Rp 2016-6

RP 2016-6.pdf

Employee Plans Determination Letter Program

RP 2016-6

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26 CFR 601.201: Rulings and determination letters.

Rev. Proc. 2016 – 6
TABLE OF CONTENTS
SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? ...........................................................................................203

.01 Purpose of revenue procedure.................................................................................................................................................203
.02 Organization of revenue procedure .......................................................................................................................................203
SECTION 2. WHAT CHANGES HAVE BEEN MADE TO THIS PROCEDURE?.......................................................................................203

.01
.02
.03
.04

PART I. PROCEDURES FOR DETERMINATION LETTER REQUESTS
SECTION 3. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN GUIDANCE UNDER THIS PROCEDURE?........................205

.01 Types of requests.....................................................................................................................................................................205
.02 Areas in which determination letters will not be issued........................................................................................................205
.03 Submission period for applications .......................................................................................................................................206
SECTION 4. ON WHAT ISSUES MUST WRITTEN GUIDANCE BE REQUESTED UNDER DIFFERENT PROCEDURES? ...................206

.01 Tax Exempt and Government Entities....................................................................................................................................206
.02 Chief Counsel’s revenue procedure .......................................................................................................................................207
SECTION 5. WHAT IS THE GENERAL SCOPE OF A DETERMINATION LETTER? ...........................................................................207

.01
.02
.03
.04
.05
.06
.07
.08
.09

Scope of this section ...............................................................................................................................................................207
Scope of determination letters ................................................................................................................................................207
Design-based safe harbor ........................................................................................................................................................207
Governmental plans under § 414(d) .......................................................................................................................................208
Church plans under § 414(e) ..................................................................................................................................................208
Tax treatment of certain contributions under § 414(h)..........................................................................................................208
Other limits on scope of the determination letter ..................................................................................................................208
Afﬁliated service groups, leased employees and partial terminations...................................................................................208
Publication 794 .......................................................................................................................................................................208

SECTION 6. WHAT IS THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION LETTERS?...................................208

.01
.02
.03
.04
.05
.06
.07
.08
.09
.10
.11
.12
.13
.14
.15
.16

Scope........................................................................................................................................................................................208
Qualiﬁed trusteed plans ...........................................................................................................................................................208
Qualiﬁed nontrusteed annuity plans........................................................................................................................................209
Complete information required ...............................................................................................................................................209
Complete copy of plan and trust instrument required ...........................................................................................................209
Section 9 of Rev. Proc. 2016 – 4 applies ................................................................................................................................209
Separate application required for each single § 414(l) plan..................................................................................................209
Prior letters ..............................................................................................................................................................................210
User fees ..................................................................................................................................................................................210
Interested party notiﬁcation and comment .............................................................................................................................210
Contrary authority must be distinguished...............................................................................................................................210
Employer/employee relationship .............................................................................................................................................210
Incomplete applications ...........................................................................................................................................................210
Effect of failure to disclose material fact ...............................................................................................................................212
Where to ﬁle requests..............................................................................................................................................................212
Submission of related plans ....................................................................................................................................................212

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.17 Withdrawal of requests............................................................................................................................................................212
.18 Right to status conference .......................................................................................................................................................212
.19 How to request status conference ..........................................................................................................................................212
SECTION 7. WHEN DETERMINATION LETTERS ARE ISSUED ...............................................................................................................213

.01
.02
.03
.04
.05
.06
.07

Requesting Determination Letters...........................................................................................................................................213
Forms .......................................................................................................................................................................................213
Off-Cycle Applications............................................................................................................................................................213
Application must include copy of plan and amendments......................................................................................................213
Restatements required..............................................................................................................................................................214
Controlled group elections pursunt to Revenue Procedure 2007– 44....................................................................................214
§ 414(x) combined plans.........................................................................................................................................................214

SECTION 8. EMPLOYER RELIANCE ON M&P AND VOLUME SUBMITTER PLANS .........................................................................214

.01 Scope........................................................................................................................................................................................215
.02 Determination letter for adoption of volume submitter plan .................................................................................................215
.03 Timing of determination letter applications for adopting employers of pre-approved plans ..............................................217
SECTION 10. MULTIPLE EMPLOYER PLANS................................................................................................................................................217

.01
.02
.03
.04
.05
.06

SECTION 11. RESERVED ......................................................................................................................................................................................218
SECTION 12. TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS; NOTICE OF MERGERS,
CONSOLIDATIONS, ETC.............................................................................................................................................................218

.01
.02
.03
.04
.05
.06

SECTION 13. GROUP TRUSTS.............................................................................................................................................................................219

.01 Scope........................................................................................................................................................................................219
.02 Required information...............................................................................................................................................................220
.03 Forms .......................................................................................................................................................................................220
SECTION 14. AFFILIATED SERVICE GROUPS; LEASED EMPLOYEES .................................................................................................220

