 411(a)(13)(C)
(Hybrid Plans);

614

(7) Plans described in § 414(k) (relating to a defined benefit plan that provides
a benefit derived from employer contributions that is based partly on the balance of
the separate account of a participant);
(8) Target benefit plans, other than
plans that, by their terms, satisfy each of
the safe harbor requirements described in
§ 1.401(a)(4)–8(b)(3)(i), as well as the additional rules in § 1.401(a)(4)–8(b)(3)(ii)
through (vii);
(9) Defined benefit plans that provide
for employee contributions;
(10) Plans that would not satisfy the
qualification requirements except as governmental plans as described in § 414(d);
(11) Church plans described in § 414(e)
that have not made the election provided
by § 410(d);
(12) Plans under which the § 415 limitations are incorporated by reference;
(13) Plans that incorporate the ADP test
under § 401(k)(3) or the ACP test under
§ 401(m)(2) by reference;
(14) Section 401(k) plans (standardized and nonstandardized) that provide
for hardship distributions under circumstances other than those described in the
safe harbor standards in the regulations
under § 401(k);
(15) Fully-insured § 412(e)(3) plans,
other than plans that, by their terms, satisfy
the safe harbor in § 1.401(a)(4)–3(b)(5);
(16) Plans that fail to contain a provision reflecting the requirements of
§ 414(u) (see Rev. Proc. 96–49, 1996–2
C.B. 369);
(17) Plans that include so-called failsafe provisions for § 401(a)(4) or the average benefit test under § 410(b);
(18) Plans that include blanks or fill-in
provisions for the employer to complete,
unless the provisions have parameters that
preclude the employer from completing
the provisions in a manner that could violate the qualification requirements;
(19) Plans designed to satisfy the provisions of § 105;
(20) Plans that include § 401(h) accounts;
(21) Eligible combined plans within the
meaning of § 414(x)(2).
The Service may, in its discretion, decline to issue opinion letters for other types
of plans not described in this section 6.03.

2011–44 I.R.B.

SECTION 7. OPINION LETTER
APPLICATIONS — INSTRUCTIONS
TO SPONSORS
.01 Employee Plans Rulings and Agreements Issues Opinion Letters — Employee
Plans Rulings and Agreements will, upon
the request of a sponsor, issue an opinion
letter as to the acceptability of the form of
the sponsor’s M&P plan and any related
trust or custodial account documents under
§§ 401(a), 403(a), and 501(a).
.02 Procedure for Requesting Opinion Letters — A request for an opinion
letter relating to an M&P plan must be
submitted on the current version of Form
4461, Application for Approval of Master
or Prototype or Volume Submitter Defined Contribution Plans, Form 4461-A,
Application for Approval of Master or
Prototype or Volume Submitter Defined
Benefit Plans, or Form 4461-B, Application for Approval of Master or Prototype
or Volume Submitter Plans Mass Submitter Adopting Sponsor or Practitioner, as
appropriate. The Service intends to revise
Forms 4461, 4461-A and 4461-B. Until
the forms have been revised, a request for
an opinion letter should be accompanied
by the appropriate form with the following
items, if applicable, completed:
(1) Form 4461 — Complete Part 1,
items 1–9, and Attachment 1 which can
be accessed at http://www.irs.gov/pub/irstege/form4461_attachment.pdf.
(2) Form 4461-B — Complete in its
entirety.
(3) Form 4461-A (relates to DB plans)
— Complete Part 1, and an attachment that
the Service will provide at a future date.
These forms may be downloaded from
the Internet at the following address:
http://www.irs.gov. All information on the
first page of the application must be typed.
The request must be sent to the address in
section 20 of this revenue procedure. The
M&P request must be accompanied by
the required user fee submitted with Form
8717, User Fee for Employee Plan Determination, Opinion, and Advisory Letter
Request, and a signed certification that
all necessary amendments required by the
Service to retain the qualified status of the
M&P sponsor’s plan have been made and
communicated to all adopting employers.4

See
http://www.irs.gov/pub/irstege/cert_interim_amendments.pdf
for
certification.
.03 Expediting Review of Substantially
Identical Plans — The Service reserves the
right to review applications in any order
that will expedite the processing of opinion letter applications, subject to section
21.03. To expedite the review of substantially identical plans that are not mass submitter plans, the Service encourages plan
drafters and sponsors to include with each
opinion letter application, where it is appropriate, a cover letter setting forth the
following information:
(1) The name and file folder number
(if available) of the plan that, for review
purposes, the plan drafter designates as the
“lead plan” (including the name and EIN
of the sponsor);
(2) A list of all plans written by the
plan drafter that are substantially identical
to the lead plan (including the information
described in (1) above);
(3) A description of each place where
the plan for which the application is being
submitted is not word-for-word identical
to the language of the lead plan, including
an explanation of the purpose and effect of
each such difference; and
(4) A certification, made under penalty
of perjury by the plan drafter, that the information described in (3) above is true and
complete.
If the sponsor or plan drafter is aware
that a lead plan or any substantially identical plan has been assigned for review to a
specialist, the cover letter should also indicate the name of the specialist, if possible.
To the extent feasible, lead plans and substantially identical plans should be submitted together. The Service will regard the
information and certification described in
(3) and (4) above as a material representation for purposes of issuing an opinion letter.
.04 Separate Applications Required for
Different Categories of M&P Plans / Use
of Same Basic Plan Document by Multiple
Plans — An M&P plan shall not contain
any combination of profit-sharing, money
purchase (other than target benefit), target
benefit, integrated (i.e., provide for permitted disparity) defined benefit, or nonintegrated defined benefit plan features. How-

ever, separate defined contribution plans
may have the same basic plan document
and separate defined benefit plans may
have the same basic plan document, but
the provisions of the basic plan document
must be identical for all plans using that
document (that is, no elective or optional
features). For example, a sponsor may
submit four plans with respect to a given
defined benefit basic plan document: integrated standardized and nonstandardized
plans; and nonintegrated standardized and
nonstandardized plans. A sponsor may
also use one defined contribution basic
plan document for a money purchase plan,
a target benefit plan, and a profit-sharing
plan. One basic plan document may not be
used with respect to both defined benefit
and defined contribution plans. A separate
adoption agreement and completed application form must be submitted with respect
to each defined benefit plan and each defined contribution plan. In the case of a simultaneous submission of plans using the
same basic plan document, only one copy
of the basic plan document should be provided. If the requests are not simultaneous,
the sponsor must submit a copy of the basic
plan document with each submission and
include a cover letter identifying the original submission. The number of such basic
plan document must remain the same as in
the prior submission.
.05 Sample Language — A Listing of
Required Modifications (LRM) containing sample language to be used in drafting
M&P plans is available from Employee
Plans Rulings and Agreements. Such
language is not automatically required
in M&P plans but should be used as a
guide in drafting such plans. To expedite the review of their plans, sponsors
are encouraged to use LRM language and
to identify where such language is being
used in their plan documents. LRMs may
be downloaded from the Internet at the
following address: http://www.irs.gov/retirement/article/0,,id=97182,00.html.
.06 Material Furnished to Adopting
Employers — A sponsor must furnish
each adopting employer with a copy of the
approved plan, copies of any subsequent
amendments, and the most recently issued
opinion letter from the Service.

4 Form 8717, User Fee for Employee Plan Determination, Opinion and Advisory Letter Request, has not been updated to reflect new user fees. Until the form is updated, the current Form
8717 (rev. May 2009) should continue to be used. However, submissions must include the correct user fees as noted in Rev. Proc. 2011–8, 2011–1 I.R.B. 237, User fees for employee plans
and exempt organizations, as modified by Announcement 2011–8, 2011–5 I.R.B. 446.

2011–44 I.R.B.

615

October 31, 2011

.07 Timing of Issuance of Opinion Letters — The Service intends to issue opinion letters to M&P mass submitters and
sponsors (as well as advisory letters to VS
mass submitters and practitioners) at approximately the same time within the applicable six-year cycle. In the interim, the
Service will send an email to the applicable
M&P or VS mass submitter, sponsor, or
practitioner, if the Service determines that
the plan appears to be in full compliance
with the applicable qualification requirements, based on the submissions and the
completed review. Notwithstanding the
preceding sentence, this email only provides assurance that the Service believes
the plan appears to meet the applicable
qualification requirements under review as
of the date of the email. This email correspondence is for the convenience of the applicable sponsor, practitioner, or mass submitter, but does not constitute an official
opinion or advisory letter. Until issuance
of the official opinion or advisory letter, no
reliance exists. In addition, the Service reserves the right to require changes after the
email is sent, in its sole discretion.
SECTION 8. APPROVED PLANS
— MAINTENANCE OF APPROVED
STATUS
.01 Cumulative List in Six-Year Cycle
— Rev. Proc. 2007–44 provides that sponsors of pre-approved M&P plans must submit requests for opinion letters during the
applicable on-cycle submission period for
a six-year cycle in order to continue to rely
on their opinion letters. Sponsors may apply for opinion letters at other times, but
these filings will be “off-cycle” filings as
described in section 21.03 of this revenue
procedure. The Service will review the
plans that have been submitted during the
applicable on-cycle submission period for
a six-year cycle taking into account the
applicable Cumulative List that identifies
changes in the qualification requirements
of the Code as well as items of published
guidance relating to the plan qualification
requirements, such as regulations and revenue rulings. However, in order to be qualified, a plan must comply in operation with
all relevant qualification requirements, not
just those on the applicable Cumulative
List.
.02 Subsequent Required Interim
Amendments — Except as otherwise pro-