.01
.02
.03
.04
.05
.06
.07

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January 4, 2016

SECTION 15. WAIVER OF MINIMUM FUNDING...........................................................................................................................................222

.01 Applicability of Rev. Proc. 2004 –15......................................................................................................................................222
SECTION 16. SECTION 401(h) AND § 420 DETERMINATION LETTERS.................................................................................................223

.01 Scope........................................................................................................................................................................................223
.02 Required information for § 401(h) determination..................................................................................................................223
.03 Required information for § 420 determination ......................................................................................................................223
PART II. INTERESTED PARTY NOTICE AND COMMENT
SECTION 17. WHAT RIGHTS TO NOTICE AND COMMENT DO INTERESTED PARTIES HAVE? .................................................224

.01
.02
.03
.04
.05
.06
.07

Rights of interested parties......................................................................................................................................................224
Comments by interested parties ..............................................................................................................................................225
Requests for DOL to submit comments .................................................................................................................................226
Right to comment if DOL declines to comment....................................................................................................................226
Conﬁdentiality of comments ...................................................................................................................................................227
Availability of comments ........................................................................................................................................................227
When comments are deemed made .......................................................................................................................................227

SECTION 18. WHAT ARE THE GENERAL RULES FOR NOTICE TO INTERESTED PARTIES? ......................................................227

.01
.02
.03
.04
.05
.06
.07
.08
.09

Notice to interested parties......................................................................................................................................................227
Time when notice must be given............................................................................................................................................227
Content of notice .....................................................................................................................................................................227
Procedures for making information available to interested parties .......................................................................................228
Information to be available to interested parties....................................................................................................................228
Special rules if there are fewer than 26 participants .............................................................................................................229
Information described in § 6104(a)(1)(D) should not be included .......................................................................................229
Availability of additional information to interested parties ...................................................................................................229
Availability of notice to interested parties .............................................................................................................................229
PART III. PROCESSING DETERMINATION LETTER REQUESTS

SECTION 19. HOW DOES THE SERVICE HANDLE DETERMINATION LETTER REQUESTS? .......................................................230

.01
.02
.03
.04
.05

Oral advice...............................................................................................................................................................................230
Conferences..............................................................................................................................................................................230
Determination letter based solely on administrative record ..................................................................................................230
Notice of ﬁnal determination ..................................................................................................................................................231
Issuance of the notice of ﬁnal determination ........................................................................................................................231

SECTION 20. EXHAUSTION OF ADMINISTRATIVE REMEDIES ..............................................................................................................231

.01
.02
.03
.04
.05
.06
.07
.08

In general .................................................................................................................................................................................231
Steps for exhausting administrative remedies ........................................................................................................................231
Applicant’s request for § 7805(b) relief .................................................................................................................................232
Interested parties......................................................................................................................................................................232
Deemed exhaustion of administrative remedies .....................................................................................................................232
Service must act on appeal .....................................................................................................................................................232
Service must act on § 7805(b) request ...................................................................................................................................232
Effect of technical advice request .........................................................................................................................................232

SECTION 21. WHAT EFFECT WILL AN EMPLOYEE PLAN DETERMINATION LETTER HAVE? .................................................233

.01
.02
.03
.04

Scope of reliance on determination letter...............................................................................................................................233
Sections 13 and 14 of Rev. Proc. 2016 – 4 applicable ...........................................................................................................233
Effect of subsequent publication of revenue ruling, etc. .......................................................................................................233
Determination letter does not apply to taxability issues ......................................................................................................233

SECTION 22. EFFECT ON OTHER REVENUE PROCEDURES ...................................................................................................................234

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SECTION 23. EFFECTIVE DATE.........................................................................................................................................................................234
SECTION 24. PAPERWORK REDUCTION ACT..............................................................................................................................................234
DRAFTING INFORMATION .................................................................................................................................................................................234
EXHIBIT ....................................................................................................................................................................................................................234
APPENDIX.................................................................................................................................................................................................................237

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

Organization of revenue
procedure

.01 This revenue procedure sets forth the procedures of the Internal Revenue Service for
issuing determination letters on the qualiﬁed status of pension, proﬁt-sharing, stock bonus,
annuity, and employee stock ownership plans (ESOPs) under §§ 401, 403(a), 409 and
4975(e)(7) of the Internal Revenue Code of 1986, and the status for exemption of any related
trusts or custodial accounts under § 501(a). Also see Rev. Proc. 2007– 44, 2007–2 C.B. 54, as
modiﬁed by Rev. Proc. 2008 –56, 2008 –2 C.B. 826, Rev. Proc. 2009 –36, 2009 –2 C.B. 304,
Notice 2009 –97, 2009 –2 C.B. 972, Notice 2010 –77, 2010 –51 I.R.B. 851 and Rev. Proc.
2012–50, 2012–50 I.R.B. 708, which contains a description of the determination letter program,
including when to submit a request for a determination letter within the 5-year and 6-year
staggered remedial amendment cycles, that apply to individually designed and pre-approved
(Master & Prototype and Volume Submitter (VS)) plans. Also see Rev. Proc. 2015–36, 2015–27
I.R.B. 20, for procedures for pre-approved plans.
.02 Part I of this revenue procedure contains instructions for requesting determination letters for
various types of plans and transactions. Part II contains procedures for providing notice to
interested parties and for interested parties to comment on determination letter requests. Part III
contains procedures concerning the processing of determination letter requests and describes the
effect of a determination letter.

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

.01 This revenue procedure is a general update of Rev. Proc. 2015– 6, 2015–1 I.R.B 194, which
contains the Service’s general procedures for employee plans determination letter requests.

Changes relating to Ann.
2015–19

.02 Announcement 2015–19, 2015–32 I.R.B. 157, describes changes to the Employee Plans
determination letter program for qualiﬁed plans. Effective January 1, 2017, the staggered 5-year
determination letter remedial amendment cycles for individually designed plans, as described in
Rev. Proc. 2007– 44, will be eliminated (except that sponsors of Cycle A plans will be permitted
to submit applications during the period beginning February 1, 2016, and ending January 31,
2017). The scope of the determination letter program for individually designed plans will be
limited to initial plan qualiﬁcation, qualiﬁcation upon plan termination, and certain other limited
circumstances. As of July 21, 2015, the Service ceased accepting off-cycle determination letter
applications (as deﬁned in section 14 of Rev. Proc. 2007– 44), except with respect to new and
terminating plans.
In anticipation of future changes to the Employee Plans determination letter program
eliminating the 5-year remedial amendment cycles, this revenue procedure provides that,
effective as of January 4, 2016, determination letters issued to individually designed plans will
no longer contain an expiration date (currently required under section 13.02 of Rev. Proc.

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203

Sec. 2.02
January 4, 2016

2007– 44). In response to comments submitted with respect to Ann. 2015–19, the Department
of the Treasury and the Service intend to issue guidance with respect to the status of existing
expiration dates on determination letters issued prior to January 4, 2016.
The following changes relating to Announcement 2015–19 have been made:
(1) Section 7.03 has been modiﬁed to reﬂect the restrictions on off-cycle determination letter
applications.
(2) Section 10.05 has been modiﬁed to reﬂect the restrictions on off-cycle determination
letter applications.
(3) Section 21.01 has been modiﬁed to provide that determination letters issued to sponsors of
individually designed plans on or after January 4, 2016, will not contain an expiration date.
(4) Section 23 has been modiﬁed to state that this revenue procedure is effective February 1, 2016
except that the elimination of expiration dates on determination letters under section 21.01 is
effective on January 4, 2016.
Other Changes

.03 The following additional changes have been made. These changes are in addition to minor
revisions, such as updating references, and the changes relating to Ann. 2015–19 set forth in
section 2.02 above.
(1) Section 1.01 has been modiﬁed to delete language relating to the effective date of this
revenue procedure, because the effective date is described in section 23.
(2) Section 3.03 has been modiﬁed to provide that the Service will accept determination letter
applications for the third Cycle A from 2/1/16 to 1/31/17.
(3) The heading of section 5.03 has been clariﬁed to reﬂect that a plan may be reviewed for
a design-based safe harbor rather than a nondiscrimination in amount requirement.
(4) Section 6.04 regarding EPCRS documentation to include for any closing agreement or
compliance statement has been clariﬁed.
(5) Sections 6.09, 7.02(5), 9.02(2)(a), 12.02(6) and 13.03(1) have been modiﬁed to note that
until a revised Form 8717, User Fee for Employee Plan Determination Letter Request, is
published taxpayers should use the existing form but refer to applicable user fees in Rev.
Proc. 2016 – 8, section 6.
(6) Section 6.11 has been modiﬁed to provide that a determination may be made that an
application is not complete and cannot be processed due to a failure to disclose or
distinguish contrary authorities.
(7) Section 6.13 regarding processing of incomplete applications has been clariﬁed to note
that the application will not be returned.
(8) Section 12.02 has been modiﬁed to add Schedule SB for deﬁned beneﬁt plans as one of
the forms required when requesting a determination letter in speciﬁed circumstances.
(9) Section 16.03(5) regarding required information for a § 420 determination has been
revised to state that the plan must provide that no transfer will be made after 12/31/2025.
(10) Section 18.06 has been modiﬁed to delete (6) regarding documents on coverage schedules
or other demonstrations.
(11) Question 5 Part II of the checklist to the Appendix relating to § 420 applications has been
revised to change the date from 12/31/2021 to 12/31/2025.