October 31, 2011

vided in future guidance, in the event
of changes in qualification requirements
resulting from future guidance, or other
regulatory or statutory changes that were
not taken into account in issuing the opinion letter, an approved M&P plan must be
amended by the sponsor and, if necessary,
the employer, to retain its approved status
if any provisions therein fail to meet the
requirements of law, regulations, or other
issuances and guidelines affecting qualification. See section 5.01 of Rev. Proc.
2007–44 regarding the time by which such
amendments must be adopted. Failure
to so amend could result in the loss of
a plan’s qualified status. However, this
does not change the applicable on-cycle
submission period for the six-year cycle
when sponsors must request opinion letters, which will still occur only once every
six years. Sponsors are required to make
reasonable and diligent efforts to ensure
that each employer that, to the best of the
sponsor’s knowledge, continues to maintain the plan as an M&P plan amends its
plan when necessary.
The plan must operationally comply
with any changes in qualification requirements and the terms of the plan as
ultimately amended to reflect the changes.
.03 Loss of Qualified Status — If a
sponsor reasonably concludes that an employer’s M&P plan may no longer be a
qualified plan and the sponsor does not or
cannot submit a request to correct the qualification failure under the Employee Plans
Compliance Resolution System (EPCRS),
it is incumbent on the sponsor to notify the
employer that the plan may no longer be
qualified, advise the employer that adverse
tax consequences may result from loss of
the plan’s qualified status, and inform the
employer about the availability of EPCRS.
See Rev. Proc. 2008–50.
SECTION 9. WITHDRAWAL OF
REQUESTS
.01 Notification and Effect — A sponsor may withdraw its request for an opinion letter at any time prior to the issuance
of such letter by notifying EP Rulings and
Agreements in writing of such withdrawal,
at the address provided in section 20.01.
The sponsor must also notify each employer who adopted the plan that the request has been withdrawn. The plan of
such an employer will become an individ-

616

ually designed plan unless the employer
adopts another pre-approved plan. See
Rev. Proc. 2007–44.
.02 Service Retains Information —
Even though a request is withdrawn, EP
Rulings and Agreements will retain all
correspondence and documents associated
with that request and will not return them
to the sponsor. EP Rulings and Agreements may furnish its views concerning
the qualified status of the plan to EP Examinations, which has audit jurisdiction
over the returns of any employers that
have adopted the plan.
SECTION 10. ABANDONED PLANS
.01 Notification to the Service —
A sponsor must notify EP Rulings and
Agreements in writing if an approved
M&P plan is no longer used by any employer and the sponsor no longer intends
to offer the plan for adoption. Such written
notification must be sent to the address in
section 20 and must refer to the file folder
number appearing on the latest opinion
letter issued.
.02 Notification to Employers — A
sponsor that intends to abandon an approved M&P plan that is in use by any
adopting employer must inform each
adopting employer that the form of the
plan has been terminated, and that the
employer’s plan will become an individually designed plan (unless the employer
adopts another pre-approved plan). After so informing all adopting employers,
the sponsor should notify EP Rulings and
Agreements in accordance with subsection
10.01 above.
SECTION 11. RECORD KEEPING
REQUIREMENTS
.01 Filing of Opinion Letter Application Constitutes Agreement to Comply
with Record Keeping Requirements — By
submitting an application for an opinion
letter under this revenue procedure (or by
having an application filed on its behalf
by an M&P mass submitter), an M&P
plan sponsor agrees, as provided in section 4.07, to comply with the requirements
imposed on the sponsor by this revenue
procedure, including the record keeping
requirements of this section. Failure to
comply with the requirements imposed on
the sponsor by this revenue procedure may

2011–44 I.R.B.

result in the loss of eligibility to sponsor
M&P plans and the revocation of opinion
letters that have been issued to the sponsor.
.02 Maintenance and Availability of
Records of Adopting Employers — An
M&P plan sponsor must maintain, or
have maintained on its behalf, for each
of its plans, a record of the names, business addresses, and taxpayer identification numbers of all employers that have
adopted the plan. However, a sponsor
need not maintain records with respect to
employers that, to the best of the sponsor’s
knowledge, ceased to maintain the plan
as an M&P plan more than three years
earlier. Upon written request, a sponsor
must provide to the Service a list of such
adopting employers that indicates, to the
best of the sponsor’s knowledge, which of
such employers continue to maintain the
plan as an M&P plan and which of such
employers have ceased to maintain the
plan as an M&P plan within the preceding
three years.
SECTION 12. M&P MASS
SUBMITTERS
.01 Opinion Letters Issued to M&P
Mass Submitters —
(1) EP Rulings and Agreements will,
upon request by an M&P mass submitter,
issue an opinion letter as to the acceptability of the form of the mass submitter’s
M&P plan and any related trust or custodial account documents under §§ 401(a),
403(a), and 501(a). With respect to its
plan, the M&P mass submitter must submit a completed Form 4461 or 4461-A, as
applicable, to the address in section 20.
The first page of the Form 4461 or 4461-A
must be typed. The application must
include a copy of the plan (adoption agreement and basic plan document) and any
separate trust or custodial account documents. In the case of an initial submission
of a basic plan document under this revenue procedure, the M&P mass submitter’s application must also be accompanied
by applications for opinion letters filed on
behalf of the requisite number of identical adopters (as determined under section
4.08), unless the M&P mass submitter
has already satisfied this requirement in
connection with a previous application

under this revenue procedure involving
another basic plan document. Any plan
submitted by an M&P mass submitter must
include language designating the M&P
mass submitter as agent for the sponsor
for purposes of making plan amendments
(see section 12.02). The M&P request
must be accompanied by the required
user fee submitted with Form 8717, User
Fee for Employee Plan Determination,
Opinion and Advisory Letter Request, and
a signed certification that all necessary
amendments required by the Service to retain the qualified status of the M&P mass
submitter’s plan have been made and communicated to all adopting sponsors.5 See
http://www.irs.gov/pub/irs-tege/cert_interim_amendments.pdf for certification.
(2) After satisfying the requirement as
to the number of adopting sponsors, the
M&P mass submitter may submit additional applications on behalf of other sponsors that wish to adopt a word-for-word
identical plan or a plan that contains minor
modifications from the mass submitter
plan, as provided in section 12.03(2). In
addition, the M&P mass submitter may
then submit requests for opinion letters
under this section 12.01 for its other plans,
regardless of the number of identical
adopters of such other plans.
(3) The Service intends to issue opinion
letters to M&P mass submitters and sponsors (as well as advisory letters to VS mass
submitters and practitioners) at approximately the same time within the applicable
six-year cycle. In the interim, the Service
will send an email to the applicable M&P
or VS mass submitter, sponsor, or practitioner, if the Service determines that the
plan appears to be in full compliance with
the applicable qualification requirements
based on the submissions and the completed review. Notwithstanding the preceding sentence, this email only provides
assurance that the Service believes the plan
appears to meet the applicable qualification requirements under review as of the
date of the email. This email correspondence is for the convenience of the applicable sponsor, practitioner, or mass submitter, but does not constitute an official
opinion or advisory letter. Until issuance
of the official opinion or advisory letter, no
reliance exists. The Service reserves the

right to require changes after the email is
sent, in its sole discretion.
.02 Reduced Procedural Requirements
for Sponsors That Use Mass Submitter
Plans — A sponsor of an M&P plan of
a mass submitter must obtain an opinion letter. For qualification, or where the
sponsor’s plan includes modifications,
the M&P mass submitter must submit on
behalf of the sponsor to EP Rulings and
Agreements a completed Form 4461-B
which contains a declaration by the M&P
mass submitter under penalty of perjury
that the sponsor has adopted an M&P plan
that is word-for-word identical to a plan of
the M&P mass submitter, or an M&P plan
that is a minor modification of the mass
submitter’s plan. The Form 4461-B must
be typed. If the sponsor is sponsoring a
word-for-word identical plan (including a
flexible plan), a copy of the plan need not
be submitted. If the M&P mass submitter
submits a plan with minor modifications,
it must comply with the requirements of
section 12.03(2). The application submitted on behalf of the sponsor must include
the required user fee. Upon receipt of the
request for an opinion letter, the Service
will, as soon as administratively feasible,
issue an opinion letter with respect to the
sponsor’s plan (provided that an opinion
letter has been issued with respect to the
M&P mass submitter’s plan).
.03 Definitions — (1) Flexible Plan —
(a) In general — A “flexible plan” is a
plan submitted by an M&P mass submitter that contains optional provisions (as
defined in (b) below). Sponsors that adopt
the flexible plan may include or delete
any optional provision that is designated
as such in the M&P mass submitter’s
plan, provided the inclusion or deletion
of specific optional provisions conforms
to the M&P mass submitter’s written
representation to the Service concerning
the choices available to sponsors and the
coordination of optional provisions. An
M&P mass submitter must bracket and
identify the optional provisions when
submitting such plan to EP Rulings and
Agreements and must also provide the
Service a written representation describing the choices available to sponsors and
the coordination of optional provisions.
Thus, such a representation must indicate

5 See footnote 4 for interim user fee information under Rev. Proc. 2011–8, User fees for employee plans and exempt organizations, as modified by Announcement 2011–8, until Form 8717,
User Fee for Employee Plan Determination, Opinion and Advisory Letter Request, is updated.

2011–44 I.R.B.

617

October 31, 2011

whether a sponsor’s plan may contain
only one of a certain group of optional
provisions, may contain only a specific
combination of provisions, or may exclude the provisions entirely. Similarly,
if the inclusion (or deletion) of a specific
optional provision in a sponsor’s plan will
automatically result in the inclusion (or
deletion) of any other optional provision,
this must be set forth in the M&P mass
submitter’s representation. A flexible plan
may contain only optional provisions that
meet the requirements of (b) below, and
must be drafted so that the qualification
of any sponsor’s plan will not be affected
by the inclusion or deletion of optional
provisions. For example, if a sponsor’s
defined contribution plan contains an optional provision that allows a portion of
a participant’s account to be invested in
life insurance, then under the terms of
the sponsor’s plan, the application of the
proceeds must meet the requirements of
§§ 401(a)(11) and 417. A flexible plan
adopted by a sponsor that differs from the
M&P mass submitter plan only because
the sponsor has deleted certain optional
provisions from its plan in conformance
with the M&P mass submitter’s representation described in this paragraph will be
treated as a word-for-word identical plan
to the M&P mass submitter plan. The
Service encourages M&P mass submitters
to limit the number of optional provisions
described in (b)(i) and (ii) below, that they
provide under a flexible plan to six investment provisions and six administrative
provisions.
(b) Optional Provisions — A flexible
plan may contain optional provisions that
comply with the requirements set forth in
this paragraph. The optional provisions
may be arranged as separate optional articles or as separate optional provisions
within a single article. A flexible plan
may also contain optional provisions in the
adoption agreement. For example, if an
M&P mass submitter flexible plan basic
plan document contains an optional provision that would allow for loans under a
sponsor’s M&P plan, the adoption agreement could also include an optional provision that would enable an adopting employer to elect whether loans will be available under the plan it adopts. If the sponsor does not wish to enable adopting employers to make loans available under their
plans, both the basic plan document op-

October 31, 2011

tional provision and the adoption agreement optional provision would be deleted
from the sponsor’s M&P plan. Sponsors
may include or delete optional provisions
of M&P mass submitter plans, but once the
sponsor has decided to include an optional
provision, it must offer that provision to all
adopting employers. Any optional provision that the Service determines does not
meet the requirements of this section will
have to be changed to a non-optional provision or deleted from the M&P mass submitter’s plan. The following is an exclusive list of the allowable optional provisions that a flexible plan may contain:
(i) Investment Provisions — An M&P
mass submitter may offer a variety of investment provisions in its plan for sponsors to include or delete from their version
of the plan. However, the plan as adopted
by the sponsor must provide some method
for investing trust assets. Investment provisions are those provisions that describe
the plan’s methods of investing the trust or
custodial funds, including provisions such
as the availability of loans and investments
in insurance contracts or other funding media, and self-directed investments. (Also
see sections 4.05 and 5.09 regarding flexibility permitted in trust or custodial account documents.)
(ii) Administrative Provisions — An
M&P mass submitter may offer a variety
of administrative provisions in its plan for
sponsors to include or delete from their
version of the plan. However, the plan as
adopted by the sponsor must describe how
the plan will be administered. Administrative provisions are those provisions that
describe the administration of the plan,
including the powers, duties, and responsibilities of a plan’s custodian, trustee,
administrator, employer, and other fiduciaries. Administrative provisions include
the allocation of responsibilities among
fiduciaries, the resignation or replacement
of fiduciaries, claims procedures under the
plan, and record-keeping requirements.
However, procedural provisions that are
required for plan qualification are not
administrative provisions under this section. For example, provisions that provide
for the notice to participants required by
§ 417 and record-keeping required by regulations under § 401(k) and (m) are not
administrative provisions for purposes of
this revenue procedure, and may not be
optional provisions.

618

(iii) Cash or Deferred Arrangement —
An M&P mass submitter may include a
self-contained cash or deferred arrangement (as defined in § 401(k)) for sponsors
to include or delete.
(c) Addition of Optional Provisions by
the M&P Mass Submitter — An M&P
mass submitter may add additional optional provisions to its plan after a favorable opinion letter is issued. Generally, the
addition of such optional provisions will
not be treated as a plan amendment for
purposes of this revenue procedure, Rev.
Proc. 2011–6, and Rev. Proc. 2011–8,
and sponsors and adopting employers will
not be required to obtain new opinion and
determination letters in order to preserve
reliance. (However, the addition of a cash
or deferred arrangement or any change to
the language of the adoption agreement
subsequent to the issuance of an opinion
letter will be treated as a plan amendment
to the M&P mass submitter’s plan and the
requirements of subsection .04 will then
apply.) The M&P mass submitter must
submit such additional optional provisions
to the Service, along with a completed
Form 4461 or 4461-A, as applicable, and
a check or money order in the amount
specified in section 6.04(6) of Rev. Proc.
2011–8. No opinion letter will be issued to
the M&P mass submitter or any adopting
sponsor with respect to the addition of
these optional provisions. Instead, a letter
will be issued to the M&P mass submitter
notifying it that the addition of such optional provisions will not affect the status
of favorable opinion and determination
letters issued to sponsors and adopting
employers.
(d) Notification to Employer — If an
M&P mass submitter adds optional provisions, as described in the preceding
paragraph, all adopting sponsors who wish
to include the additional optional provisions must furnish each adopting employer
with a copy of the plan that includes such
additional provisions. If a sponsor decides
to include or delete an optional provision after it initially adopted the plan, it
must also furnish each adopting employer
with a copy of the new plan. However,
if such inclusion or deletion results in a
change to the language of the adoption
agreement, such change will be treated as
a plan amendment and the sponsor and
its adopting employers may not continue

2011–44 I.R.B.

to rely on previously issued opinion or
determination letters.
(2) Minor Modifications —
(a) A “minor modification” is a minor change to an otherwise word-for-word
identical plan of the M&P mass submitter
that does not require an in-depth technical review. For example, a change from
five-year 100% vesting to three-year 100%
vesting is a minor modification. On the
other hand, a change in the method of accrual of benefits in a defined benefit plan
would not be considered a minor modification. A minor modification must be submitted by the M&P mass submitter on behalf of the sponsor that will adopt the modified plan. Subject to sections 12.05 and
21.03 and the provisions of this section,
submissions with respect to minor modifications will be reviewed on an expedited
basis and opinion letters will be issued to
the sponsor as soon as possible.
(b) The Service reserves the right to determine if such changes are actually minor. If it is determined that the changes
are extensive or require an in-depth technical review, the plan submitted under the
next paragraph will not be entitled to expedited review and will otherwise be treated
as a non-mass submitter plan. (In the event
the plan is treated as a non-mass submitter plan, the Service will notify the M&P
mass submitter in writing of its determination. Within 30 days following the date
of such communication, either the M&P
mass submitter may revise the plan so that
the modifications are minor and resubmit
the revised plan, or the sponsor may submit Form 4461 or 4461-A, whichever is
applicable, and an additional user fee in an
amount equal to the difference between a
non-mass submitter plan application user
fee and a minor modifier application user
fee. If, after such 30 day period neither action has been taken, the application may be
considered withdrawn.)
(c) The M&P mass submitter must initially submit the first page of the applicable
Form 4461-B, as a placeholder. Such form
must be typed. When the Service sends
an email to the applicable sponsor with respect to the lead plan indicating that the
Service has determined that the plan appears to be in full compliance with the applicable qualification requirements, as described in section 7.07 above, the M&P
mass submitter must submit a copy of the
M&P mass submitter’s plan with the mod-

2011–44 I.R.B.

ifications highlighted, as well as a statement indicating the location and effect of
each change. The M&P mass submitter must certify under penalty of perjury
that the plan of the sponsor, except for
the delineated changes, is word-for-word
identical to the plan for which the M&P
mass submitter received a favorable opinion letter. If an M&P mass submitter fails
to identify each modification, such failure will be considered a material misrepresentation, and an employer may not rely
on any opinion or determination letter that
may be issued with respect to the plan. If
an M&P mass submitter repeatedly fails
to identify such modifications, the Service
may deny permission to that M&P mass
submitter to submit additional modifications.
.04 Amendments of M&P Mass Submitter Plans — If an M&P mass submitter amends the plan, the mass submitter
must provide copies of the amendment to
sponsors who have adopted the plan. Any
sponsor that does not wish to make the
amendments made by an M&P mass submitter may switch to another M&P mass
submitter or may submit an application for
an opinion letter on its own behalf during
the next applicable on-cycle submission
period for pre-approved plans. An M&P
mass submitter should not submit an application for an opinion letter with respect
to plan amendments. The Service will
not issue an opinion letter with respect to
amendments made between the applicable
on-cycle submission periods and the M&P
mass submitter should submit a restated
plan, including the amendments, during
the next six-year cycle.
.05 Expeditious Processing Accorded
M&P Mass Submitter Plans — Subject
to section 21.03, all M&P mass submitter
plans, including the adoption of approved
M&P mass submitter plans by sponsors,
will be accorded more expeditious processing than M&P plans submitted by nonmass submitters, to the extent administratively feasible.