Other guidance

.04 Other guidance affecting this revenue procedure:
(1) Rev. Proc. 2015–36, 2015–27 I.R.B. 20 describes the procedures for the “pre-approval”
of plans under the master and prototype (M&P) program and the VS program. Rev. Proc.
2007– 44 describes a system of remedial amendment cycles that applies to pre-approved plans
and individually designed plans, and the deadlines to submit applications for opinion, advisory
and determination letters. The Service issues a Cumulative List every year identifying changes
affecting plan qualiﬁcation requirements.
(2) The 2015 Cumulative List is contained in [Notice 2015– 84].

Sec. 2.04
January 4, 2016

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

.01 Determination letters may be requested on completed and proposed transactions as set forth
in the table below:
REV. PROC.
TYPE OF REQUEST
FORMS
SECTION
1. Initial Qualiﬁcation, etc.
a. Individually-designed plans (including collec5300
7
tively bargained plans) and partial terminations
b. ESOPs
5300, 5309
7
c. Adoptions of volume submitter plans (where
5307
9
the employer has made limited modiﬁcations to
the language of the approved specimen plan)
d. Multiple employer plans
5300
10
e. Group trusts
5316
13
f. § 414(x) combined plans
5300
7
2. Termination
a. In general
5310, 6088
12
b. Multiemployer plan covered by PBGC
5300, 6088
12
insurance
Note: Form 5310–A, Notice of Plan Merger, Consolidation, Spinoff or Transfer of Plan Assets or Liabilities – Notice of
Qualiﬁed Separate Lines of Business generally must be ﬁled not less than 30 days before the merger, consolidation or
transfer of assets and liabilities. The ﬁling of Form 5310–A will not result in the issuance of a determination letter.
3. Special Procedures
a. Afﬁliated service group status (§ 414(m)),
5300
14
leased employees (§ 414(n)), partial termination
b. Minimum funding waiver
5300
15
c. Section 401(h) determination letters
5300
16
d. Section 420 determination letters including
5300, Cover letter,
16
other matters under § 401(a)
Checklist
e. Section 420 determination letters excluding other
Cover letter,
16
matters under § 401(a)
Checklist

Areas in which
determination letters will
not be issued

.02 Determination letters issued in accordance with this revenue procedure do not include
determinations on the following issues:
(1) Issues involving §§ 72, 79, 105, 125, 127, 129, 402, 403 (other than 403(a)), 404, 409(l),
409(n), 412, 414(h)(2), 415(m), 457, 511 through 515, and 4975 (other than 4975(e)(7)).
(2) Plans or plan amendments for which automatic reliance is granted pursuant to section 19
of Rev. Proc. 2015–36.
(3) Plan amendments described below (these amendments will, to the extent provided, be
deemed not to alter the qualiﬁed status of a plan under § 401(a)).
(a) An amendment solely to permit a trust forming part of a plan to participate in a pooled
fund arrangement described in Rev. Rul. 81–100, 1981–1 C.B. 326, as clariﬁed and modiﬁed by
Rev. Rul. 2004 – 67, 2004 –2 C.B. 28; Rev. Rul. 2011–1, 2011–2 I.R.B. 251; Notice 2012– 6,
2012–3 I.R.B. 293, and Rev. Rul. 2014 –24, 2014 –37 I.R.B. 529.

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205

Sec. 3.02
January 4, 2016

(b) An amendment that merely adjusts the maximum limitations under § 415 to reﬂect annual
cost-of-living increases under § 415(d), other than an amendment that adds an automatic
cost-of-living adjustment provision to the plan; and
(c) An amendment solely to include language pursuant to § 403(c)(2) of Title I of the
Employee Retirement Income Security Act of 1974 (ERISA) concerning the reversion of
employer contributions made as a result of mistake of fact.
(4) This section applies to determination letter requests with respect to plans that combine an
ESOP (as deﬁned in § 4975(e)(7) of the Code) with retiree medical beneﬁt features described
in § 401(h) (HSOPs).
(a) In general, determination letters will not be issued with respect to plans that combine an
ESOP with an HSOP with respect to:
(i) whether the requirements of § 4975(e)(7) are satisﬁed;
(ii) whether the requirements of § 401(h) are satisﬁed; or
(iii) whether the combination of an ESOP with an HSOP in a plan adversely affects its
qualiﬁcation under § 401(a).
(b) A plan is considered to combine an ESOP with an HSOP if it contains ESOP provisions and
§ 401(h) provisions.
(c) However, an arrangement will not be considered covered by section 3.02(4) of this
revenue procedure if, under the provisions of the plan, the following conditions are satisﬁed:
(i) No individual accounts are maintained in the § 401(h) account (except as required by
§ 401(h)(6));
(ii) No employer securities are held in the § 401(h) account;
(iii) The § 401(h) account does not contain the proceeds (directly or otherwise) of an
exempt loan as deﬁned in § 54.4975–7(b)(1)(iii) of the Pension Excise Tax Regulations; and
(iv) The amount of actual contributions to provide § 401(h) beneﬁts (when added to actual
contributions for life insurance protection under the plan) does not exceed 25 percent of the sum of:
(1) the amount of cash contributions actually allocated to participants’ accounts in the plan and (2)
the amount of cash contributions used to repay principal with respect to the exempt loan, both
determined on an aggregate basis since the inception of the § 401(h) arrangement.
Submission period for
applications