PART II — VOLUME
SUBMITTER PLANS
SECTION 13. DEFINITIONS
.01 Volume Submitter Plan — A “volume submitter plan” or “VS plan” refers to
either a specimen plan of a VS practitioner

619

or a plan of a client of the VS practitioner
that is substantially similar to the VS practitioner’s approved specimen plan.
.02 Specimen Plan — A “specimen
plan” is a sample plan of a VS practitioner
(rather than the actual plan of an employer). A specimen plan may be a single
document that does not use an adoption
agreement, or it may consist of a basic
plan document and an adoption agreement, within the meaning of section 4.03
and section 4.04, respectively.
.03 Advisory Letter — An “advisory
letter” is a written statement issued by the
Service to a VS practitioner or VS mass
submitter as to the acceptability of the
form of a specimen plan and any related
trust or custodial account documents under § 401(a) or 403(a).
.04 Trust or Custodial Account Document — A “trust or custodial account
document” is the portion of a VS plan
that contains the trust agreement or custodial account agreement and includes provisions covering such matters as the powers
and duties of trustees, investment authority, and the kinds of investments that may
be made.
.05 VS Practitioner — A “VS practitioner” is any person that (1) has an
established place of business in the United
States where it is accessible during every
business day and (2) represents to the Service that it has at least 30 employer-clients
each of which is reasonably expected to
adopt a plan that is substantially similar
to the VS practitioner’s specimen plan.
Notwithstanding the preceding sentence,
the required number of employer-clients
reasonably expected to adopt a substantially similar money purchase pension
specimen plan is reduced to 10 in the case
of a VS practitioner that has specimen
plans for two or more separate categories
described in section 17.03, one of which
is a money purchase pension plan. For
example, if a VS practitioner has a money
purchase pension specimen plan and no
other types of plans, or if a VS practitioner has plans described in two or more
categories, none of which is a money purchase pension plan, the employer-client
requirement remains at 30. The deadline
for timely adoption will be announced by
the Service in future guidance.
A VS practitioner may submit any number of specimen plans for advisory letters provided the 30-employer requirement

October 31, 2011

(or 10, if applicable) is separately satisfied with respect to each specimen plan.
For this purpose, where an adoption agreement format is used, each adoption agreement is treated as one specimen plan. The
Service reserves the right at any time to
request from the VS practitioner a list of
the employers that have adopted or are expected to adopt the VS practitioner’s specimen plans, including the employers’ business addresses and employer identification
numbers. Notwithstanding the preceding
two sentences, any person that has an established place of business in the United
States where it is accessible during every
business day may sponsor a specimen plan
as a word-for-word identical adopter of a
specimen plan of a VS mass submitter, regardless of the number of employers that
are expected to adopt the plan.
By submitting an application for an advisory letter for a specimen plan under this
revenue procedure (or by having an application filed on its behalf by a VS mass submitter), a person represents to the Service
that it is a VS practitioner, as defined in
this section 13.05. If the VS practitioner’s
specimen plan permits the VS practitioner
to amend the VS plan on behalf of adopting employers, as permitted by section 15,
the VS practitioner also agrees to comply
with any requirements imposed on sponsors of M&P plans by this procedure. Failure to comply with these requirements may
result in the loss of eligibility to sponsor
specimen plans and the revocation of advisory letters that have been issued to the
VS practitioner.
.06 VS Mass Submitter — A “VS mass
submitter” is any person that (1) has an established place of business in the United
States where it is accessible during every
business day and (2) submits advisory letter applications on behalf of at least 30
unaffiliated practitioners each of which is
sponsoring, on a word-for-word identical
basis, the same specimen plan. For purposes of determining whether 30 unaffiliated practitioners sponsor on a word-for
word basis the same specimen plan, the VS
mass submitter is treated as one of the 30
unaffiliated practitioners. For purposes of
this definition, affiliation is determined under § 414(b) and (c). Additionally, the following will be considered to be affiliated:
any law firm, accounting firm, consulting
firm, etc., with its partners, members, associates, etc. A VS mass submitter will be

October 31, 2011

treated as a VS mass submitter with respect
to each specimen plan for which the 30 unaffiliated practitioner requirement is separately met.
SECTION 14. PROVISIONS
REQUIRED IN EVERY VS PLAN
.01 Anti-Cutback Provisions — VS
plans must specifically provide for the
protection provided under § 411(a)(10)
and (d)(6), to the extent required, in the
event that the employer amends the plan
in any manner. If a VS plan authorizes
the VS practitioner to amend the plan on
behalf of employers, the VS practitioner
may not amend the plan in a manner that
could result in the elimination of a benefit
to the extent the benefit is required to be
protected under § 411(d)(6) with respect to
the plan of any adopting employer, unless
permitted to do so under §§ 1.401(a)–4
and 1.411(d)–4. In addition, a VS plan that
is not exempt from the top-heavy requirements and that does not contain vesting
rules for all years that are at least as favorable to participants as those provided
in § 416(b), must specifically provide that
any vesting that occurs while the plan is
top-heavy will not be cut back if the plan
ceases to be top-heavy.
.02 Definition of Employee / § 414(b),
(c), (m), (n), and (o) — Each VS plan
must include a definition of employee as
any employee of the employer maintaining the plan or any other employer aggregated under § 414(b), (c), (m), or (o) and
the regulations thereunder. The definition
of employee shall also include any individual deemed under § 414(n) (or under regulations under § 414(o)) to be an employee
of any employer described in the previous
sentence.
.03 Definition of Service / § 414(b), (c),
(m), (n), and (o) — Each VS plan must
specifically credit all service with any employer aggregated under § 414(b), (c), (m),
or (o) and the regulations thereunder as
service with the employer maintaining the
plan. In addition, in the case of an individual deemed under § 414(n) (or under regulations under § 414(o)) to be the employee
of any employer described in the previous
sentence, service with such employer must
be credited to such individual.
.04 Adopting Employer Modification
of Trust or Custodial Account Document
— An employer will not be considered to

620

have an individually designed plan merely
because the employer amends administrative provisions of the trust or custodial
account document (such as provisions
relating to investments and the duties of
trustees), provided the amended provisions are not in conflict with any other
provision of the plan and do not cause
the plan to fail to qualify under § 401(a).
For this purpose, an amendment includes
modification of the language of the trust
or custodial account document and the
addition of overriding language.
.05 Other Provisions Required in Adoption Agreements — Each VS plan must
contain a dated employer signature line.
The employer must sign the adoption
agreement when it first adopts the plan and
must complete and sign a new adoption
agreement if the plan has been restated.
In addition, the employer must complete
a new signature page if it modifies any
prior elections or makes new elections
in its adoption agreement. The signature
requirement may be satisfied by an electronic signature that reliably authenticates
and verifies the adoption of the adoption
agreement, or restatement, amendment
or modification thereof, by the employer.
The adoption agreement must state that
it is to be used with one and only one
specimen plan. In addition, the adoption agreement must contain a cautionary
statement to the effect that the failure to
properly fill out the adoption agreement
may result in failure of the plan to qualify
under § 401(a) or 403(a). If the VS practitioner has the authority to amend the plan
on behalf of employers who have adopted
the plan, as described under section 15.03
below, the adoption agreement must also
contain a statement that provides that the
practitioner will inform the adopting employer of any amendments made to the
plan or of the discontinuance or abandonment of the plan.
.06 Practitioner Telephone Numbers —
VS plan adoption agreements must include
the VS practitioner’s name, address, and
telephone number (or a space for the address and telephone number of the practitioner’s authorized representative) for inquiries by adopting employers regarding
the adoption of the plan, the meaning of
plan provisions, or the effect of the advisory letter.

2011–44 I.R.B.

SECTION 15. APPROVED PLANS
— MAINTENANCE OF APPROVED
STATUS
.01 Cumulative List in Six-Year Cycle
— Rev. Proc 2007–44 provides that practitioners of pre-approved VS plans must
submit requests for advisory letters during
the applicable on-cycle submission period
for a six-year cycle in order to continue to
rely on their advisory letters. Practitioners may apply for advisory letters at other
times, but these filings will be “off-cycle”
filings, as described in section 21.03 of this
revenue procedure. The Service will review the plans that have been submitted
during the applicable on-cycle submission
period for a six-year cycle taking into account the applicable Cumulative List that
identifies changes in the qualification requirements of the Code as well as items
of published guidance relating to the plan
qualification requirements, such as regulations and revenue rulings. However, in order to be qualified, a plan must comply in
operation with all relevant qualification requirements, not just those on the applicable
Cumulative List.
.02 Subsequent Required Interim
Amendments — Except as otherwise provided in future guidance, in the event
of changes in qualification requirements
resulting from future guidance, or other
regulatory or statutory changes that were
not taken into account in issuing the advisory letter, an approved VS plan must
be amended by the practitioner and, if
necessary, the employer, to retain its approved status if any provisions therein fail
to meet the requirements of law, regulations, or other issuances and guidelines
affecting qualification. See section 5.01 of
Rev. Proc. 2007–44 regarding the time by
which such amendments must be adopted.
Failure to so amend could result in the loss
of a plan’s qualified status. However, this
does not change the applicable on-cycle
submission period for the six-year cycle
when practitioners must request advisory
letters, which will still occur only once
every six years. Practitioners are required
to make reasonable and diligent efforts to
ensure that each employer that, to the best
of the practitioner’s knowledge, continues
to maintain the plan as a VS plan amends
its plan when necessary.
The plan must operationally comply
with any changes in qualification re-

2011–44 I.R.B.

quirements and the terms of the plan as
ultimately amended to reflect the changes.
.03 Option to Permit Practitioner
Amendment — A VS practitioner may
amend its specimen plan. Ordinarily the
amendments will apply only to the plans
of employers who adopt the plan after it
has been amended and will not apply to
plans of employers who adopted the plan
prior to the amendment. However, a VS
plan may, but is not required to, include
a provision that authorizes the VS practitioner to amend the plan on behalf of
employers who have previously adopted
the plan, so that changes in the Code, regulations, revenue rulings, other statements
published by the Service (including model
and sample amendments that specifically
provide that their adoption will not cause
such plan to be individually designed),
or corrections of prior approved plans
may be applied to all employers who have
adopted the plan. The provision for practitioner amendment must provide that, for
purposes of reliance on the advisory letter,
the practitioner will no longer have the
authority to amend the plan on behalf of
the adopting employer as of the date of the
adoption of an employer amendment to
the plan to incorporate a type of plan not
allowable in the VS program described
in section 16.03 (e.g., the addition of an
ESOP) or as of the date the Service notifies the practitioner that the plan is being
treated as an individually designed plan
pursuant to section 24.03.
.04 Responsibilities of Practitioner —
A VS practitioner must comply with the
requirements in this section 15 as well as
sections 7.06 and 9 through 11 that apply
to M&P sponsors. Thus, the VS practitioner must maintain, or have maintained
on its behalf, a record of the employers that
have adopted the plan, and the VS practitioner must make reasonable and diligent
efforts to ensure that adopting employers
have actually received and are aware of all
plan amendments and that such employers
adopt new documents when necessary.
.05 Loss of Qualified Status — If a
practitioner reasonably concludes that an
employer’s VS plan may no longer be a
qualified plan and the practitioner does not
or cannot submit a request to correct the
qualification failure under EPCRS, it is incumbent on the practitioner to notify the
employer that the plan may no longer be
qualified, advise the employer that adverse

621

tax consequences may result from loss of
the plan’s qualified status, and inform the
employer about the availability of EPCRS.
See Rev. Proc. 2008–50.
SECTION 16. ADVISORY LETTERS
— SCOPE
.01 General Limits on Advisory Letters — Advisory letters will be issued only
to VS practitioners or VS mass submitters. Advisory letters constitute determinations as to the qualification of the plans
as adopted by particular employers only
under the circumstances, and to the extent,
described in section 19. Advisory letters
do not constitute rulings or determinations
as to the exempt status of related trusts or
custodial accounts.
.02 Nonapplicability of this Revenue
Procedure to section 403(b) Plans — Advisory letters will not be issued under this
revenue procedure for plans intended to
meet the requirements under § 403(b) (see
Rev. Proc. 98–59).
.03 Areas Not Covered by Advisory
Letters — Advisory letters will not be issued for:
(1) Multiemployer plans;
(2) Union plans (this does not preclude
a VS plan from covering employees of
the employer who are included in a unit
covered by a collective bargaining agreement or the adoption of a VS plan pursuant to such agreement as a single-employer plan that covers only employees of
the employer);
(3) Stock bonus plans;
(4) Employee stock ownership plans;
(5) Pooled fund arrangements contemplated by Rev. Rul. 81–100 (as modified by Rev. Rul. 2004–67 and Rev. Rul.
2011–1);
(6) Applicable defined benefit plans
within the meaning of § 411(a)(13)(C)
(Hybrid Plans);
(7) Plans described in § 414(k) (relating to a defined benefit plan that provides
a benefit derived from employer contributions that is based partly on the balance of
the separate account of a participant);
(8) Target benefit plans, other than
plans which, by their terms, satisfy each of
the safe harbor requirements described in
§ 1.401(a)(4)–8(b)(3)(i), as well as the additional rules in § 1.401(a)(4)–8(b)(3)(ii)
through (vii);

October 31, 2011

(9) Church plans described in § 414(e)
that have not made the election provided
by § 410(d);
(10) Governmental plans that include
so-called “DROP” provisions or similar
provisions;
(11) Plans under which the § 415 limitations are incorporated by reference;
(12) Plans that incorporate the ADP test
under § 401(k)(3) or the ACP test under
§ 401(m)(2) by reference;
(13) Section 401(k) plans that provide for hardship distributions under
circumstances not described in the safe
harbor standards in the regulations under
§ 401(k), unless these distributions are
subject to nondiscriminatory and objective
criteria contained in the plan;
(14) Fully-insured § 412(e)(3) plans,
other than plans that, by their terms, satisfy
the safe harbor in § 1.401(a)(4)–3(b)(5);
(15) Plans that fail to contain a provision reflecting the requirements of
§ 414(u) (see Rev. Proc. 96–49);
(16) Plans that include so-called failsafe provisions for § 401(a)(4) or the average benefit test under § 410(b);
(17) Plans that include blanks or fill-in
provisions for the employer to complete,
unless the provisions have parameters that
preclude the employer from completing
the provisions in a manner that could violate the qualification requirements;
(18) Plans designed to satisfy the provisions of § 105;
(19) Plans that include § 401(h) accounts;
(20) Eligible combined plans within the
meaning of § 414(x)(2).
The Service may, in its discretion, decline to issue advisory letters for other
types of plans not described in this section
16.03.
SECTION 17. ADVISORY
LETTERS — INSTRUCTIONS TO
VS PRACTITIONERS
.01 Employee Plans Rulings and Agreements Issues Advisory Letters — Employee Plans Rulings and Agreements
will, upon the request of a VS practitioner,
issue an advisory letter as to the acceptability of the form of the VS practitioner’s
specimen plan under § 401(a) or 403(a).

.02 Procedure for Requesting Advisory
Letters — A request for an advisory letter relating to a specimen plan must be
submitted on the current version of Form
4461, Application for Approval of Master or Prototype or Volume Submitter Defined Contribution Plans, Form 4461-A,
Application for Approval of Master or Prototype or Volume Submitter Defined Benefit Plans, or Form 4461-B, Application
for Approval of Master or Prototype or
Volume Submitter Plans Mass Submitter
Adopting Sponsor or Practitioner, as appropriate. The Service intends to revise
Forms 4461, 4461-A, and 4461-B. Until
the forms have been revised, a request for
an advisory letter should be accompanied
by the appropriate form with the following
items, if applicable, completed:
(1) Form 4461 — Complete Part 1,
items 1–9, and Attachment 1 which can
be accessed at http://www.irs.gov/pub/irstege/form4461_attachment.pdf
(2) Form 4461-B — Complete in its
entirety.
(3) Form 4461-A (relates to DB plans)
— Complete Part 1 and an attachment that
the Service will provide at a future date
These forms may be downloaded from
the Internet at the following address:
http://www.irs.gov. All information on
the first page of the application must be
typed. The request must be sent to the address in section 20. The VS request must
be accompanied by the required user fee
submitted with Form 8717, User Fee for
Employee Plan Determination, Opinion
and Advisory Letter Request, and a signed
certification that all necessary amendments required by the Service to retain the
qualified status of the VS practitioner’s
specimen plan have been made and communicated to all adopting employers.6 See
http://www.irs.gov/pub/irs-tege/cert_interim_amendments.pdf for certification.
.03 Separate Specimen Plans and Applications Required for Different Categories of Plans
(1) Specimen plans that consist of a
basic plan document and adoption agreement. Except as provided in this section
17.03(1), the rules in section 7.04 (disregarding references therein to standardized and nonstandardized plans) apply to a
specimen plan that consists of a basic plan

document and adoption agreement as if the
specimen plan were an M&P plan. Thus,
a single basic plan document may not be
used in conjunction with both defined contribution specimen plans and defined benefit specimen plans. In addition, a defined contribution specimen plan may not
include any combination of profit-sharing,
money purchase (other than target benefit), and target benefit plan. Accordingly,
separate adoption agreements are required
for each of these types of defined contribution specimen plans. The separate defined
contribution adoption agreements may be
associated with the same defined contribution basic plan document, but the provisions of the basic plan document must
be identical for all specimen plans using
that document (that is, no elective or optional features). Likewise, multiple defined benefit adoption agreements may be
associated with a single defined benefit basic plan document if the provisions of the
basic plan document are identical for all
specimen plans using that document (that
is, no elective or optional features). Separate adoption agreements are not required
for defined benefit specimen plans that are
integrated (i.e., provide for permitted disparity) and defined benefit specimen plans
that are non-integrated. Instead, a single
defined benefit adoption agreement may
provide options for both integrated and
non-integrated benefit formulas.
In addition, the same basic plan document may not be used for both nongovernmental specimen plans (i.e., specimen
plans that are not described in § 414(d))
and governmental specimen plans. However, separate governmental defined contribution specimen plans may have the
same basic plan document and separate
governmental defined benefit specimen
plans may have the same basic plan document.
A separate application form is required
to be submitted for each specimen plan,
that is, for each basic plan document/adoption agreement combination (where the
specimen plan consists of a basic plan
document and adoption agreement). In
the case of a simultaneous submission of
plans using the same basic plan document,
only one copy of the basic plan document
should be provided. If the requests are not

6 See footnote 4 for interim user fee information under Rev. Proc. 2011–8, User fees for employee plans and exempt organizations, as modified by Announcement 2011–8, until Form 8717,
User Fee for Employee Plan Determination, Opinion and Advisory Letter Request, is modified.