.03 The Service will accept applications for determination letters for the third Cycle A
submission period from February 1, 2016 to January 31, 2017. The Service’s review will
take into account the qualiﬁcation requirements, and other items identiﬁed on the 2015
Cumulative List in [Notice 2015– 84].

SECTION 4. ON WHAT
ISSUES MUST WRITTEN
GUIDANCE BE
REQUESTED UNDER
DIFFERENT
PROCEDURES?
Tax Exempt and
Government Entities

.01 Other procedures for obtaining rulings, determination letters, opinion letters, etc., on
matters within the jurisdiction of the Commissioner, TE/GE are contained in the following
revenue procedures:
(1) Employee Plans Rulings and Agreements (EP Rulings and Agreements) letter rulings and
determination letters, etc.: See Rev. Proc. 2016 – 4, in this Bulletin.

Sec. 4.01
January 4, 2016

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Bulletin No. 2016 –1

(2) Master & Prototype (M&P) and Volume Submitter (VS) plans under § 401(a): See Rev.
Proc. 2015–36.
(3) Prototype and Volume Submitter plans under § 403(b): See Rev. Proc. 2013–22, 2013–18
I.R.B. 985 as modiﬁed by Rev. Proc. 2014 –28, 2014 –16 I.R.B. 944, and Rev. Proc. 2015–22,
2015–11 I.R.B. 754.
(4) Employee Plans Compliance Resolution System: See Rev. Proc. 2013–12, 2013– 4 I.R.B.
313, and the modiﬁcations made by Rev. Proc. 2015–27, 2015–16 I.R.B. 914 and Rev. Proc.
2015–28, 2015– 6 I.R.B. 920.
Chief Counsel’s revenue
procedure

.02 The procedures for obtaining letter rulings, determination letters, etc., on matters within the
jurisdiction of the Associate Chief Counsel (Tax Exempt and Government Entities), or within the
jurisdiction of other ofﬁces of Chief Counsel are contained in the following revenue procedures:
(1) Chief Counsel’s letter rulings, information letters, etc.: See Rev. Proc. 2016 –1, in this
Bulletin.
(2) Technical Advice Requests: See Rev. Proc. 2016 –2, in this Bulletin.
(3) Chief Counsel’s no-rule positions: See Rev. Proc. 2016 –3, in this Bulletin.

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

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

Scope of determination
letters

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

Design-based safe harbor

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

Bulletin No. 2016 –1

207

Sec. 5.03
January 4, 2016

Governmental plans under
§ 414(d)

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

Church plans under
§ 414(e)

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

Tax treatment of certain
contributions of § 414(h)

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

Other limits on scope of
determination letter

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

Afﬁliated service groups,
leased employees and
partial terminations

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

Publication 794

.09 Publication 794, Favorable Determination Letter, contains other information regarding the
scope of a determination letter, including the requirement that all information submitted with the
application be retained as a condition of reliance. In addition, the speciﬁc terms of each letter may
further deﬁne its scope and the extent to which it may be relied upon. Publication 794 can also
be found at http://www.irs.gov/Forms-&-Pubs.

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

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

Qualiﬁed trusteed plans

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

Sec. 6.02
January 4, 2016

208

Bulletin No. 2016 –1

Qualiﬁed nontrusteed
annuity plans

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

Complete information
required

.04 An applicant requesting a determination letter must ﬁle the material required by this
revenue procedure with Employee Plans Determinations (EP Determinations) at the address in
section 6.15. The ﬁling of the application, when accompanied by all information and documents
required by this revenue procedure, will generally serve to provide the Service with the information required to make the requested determination. However, in making the determination, the
Service may require the submission of additional information. If an application is determined by
the Service to be procedurally or technically deﬁcient, the Service may decline to process the
application and an applicant may be required to resubmit the entire application and pay a new user
fee in order to request a determination letter. See section 6.13 for additional information.
Information submitted to the Service in connection with an application for determination may be
subject to public inspection to the extent provided by § 6104. The applicant must include
Employee Plans Compliance Resolution System documentation for any closing agreement or
compliance statement. This includes Appendix C of Rev. Proc. 2013–12 or Form 14568,
Appendix C Part I- Model VCP Submission Compliance Statement, applicable attachments or
model schedules and copies of corrective amendments issued or applied for during the current
5-year or 6-year remedial amendment cycle, if any, with the determination letter application.