October 31, 2011

622

2011–44 I.R.B.

simultaneous, the sponsor must submit
a copy of the basic plan document with
each submission and include a cover letter
identifying the original submission. The
plan number of such basic plan document
must remain the same as in the prior submission.
(2) Specimen plans that consist of
a single document without an adoption
agreement. A separate specimen plan and
application is required for each of the following categories of specimen plans where
the specimen plan consists of a single
document without an adoption agreement:
a profit-sharing plan (with or without a
§ 401(k) arrangement), a money purchase
pension plan (other than a target benefit
plan), a target benefit plan, and a defined
benefit plan. In addition, a separate specimen plan and application is required for
each of the categories of plans in the preceding sentence if the specimen plan is a
governmental plan. Different categories
may not be combined in a single specimen
plan or application. Thus, for example,
separate specimen plans and application
forms must be submitted for a governmental defined benefit specimen plan that
consists of a single document without
an adoption agreement and a nongovernmental defined benefit specimen plan that
consists of a single document without an
adoption agreement.
.04 Sample Language — A Listing
of Required Modifications (LRM) containing sample plan language is available
from Employee Plans Rulings and Agreements. Although the sample language is
designed for use in M&P plans, which
use an adoption agreement format, VS
practitioners should refer to the sample
language as a guide in drafting VS plans.
To expedite the review of their plans,
VS practitioners are encouraged to use
LRM language where appropriate and to
identify where such language is being
used in their plan documents. LRMs may
be downloaded from the Internet at the
following address: http://www.irs.gov/retirement/article/0,,id=97182,00.html.
.05 Timing of Issuance of Advisory Letters — The Service intends to issue advisory letters to practitioners and VS mass
submitters (as well as opinion letters to
M&P mass submitters and sponsors) at ap-

proximately the same time within the applicable six-year cycle. In the interim, the
Service will send an email to the applicable
M&P or VS mass submitter, sponsor, or
practitioner if the Service determines that
the plan appears to be in full compliance
with the applicable qualification requirements, based on the submissions and the
completed review. Notwithstanding the
preceding sentence, this email only provides assurance that the Service believes
the plan appears to meet the applicable
qualification requirements under review as
of the date of the email. This email correspondence is for the convenience of the applicable sponsor, practitioner, or mass submitter, but does not constitute an official
opinion or advisory letter. Until issuance
of the official opinion or advisory letter no
reliance exists. The Service reserves the
right to require changes after the email is
sent, in its sole discretion.
SECTION 18. VS MASS SUBMITTERS
.01 Advisory Letters Issued to VS Mass
Submitters — EP Rulings and Agreements
will, upon request by a VS mass submitter,
as defined in section 13.06, issue an advisory letter as to the acceptability of the
form of the VS mass submitter’s specimen
plan under § 401(a) or 403(a). See section
20 for the address to file the application.
The provisions of section 17.05 on the timing of the issuance of advisory letters and
an interim email notification by the Service also apply under this section.
.02 As noted in section 17.02, a VS
mass submitter’s application must be submitted on the current version of Form
4461, Application for Approval of Master
or Prototype or Volume Submitter Defined Contribution Plans, Form 4461-A,
Application for Approval of Master or
Prototype or Volume Submitter Defined
Benefit Plans, or Form 4461-B, Application for Approval of Master or Prototype
or Volume Submitter Plans Mass Submitter Adopting Sponsor or Practitioner, as
appropriate. The Service intends to revise
Forms 4461, 4461-A, and 4461-B. Until
the forms have been revised, a request for
an opinion letter should be accompanied
by the appropriate form with the following
items, if applicable, completed:

(1) Form 4461 — Complete Part 1,
items 1–9, and Attachment 1 which can
be accessed at http://www.irs.gov/pub/irstege/form4461_attachment.pdf
(2) Form 4461-B — Complete in its
entirety.
(3) Form 4461-A (relates to DB plans)
— Complete Part 1, and an attachment that
the Service will provide at a future date.
These forms may be downloaded from
the Internet at the following address:
http://www.irs.gov. All information on
the first page of the application must be
typed. The request must be sent to the address in section 20. The VS request must
be accompanied by the required user fee
submitted with Form 8717, User Fee for
Employee Plan Determination, Opinion,
and Advisory Letter Request, and a signed
certification that all necessary amendments required by the Service to retain the
qualified status of the VS practitioner’s
specimen plan have been made and communicated to all adopting employers.7 See
http://www.irs.gov/pub/irs-tege/cert_interim_amendments.pdf for certification.

PART III — ALL
PRE-APPROVED PLANS
SECTION 19. EMPLOYER RELIANCE
.01 Standardized M&P Plans — An
employer adopting a standardized M&P
plan may rely on that plan’s opinion letter, except as provided in (1) through (3)
and section 19.03 below, if the sponsor of
such plan or plans has a currently valid
favorable opinion letter, the employer has
followed the terms of the plan(s), and the
coverage and contributions or benefits
under the plan(s) are not more favorable
for highly compensated employees (as
defined in § 414(q)) than for other employees.
(1) An employer may not rely on an
opinion letter for a standardized plan with
respect to the requirements of §§ 415 and
416, without obtaining a determination letter, if the employer maintains at any time,
or has maintained at any time, another
plan, including a standardized plan, that
was qualified or determined to be qualified
covering some of the same participants.
For this purpose, a plan that has been prop-

7 See footnote 4 for interim user fee information under Rev. Proc. 2011–8, User fees for employee plans and exempt organizations, as modified by Announcement 2011–8 until, Form 8717,
User Fee for Employee Plan Determination, Opinion and Advisory Letter Request, is updated.

2011–44 I.R.B.

623

October 31, 2011

erly replaced by the adoption of a standardized plan is not considered another plan.
For example, the plan that has been replaced and the standardized plan must be
of the same type (e.g., both defined benefit plans) in order for the employer to be
able to rely on the standardized plan with
respect to the requirements of §§ 415 and
416 without obtaining a determination letter. In addition, an employer that adopts
a standardized defined contribution plan
will not be considered to have maintained
another plan merely because the employer
has maintained another defined contribution plan(s), provided such other plan(s)
has been terminated prior to the effective
date of the standardized plan and no annual
additions have been credited to the account
of any participant under such other plan(s)
as of any date within a limitation year of
the standardized plan.
(2) An employer that has adopted a
standardized defined benefit plan may rely
on an opinion letter with respect to the requirements of § 401(a)(26) only if the plan
satisfies the requirements of § 401(a)(26)
with respect to its prior benefit structure
or is deemed to satisfy § 401(a)(26) under
the regulations. However, an employer
may request a determination letter if the
employer wishes to have reliance as to
whether the plan satisfies § 401(a)(26)
with respect to its prior benefit structure.
(3) An employer that adopts a standardized plan may not rely on an opinion letter
with respect to: (a) whether the timing of
any amendment to the plan (or series of
amendments) satisfies the nondiscrimination requirements of § 1.401(a)(4)–5(a),
except with respect to plan amendments
granting past service that meet the safe
harbor described in § 1.401(a)(4)–5(a)(3)
and are not part of a pattern of amendments that significantly discriminates in
favor of highly compensated employees; or (b) whether the plan satisfies
the effective availability requirement of
§ 1.401(a)(4)–4(c) with respect to any
benefit, right, or feature. An employer that
adopts a standardized plan as an amendment to a plan other than a standardized
plan may not rely on an opinion letter
with respect to whether a benefit, right, or
feature that is prospectively eliminated satisfies the current availability requirements
of § 1.401(a)(4)–4 of the regulations. Such
an employer may request a determination letter if the employer wishes to have

October 31, 2011

reliance as to whether the prospectively
eliminated benefit, right, or feature satisfies the current availability requirements.
.02 Nonstandardized M&P Plans and
Volume Submitter Plans — An employer
adopting a nonstandardized M&P or VS
plan may rely on that plan’s opinion or
advisory letter as described in this section 19 if the employer’s plan is identical to an approved M&P or specimen plan
with a currently valid favorable opinion
or advisory letter, the employer has not
amended the plan other than to choose options provided under the approved plan or
to make amendments as described in section 19.03(3), and the employer has followed the terms of the plan. These employers can forego filing Form 5307 and
rely on the plan’s favorable opinion or advisory letter with respect to the qualification requirements, except as provided in
subparagraphs (1) through (4) and section
19.03 below.
(1) Except as provided in section
19.02(2), (3) and (4), adopting employers
of nonstandardized M&P plans and VS
plans may not rely on a favorable opinion or advisory letter with respect to the
requirements of:
(a) § 401(a)(4), 401(a)(26), 401(l),
410(b), or 414(s); or
(b) if the employer maintains or has
ever maintained another plan covering
some of the same participants, § 415 or
416.
For this purpose, whether an employer
maintains or has ever maintained another
plan will be determined using principles
consistent with section 19.01 above.
(2) Adopting employers of nonstandardized M&P plans and VS plans may
rely on the opinion or advisory letter with
respect to the requirements of §§ 410(b)
and 401(a)(26) (other than the § 401(a)(26)
requirements that apply to a prior benefit
structure) if 100 percent of all nonexcludable employees benefit under the plan.
(3) Nonstandardized M&P plans must
give adopting employers the option to
elect a safe harbor allocation or benefit
formula and a safe harbor compensation
definition. Adopting employers of nonstandardized M&P plans that elect a safe
harbor allocation or benefit formula and a
safe harbor compensation definition may
rely on an opinion letter with respect to the
nondiscriminatory amounts requirement
under § 401(a)(4). Adopting employers

624

of nonstandardized M&P plans that are
§ 401(k) and/or § 401(m) plans may rely
on an opinion letter with respect to whether
the form of the plan satisfies the actual
deferral percentage test of § 401(k)(3)
or the actual contribution percentage test
of § 401(m)(2) if the employer elects to
use a safe harbor definition of compensation in the test. Adopting employers
of nonstandardized M&P plans described
in § 401(k)(11) and/or § 401(m)(12) may
rely on an opinion letter with respect to
whether the form of the plan satisfies these
requirements unless the plan provides for
the safe harbor contribution to be made
under another plan.
(4) A VS plan may give an adopting employer the ability to select an
allocation formula for employer nonelective contributions that satisfies one
of the design-based safe harbors in
§ 1.401(a)(4)–2(b)(2) or a benefit formula that satisfies one of the design-based
safe harbors under § 1.401(a)(4)–3(b)(3),
(4), or (5), and the ability to select a safe
harbor compensation definition for such
formula that satisfies § 1.414(s)–1(c). If
the plan of the adopting employer allocates contributions or provides benefits using one of the designed based
safe harbors in § 1.401(a)(4)–2(b)(2) or
§ 1.401(a)(4)–3(b)(3), (4), or (5), and the
plan defines compensation using a definition that satisfies § 1.414(s)–1(c) then
the adopting employer may rely on an
advisory letter with respect to the nondiscriminatory amounts requirement under
§ 401(a)(4).
.03 Other Limitations and Conditions
on Reliance — The following conditions
and limitations apply with respect to both
M&P and VS plans:
(1) An adopting employer can rely on
a favorable opinion or advisory letter for
a plan that amends or restates a plan of
the employer only if the plan that is being
amended or restated was qualified.
(2) An adopting employer has no reliance if the employer’s adoption of the
plan precedes the issuance of an opinion
or advisory letter for the plan.
(3) An adopting employer can rely on
an opinion or advisory letter only if the requirements of this section 19 are met, and
the employer’s plan is identical to an approved M&P or specimen plan with a currently valid favorable opinion or advisory
letter; that is, the employer has not added