Complete copy of plan and
trust instrument and
applicable amendments
required

.05 In addition to a copy of the plan and trust documents and other material required by the
application, the determination letter application must also include a copy of all signed and dated
interim and other plan amendments adopted or effective during the plan’s current remedial
amendment cycle (other than such amendments adopted on behalf of the employer by the
practitioner that sponsors the employer’s VS plan) even if these amendments are dated earlier
than a previous determination letter issued with respect to the plan. The application must also
include the completed Procedural Requirements Checklist that is set forth in Forms 5300, 5307,
5310 and 5316. If a plan did not receive a prior favorable determination letter, all plan documents
and amendments for the Cumulative List applicable for the plan’s prior submission period must
be submitted.

Submission of reference list
encouraged

In order to facilitate the review of an application for a determination letter, an applicant is
encouraged to submit a completed reference list along with the application for the plan. A
reference list is a checklist that applicants may use to indicate the location in their plan document
of items set forth in the 2015 Cumulative List. A sample reference list will be made available at
www.irs.gov. The inclusion of a completed reference list with the determination letter application
will facilitate the Service’s review of the submission, and is encouraged. Submission of a
reference list is not mandatory.
In order for documents to be properly scanned, documents submitted should not be stapled or
bound and the application form should be prepared using Courier 10 point font.

Section 9 of Rev. Proc.
2016 – 4 applies

.06 Section 9 of Rev. Proc. 2016 – 4 is generally applicable to requests for determination letters
under this revenue procedure.

Separate application for
each single § 414(l) plan

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

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Sec. 6.07
January 4, 2016

Prior letters

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

Plans involving mergers

If the submitted plan is the result of a merger of two or more plans, the applicant must include
a copy of the prior determination letter for all the plans that combined to result in the merged plan.
If a prior determination letter is not available for any such plan involved in a merger, an
explanation must be included with the application, and the applicant must include a copy of the
prior plan document (and adoption agreement, if applicable), the opinion or advisory letter for the
plan, if applicable, and all amendments necessary to verify that each plan was amended timely for
the Cumulative List applicable for the plan’s prior submission period. Additionally, for each plan
involved in a merger the applicant must provide all of the amendments adopted during the plan’s
current remedial amendment cycle.

User fees

.09 The appropriate user fee, if applicable, must be paid according to the procedures of Rev.
Proc. 2016 – 8, in this Bulletin. Form 8717, User Fee for Employee Plan Determination Letter
Request (Rev. August 2014), must accompany each determination letter request. If, however, the
user fee for a determination letter request is paid through www.pay.gov, submit a copy of the
payment conﬁrmation in lieu of Form 8717. If the criteria for the user fee exemption are met in
accordance with Notice 2011– 86, 2011– 45 I.R.B. 698, the certiﬁcation on Form 8717 must be
signed. Stamped signatures are not acceptable. Form 8717 is currently being revised. Until such
revised form is published, taxpayers should continue to use the existing form. However, when
completing the form, taxpayers should refer to the applicable Employee Plans user fees listed in
section 6 of Rev. Proc. 2016 – 8, in this Bulletin.

Interested party
notiﬁcation and comment

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

Contrary authority must
be distinguished

.11 If the application for determination involves an issue where contrary authorities exist,
failure to disclose or distinguish such contrary authorities may result in requests for additional
information or the determination that the application is not complete and cannot be processed.

Employer/employee
relationship

.12 Employee Plans of the Tax Exempt and Government Entities Division of the Service does
not make determinations regarding the existence of an employer-employee relationship as part of
its determination on the qualiﬁcation of a plan, but relies on the applicant’s representations or
assumptions, stated or implicit, regarding the existence of such a relationship. Taxpayers are
reminded, however, that they may ﬁle Form SS– 8, Determination of Worker Status for Purposes
of Federal Employment Taxes and Income Tax Withholding, with the Service to determine the
employment status of the individuals involved prior to ﬁling an application for a determination
letter on the qualiﬁed status of the plan. See section 12.04 of Rev. Proc. 2016 –1.

Incomplete applications

.13 This section provides procedures for processing incomplete applications.
(1) Procedural Completeness. Upon receipt, an application will be reviewed to determine if it is
procedurally complete. In order for an application to be procedurally complete, the application must
include all of the information and documents required by this revenue procedure, including but not
limited to the Form 5300 series application and the Procedural Requirements Checklist.