2011–44 I.R.B.

any terms to the approved M&P or VS plan
and has not modified or deleted any terms
of the plan other than choosing options permitted under the plan or, in the case of an
M&P plan, amended the document as permitted under section 5.06 or 5.09 or, in
the case of a VS plan, modified the document as permitted under sections 14 and
15. Thus, for example, in the case of a VS
plan, the employer’s plan must be identical to the approved specimen plan except
as the result of the employer’s selection
among options that are permitted under the
terms of the approved specimen plan and
modifications permitted under sections 14
and 15.
For purposes of this section 19.03(3),
a plan will not fail to be identical to an
approved M&P or specimen plan if:
(a) the employer modifies or amends
the plan to add or change a provision
and/or to specify or change the effective
date of a provision, provided the employer
is permitted to make the modification or
amendment under the terms of the approved M&P or specimen plan as well as
under § 401(a) or 403(a), and, except for
the effective date, the provision is identical to a provision in the approved plan;
(b) the employer, sponsor or practitioner adopts an interim or discretionary
amendment in accordance with section 21
or Rev. Proc. 2007–44; or
(c) the employer adopts a model or sample amendment that the Service has indicated will not cause the plan to be treated
as an individually designed plan.
For example, an employer is not required to restate its M&P or VS plan in
order to change options under the plan or to
specify different effective dates. Also see
section 5.02, which limits an employer’s
ability to amend an M&P plan without
causing the plan to be treated as an individually designed plan, and section 5.11,
which requires the employer to complete
a new signature page when the employer
changes options in an M&P adoption
agreement. An adopting employer cannot
rely on an opinion or advisory letter if the
adopting employer has modified the terms
of the plan’s approved trust in a manner
that would cause the plan to fail to be
qualified under § 401(a).
.04 Reliance Equivalent to Determination Letter — If an employer can rely on
a favorable opinion or advisory letter pursuant to this section, the opinion or advi-

2011–44 I.R.B.

sory 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 Rev. Proc.
2011–6, regarding the effect of a determination letter, and section 5.01(4) of Rev.
Proc. 2008–50, regarding the definition of
“favorable letter” for purposes of EPCRS.
Of course, the extent of the employer’s reliance may be limited, as provided in this
section.
SECTION 20. WHERE TO FILE AND
OTHER RULES FOR APPLICATIONS
AND LETTERS
.01 Opinion Letters –Applications for
opinion letters, including applications
filed by M&P mass submitters, should be
sent to the attention of:
Internal Revenue Service
P.O. Box 2508
Cincinnati, OH 45201
Attn: Pre-Approved Plans Coordinator
Room 5106
.02 Advisory Letters — Applications
for advisory letters, including applications
filed by VS mass submitters, should be
sent to:
Internal Revenue Service
P.O. Box 2508
Cincinnati, OH 45201
Attn: Pre-Approved Plans Coordinator
Room 5106

.03 For purposes of .01 and .02 above, a
request shipped by Express Mail or a delivery service should be sent to the attention
of the Pre-Approved Plans Coordinator, to:
Internal Revenue Service
550 Main Street
Cincinnati, OH 45202
Room 5106

.04 Effect of Failure to Disclose Material Fact or to Accurately Provide Information — The Service may determine, based
on the application, the extent of review of
the pre-approved plan. A failure to disclose a material fact or misrepresentation
of a material fact in the application may adversely affect the reliance that would oth-

625

erwise be obtained through issuance by the
Service of a favorable opinion or advisory
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 on the favorable opinion letter or advisory letter.
.05 Additional Information May Be Requested — The Service may, at its discretion, require any additional information that it deems necessary, including a
demonstration of how the variables (options or alternatives) in the M&P or specimen plan interrelate to satisfy the qualification requirements of the Code. If a letter requesting changes to plan documents
is sent to the sponsor or VS practitioner or
an authorized representative, the changes
must be received no later than 30 days
from the date of the letter, and the response
must include either a copy of the plan with
the changes highlighted or, if the changes
are not extensive, replacement pages. If
the changes are not received within 30
days, the application may be considered
withdrawn. An extension of the 30-day
time limit will only be granted for good
cause.
.06 Inadequate Submissions — The
Service will return, without further action,
plans that are not in substantial compliance with the qualification requirements
of § 401(a) or 403(a) or plans that are so
deficient that they cannot be reviewed in
a reasonable amount of time. A plan may
be considered not to be in substantial compliance if, for example, it omits or merely
incorporates qualification requirements by
reference to the applicable Code section.
The Service will not consider these plans
until after they are revised, and they will
be treated as new requests as of the date
they are resubmitted. No additional user
fee will be charged if an inadequate submission is amended to be in substantial
compliance and is resubmitted to the Service within 30 days following the date the
sponsor or VS practitioner is notified of
such inadequacy.
.07 Nonidentification of Questionable
Issues May Cause Delay — If the plan document submitted as part of an opinion or
advisory letter request contains a provision
that gives rise to an issue for which contrary published authorities exist, failure to
disclose and address significant contrary
authorities, as required in section 6.12 of
Rev. Proc 2011–6, 2011–1 I.R.B. 195, may

October 31, 2011

result in requests for additional information, which will delay action on the request.
.08 DOL Participant Loan Regulations
not Addressed by Opinion or Advisory
Letter — Pre-approved plans may adopt
procedures to comply with the Department
of Labor’s (DOL) participant loan regulations under section 408(b)(1) of ERISA in
the plan or in a separate document. The
adoption of procedures outside of the plan
document that are intended to comply with
these regulations will not cause a pre-approved plan to be considered an individually designed plan. The Service will not
review loan program procedures (whether
in the plan or in a separate written document) to determine whether they comply
with the requirements of the DOL regulations. Also, any opinion or advisory letter issued for a pre-approved plan will not
consider whether loan program procedures
may, in the operation of the plan, have an
adverse effect on the qualified status of the
plan. However, the loan program procedures under the plan may not be inconsistent with the qualification requirements of
§ 401(a) of the Code.
.09 Nontransferability of Opinion and
Advisory Letters — An opinion or advisory letter issued to a sponsor or VS practitioner is not transferable to any other entity. In the case of a change in entity, a letter issued to a sponsor or VS practitioner
may not be relied upon by a different entity. If a different entity assumes sponsorship of the plan, it must submit an application for a new letter. Such an application
may be filed at the time of the assumption
of sponsorship and the filing is not limited to the applicable on-cycle submission
period. The application will be subject to
a reduced user fee as provided in section
6.03(8) or 6.04(4) of Rev. Proc. 2011–8.
The new letter will recognize the change in
sponsorship and will not modify the scope
of or change the reliance on the original
letter. The Service may in appropriate circumstances request documentation of the
assumption of sponsorship prior to issuing
a letter to the new entity. Examples of a
change in entity include, but are not limited to, a change in the employer identification number, the acquisition of a sponsor
by another entity or the sale or transfer of
the stock or assets of the sponsor to another
entity.

October 31, 2011

SECTION 21. AMENDMENTS
.01 Opinion or Advisory Letters for
Sponsor or VS Practitioner Amendments
— A plan must be operated in accordance
with the written plan document. When
there are changes with respect to plan qualification requirements that will impact the
provisions of the written plan document,
the adoption of interim amendments will
generally be required in accordance with
the rules set forth in Rev. Proc. 2007–44.
Interim amendments adopted by a pre-approved sponsor or practitioner on behalf
of adopting employers must be provided
to the adopting employers. The date on
which each amendment is adopted by the
M&P sponsor or VS practitioner must
be provided with the amendment. The
requirement to provide the date for each
amendment is effective for amendments
adopted by the sponsor or practitioner on
or after the effective date of this revenue
procedure. However, this does not change
the applicable on-cycle submission period for the six-year cycle when sponsors
or VS practitioners must request opinion
or advisory letters, which will still only
occur once every six years. The Service
will entertain a request for an opinion or
advisory letter as to the acceptability, for
purposes of § 401(a) or 403(a), of the
form of the plan as restated, during the
applicable on-cycle submission period for
the six-year cycle, as provided in section
8.01 and section 15.01. The sponsor or
VS practitioner must, except as provided
in section 12 or section 18, submit an application under the procedures in section
7 or section 17, together with a copy of
the plan’s certification regarding interim
amendments, a cover letter summarizing
the changes to the plan that are affected
by such amendment(s), and a copy of the
plan that is being restated. The Service
retains the right to request and secure
from the sponsor/practitioner in appropriate circumstances copies of all interim
amendments reflected on the applicable
Cumulative List that the sponsor/practitioner has adopted on behalf of its adopting
employers.
.02 Loss of Qualified Status for Certain
Amendments — A pre-approved plan will
not lose its qualified status merely because
amendments are made that cover any of the
following:

626

(1) Amendments to conform a plan to
the requirements of section 402(a) of Title I of the Employee Retirement Income
Security Act of 1974 (ERISA), Pub. L.
93–406, 1974–3 C.B. 1, relating to named
fiduciaries.
(2) Amendments to conform a plan to
the requirements of section 503 of ERISA,
relating to claims procedures.
(3) Amendments to conform the plan
to the requirements of DOL Field Assistance Bulletin No. 2008–1, which provides guidance on the need for plans to
specify the duties of trustees with respect
to the responsibility for collection of delinquent contributions.
(4) Amendments that adjust the limitations under §§ 415, 402(g), 401(a)(17),
and 414(q)(1)(B) of the Code to reflect
annual cost-of-living increases, other than
amendments that add automatic cost-ofliving adjustment provisions to the plan.
(5) Amendments that reflect a change of
a sponsor’s or VS practitioner’s name. The
sponsor or VS practitioner must notify the
Service, in writing, of the change in name
and certify that it still meets the conditions
for sponsorship described in section 4.07
or 13.05. (Also see section 20 regarding
changes in employer identification numbers.)
.03 Off-Cycle Filing — An application for an opinion or advisory letter for
a plan that is word-for-word identical to
an approved mass submitter that has a
current advisory or opinion letter will not
be treated as off-cycle merely because it
is submitted after the end of the applicable on-cycle submission period for the
six-year cycle.
Any other application for an opinion
or advisory letter that is submitted after
the applicable on-cycle submission period
for the six-year cycle will be treated as an
off-cycle filing. If such an off-cycle application is submitted before the beginning of
the two year period for employer adoption
announced by the Service for an applicable six-year cycle, the application will not
be reviewed until all on-cycle plans (including applications for determination letters for individually designed plans within
their staggered five-year cycle) have been
reviewed and processed. However, the
Service may, in its discretion, determine
whether the processing of off-cycle filings
may be prioritized and accelerated under
certain circumstances. Off-cycle applica-

2011–44 I.R.B.

tions that are submitted during or after the
two-year period will not be accepted.
SECTION 22. REVOCATION
Revocation of Opinion or Advisory
Letter by the Service — An opinion or advisory letter found to be in error or not in
accord with the current views of the Service may be revoked. Also, see sections
4.07 and 13.05. Except in rare or unusual
circumstances, such revocation will not be
applied retroactively if the conditions set
forth in sections 13 and 14 of Rev. Proc.
2011–4, 2011–1 I.R.B. 123, are met. For
this purpose, opinion and advisory letters
will be given the same effect as rulings.
Revocation may be effected by a notice to
the sponsor or VS practitioner to which the
letter was originally issued, or by publication in the Internal Revenue Bulletin. The
sponsor or VS practitioner should then
notify each adopting employer of the revocation as soon as possible. The content of
the notification to each adopting employer
must explain how the revocation affects
any reliance an adopting employer has on
the applicable advisory or opinion letter
and on any determination letter issued.
SECTION 23. SECOND ON-CYCLE
SUBMISSION PERIOD (POST EGTRRA) FOR PRE-APPROVED DC
PLANS
The second on-cycle submission period
(post-EGTRRA) began on February 1,
2011, and ends on January 31, 2012, for
applications for opinion and advisory
letters for defined contribution plans that
take into account the changes identified
on the 2010 Cumulative List. However,
a plan must comply in operation with all
relevant qualification requirements, not
just those on the 2010 Cumulative List.
The Service is accepting opinion and
advisory letter applications for pre-approved defined contribution plans during
the second six-year remedial amendment cycle that began on February 1,
2011. As provided in section 18.02(1)
of Rev. Proc. 2007–44, the on-cycle submission period for non-mass
submitter sponsors and practitioners,
word-for-word identical adopters, and
M&P minor modifier placeholder applications will end on January 31, 2012.
Section 18.02(1) of Rev. Proc. 2007–44

2011–44 I.R.B.

also provides that the 9-month submission
period for mass submitter sponsors and
practitioners will end on October 31,
2011. The deadline to submit applications
for opinion and advisory letters for
sponsors and practitioners maintaining
defined contribution mass submitter plans
is extended from October 31, 2011 to
January 31, 2012. The 2010 Cumulative
List is to be used by plan sponsors and
practitioners submitting determination,
opinion or advisory letter applications for
plans during this period. However, if a
plan has not been previously reviewed
for items on earlier cumulative lists,
the plan must still take those items into
account.
For example, pre-approved
defined contribution plans have not yet
been reviewed for items on the 2005
Cumulative List, so those items have
been retained on the 2010 Cumulative
List. The Service will announce the
deadline for timely adoption by employers
when the review of the pre-approved
documents is close to being completed.
Applications for opinion and advisory
letters for pre-approved defined benefit
plans will be accepted beginning February
1, 2013. It is expected that the procedures
for applying for opinion and advisory
letters will be updated from time to time.
SECTION 24. REMEDIAL
AMENDMENT PERIOD
.01 Revenue Procedure 2007–44 contains the Service’s procedures for issuing
letters for pre-approved plans under a regular, six-year remedial amendment cycle
and individually designed plans under a
staggered five-year remedial amendment
cycle. That revenue procedure extended a
plan’s EGTRRA remedial amendment period to the end of the plan’s first applicable cycle. It explains the conditions under
which an adopting employer who timely
adopts a pre-approved plan will be treated
as having adopted the plan within the employer’s six-year remedial amendment cycle, and which Cumulative List will apply
in the case of plans that become individually designed under the circumstances described in section 24.02.
.02 An employer that has adopted an
M&P plan or a VS specimen plan may
have modified the plan in such a way
that the plan, as adopted by the employer,
would not be considered an M&P plan or

627

a VS plan. The effect of employer amendments or the adoption of an individually
designed plan on employers eligible for
the six-year remedial amendment cycle
is described in section 19 of Rev. Proc.
2007–44.
.03 In addition to the provisions described in section 19 of Rev.
Proc.
2007–44, the Service may in its discretion
determine that a plan is an individually
designed plan that will not receive an extended remedial amendment cycle, due to
the nature and extent of the amendments.
SECTION 25. EFFECT ON OTHER
DOCUMENTS
Rev. Proc. 2005–16 is modified and
superseded. Rev. Proc. 2011–6 and Rev.
Proc. 2011–8 are modified.
SECTION 26. EFFECTIVE DATE
This revenue procedure is effective October 31, 2011.
SECTION 27. PAPERWORK
REDUCTION ACT
The collection of information contained in this revenue procedure has 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
1545–1674.
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 collection of information in this
revenue procedure is in sections 5.11,
8.02, 11.02, 12, 14.05, 15.02, 18 and 24.
This information is required to enable
the Commissioner, Tax Exempt and Government Entities Division of the Internal
Revenue Service to make determinations
in connection with plan qualification. This
information will be used to determine
whether a plan is entitled to favorable
tax treatment. The likely respondents
are banks, insurance companies, other
financial institutions, law, actuarial and
consulting firms, employee benefit practitioners and employers.
The estimated total annual reporting
and/or recordkeeping burden is 1,058,850
hours.

October 31, 2011

The estimated annual burden per respondent/recordkeeper varies from 1/2 to
2,000 hours, depending on individual circumstances, with an estimated average
of 3.56 hours. The estimated number
of respondents and/or recordkeepers is
297,750.
The estimated frequency of responses is
occasional.
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

Government Entities Division. For further
information concerning this revenue
procedure, please contact the Employee
Plans’ taxpayer assistance telephone
service at 1–877–829–5500 (a toll-free
number) or email Ms.
Herrmann at
[email protected].

The principal author of this revenue
procedure is Kathleen Herrmann of
the Employee Plans, Tax Exempt and

Use this Revenue Procedure to prepare Tax Year 2011 and prior year information returns for submission to Internal Revenue Service
(IRS) electronically.
This Revenue Procedure is not revised every year. Updates will be printed as needed in the Internal Revenue Bulletin. General
Instructions for Form 1042-S are revised every year. Be sure to consult current instructions when preparing Form 1042-S.
Following is a list of related instructions and forms for filing Form 1042-S Electronically:

•

Current paper Instructions for Form 1042-S

•

Form 4419 — Application for Filing Information Returns Electronically (FIRE)

•

Form 8508 — Request for Waiver From Filing Information Returns Electronically

•

Form 8809 — Application for Extension of Time To File Information Returns

•

Publication 515 — Withholding of Tax on Nonresident Aliens and Foreign Entities (for general information and explanation of tax law associated with Form 1042-S)

•

Publication 901 — U.S. Tax Treaties

The Internal Revenue Service (IRS), Information Returns Branch (IRB) encourages filers to make copies of the blank forms in the
back of this publication for future use. You can also download forms and publications from the IRS Web Site at IRS.gov. These forms
can also be obtained by calling 1–800–TAX-FORM (1–800–829–3676).

Caution to filers:
Please read this publication carefully. Persons or businesses required to file information returns electronically may be
subject to penalties for failure to file or include correct information if the instructions in this Revenue Procedure are
not followed.

IMPORTANT NOTES:
The IRS internet connection for filing information returns electronically is http://fire.irs.gov. The Filing Information
Returns Electronically (FIRE) system will be down from 6 p.m. Eastern Time (ET) December 16, 2011, through January 3,
2012 for yearly updates. In addition, the FIRE system may be down every Wednesday from 2:00 a.m. to 5:00 a.m. ET for
programming updates. The FIRE system will not be available for submissions during these times.
Form 4419, Application for Filing Information Returns Electronically (FIRE) is subject to review before the approval to
transmit electronically is granted. IRS may require additional documentation. If a determination is made concerning
the validity of the documents transmitted electronically, IRS has the authority to revoke the Transmitter Control Code
(TCC) and terminate the release of the files.
The FIRE system does not provide fill-in forms for filing information returns.

October 31, 2011

628

2011–44 I.R.B.