Sec. 6.13
January 4, 2016

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(2) Procedurally Deﬁcient Applications. The following procedures apply to a procedurally
deﬁcient on-cycle ﬁling of a determination letter application. To retain its status as an on-cycle
ﬁling, a procedurally deﬁcient application must either be perfected in accordance with section
6.13(2)(a) of this revenue procedure or resubmitted in accordance with section 6.13(2)(b). See
section 6.05 of this revenue procedure.
(a) If an application is procedurally deﬁcient, the Service will send the applicant a letter
identifying the missing information. The applicant will have 30 days from the date
of the letter to submit the missing information identiﬁed. If the missing information
is not sent (postmarked) within 30 days of the Service’s letter, the case will be closed.
The application will not be returned and any user fee with respect to the application
will not be refunded.
(b) If a procedurally deﬁcient application is not perfected pursuant to section 6.13(2)(a)
of this revenue procedure, the applicant must resubmit the entire application, including a new user fee (if applicable), by the end of the plan sponsor’s remedial
amendment cycle, unless a later date is speciﬁed in the Service’s letter.
(c) If a procedurally deﬁcient application is not perfected pursuant to section 6.13(2)(a)
of this revenue procedure, and both the response deadline and the postmark date of
a response submitted pursuant to section 6.13(2)(a) occur after the end of the plan
sponsor’s remedial amendment cycle, the Service will send the applicant a ﬁnal
disposition letter indicating that the remedial amendment cycle will not be extended
to allow the plan to be submitted for that cycle. The application will not be returned
and any user fee with respect to the application will not be refunded.
(3) Technically deﬁcient applications. An application that is procedurally complete will
proceed for a technical review. During the course of the review the Service may request the
submission of additional information.
(a) If the Service needs additional information to process the application, the applicant
will be sent an information request with a response date.
(b) If the applicant’s response to such information request is not timely or complete, the
applicant will be given a set period of time in which to respond.
(c) If a complete response is not received by the response deadline set forth in the
Service’s letter referenced in section 6.13(3)(b) of this revenue procedure, the case
will be closed. The application will not be returned and any user fee submitted with
respect to the application will not be refunded.
(i) If either the response deadline or the postmark date of the submitted response
occurs prior to the end of the plan sponsor’s remedial amendment cycle, the
applicant will be given a set period of time to submit a new application, including
a new user fee, if applicable.
(ii) If both the response deadline and the postmark date of a response submitted
pursuant to section 6.13(3)(b) occur after the end of the plan sponsor’s remedial
amendment cycle, the Service will send the applicant a ﬁnal disposition letter
indicating that the remedial amendment cycle will not be extended to allow the
plan to be submitted for that cycle.
(d) An application resubmitted with a new user fee in accordance with section 6.13(3)(c)
of this revenue procedure will be treated as a new application for purposes of this
section 6.13.

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Sec. 6.13
January 4, 2016

Effect of failure to disclose
material fact

Where to ﬁle requests

.14 The Service may determine, based on the application form, the extent of review of the plan
document. A failure to disclose a material fact or misrepresentation of a material fact on the
application adversely affects the reliance that would otherwise be obtained through issuance by
the Service of a favorable determination letter. Similarly, failure to accurately provide any of the
information called for on any form required by this revenue procedure may result in no reliance.
.15 Requests for determination letters are to be addressed to EP Determinations at the following address:
Internal Revenue Service
Attention: EP/EO Determination Letters
Stop 31
P.O. Box 12192
Covington, KY 41012-0192
Requests shipped by Express Mail or a delivery service should be sent to:
Internal Revenue Service
Attention: EP/EO Determination Letters
Stop 31
201 West Rivercenter Blvd.
Attn: Extracting Stop 31
Covington, KY 41011
Determination letter applications will not be accepted via fax.

Submission of related plans

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

Withdrawal of requests

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

Right to status conference

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

How to request status
conference

.19 A request for a status conference with the EP Determinations Manager is to be made in
writing and is to be sent to the specialist assigned to review the application or, if the applicant
does not know who is reviewing the application, to the EP Determinations Manager at the address
in section 6.15.

Sec. 6.19
January 4, 2016

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SECTION 7. WHEN
DETERMINATION
LETTERS ARE ISSUED
Requesting Determination
Letters

.01 This section 7 contains the procedures for requesting determination letters for individually
designed plans in the following circumstances:
(1) Initial qualiﬁcation.
(2) Amendment and restatement subsequent to initial qualiﬁcation.
(3) Plan termination.

Forms

.02 A determination letter request for the items listed in section 7.01 is made by ﬁling the
appropriate form according to the instructions to the form and any prevailing revenue procedures,
notices, and announcements.
(1) Form 5300, Application for Determination for Employee Beneﬁt Plan, including a copy
of the Procedural Requirements Checklist included therein, must be ﬁled to request a determination letter for an individually designed plan, including a collectively bargained plan and an
M&P plans that has made modiﬁcations.
(2) Form 5309, Application for Determination of Employee Stock Ownership Plan, must be
ﬁled as an attachment with a Form 5300, in order to request a determination whether the plan
is an ESOP under § 409 or § 4975(e)(7).
(3) Form 5310, Application for Determination for Terminating Plan, including a copy of the
Procedural Requirements Checklist included therein. (Also see section 12 of this revenue
procedure for additional requirements pertaining to applications for determination upon plan
termination.)
(4) Form 8905, Certiﬁcation of Intent to Adopt a Pre-approved Plan, executed before the end
of the employer’s 5-year remedial amendment cycle as determined under Part III of Rev. Proc.
2007– 44, if applicable.
(5) Form 8717, User Fee for Employee Plan Determination Letter Request (Rev. August
2014) (or the payment conﬁrmation from www.pay.gov as described in section 6.09). (Form
8717 is currently being revised. Until such revised form is published taxpayers should continue
to use the existing form. However, when completing the form, taxpayers should refer to the
applicable Employee Plans user fees listed in section 6 of Rev. Proc. 2016 – 8, in this Bulletin.)
(6) Form 2848, Power of Attorney and Declaration of Representative.
(7) Form 8821, Tax Information Authorization.

Off-Cycle Applications

.03 As provided in Ann. 2015–19, effective as of July 21, 2015, the Service no longer accepts
off-cycle applications for individually designed plans, except with respect to new plans, as
deﬁned in section 14.02(2) of Rev. Proc. 2007– 44, and for terminating plans.

Application must include
copy of plan and
amendments

.04 The plan, all interim and other plan amendments adopted or effective during the plan’s
current remedial amendment cycle must be included in the application package along with a copy
of the restated plan and trust instrument. If the plan sponsor did not receive a favorable

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213

Sec. 7.04
January 4, 2016

determination letter, all plan documents and amendments for the Cumulative List applicable for
the plan’s prior submission period must be submitted. If the plan sponsor relied upon an opinion
or advisory letter with respect to its prior remedial amendment cycle, the plan, adoption agreements
and all applicable amendments for the plan’s prior submission period must also be submitted.
In general, a determination letter may not be relied upon for any period preceding the
beginning of the remedial amendment cycle for which the letter is issued. Thus, for example, if
an application for a determination letter includes a plan amendment that was effective before the
beginning of the plan’s current remedial amendment cycle, the determination letter may not be
relied upon with respect to the effect of the amendment for the period preceding the beginning
of the cycle.
The Service has the discretion to request copies of any amendments during its review of a plan.
Restatements required

.05 Individually designed plans must be restated when they are submitted for determination
letter applications, except for terminating plans.

Controlled group elections
pursuant to Revenue
Procedure 2007– 44

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

§ 414(x) combined plans

.07 The Service will consider § 414(x) in issuing determination letters for individually designed
plans that consist of a deﬁned beneﬁt plan and a qualiﬁed cash or deferred arrangement. A
§ 414(x) plan sponsor must submit two Forms 5300 and two applicable user fees.

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

.01 Rev. Proc. 2015–36 describes the procedures for requesting opinion letters and advisory
letters on M&P and VS plans and the extent to which adopting employers of such plans may rely
on favorable opinion or advisory letters without having to request individual determination letters.
In addition, many pre-approved plan adopters may no longer apply for determination letters, as
described in this revenue procedure.
(1) An adopting employer of an M&P plan (whether standardized or nonstandardized) may
not apply for a determination letter for the plan on Form 5307.
(2) An adopting employer of a VS plan may not apply for a determination letter for the plan
on Form 5307 unless the employer has modiﬁed the terms of the approved plan and the
modiﬁcations are not so extensive as to cause the plan to be treated as an individually designed
plan.
(3) An application for a determination letter for an M&P or VS plan that is ﬁled on Form 5300
is treated as an application for an individually designed plan, requiring the plan to be restated
to take into account the Cumulative List in effect when the application is ﬁled, unless the
employer is ﬁling the application solely for one or more of the following reasons:

Sec. 8.01
January 4, 2016

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Bulletin No. 2016 –1

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

.02 If an employer can rely on a favorable opinion or advisory letter pursuant to Section 19 of
Rev. Proc. 2015–36, as modiﬁed by this revenue procedure, the opinion or advisory letter shall
be equivalent to a favorable determination letter. For example, the favorable opinion or advisory
letter shall be treated as a favorable determination letter for purposes of section 21 of this revenue
procedure, regarding the effect of a determination letter, and section 5.01(4) of Rev. Proc.
2013–12, 2013– 4 I.R.B. 313, as updated, regarding the deﬁnition of “favorable letter” for
purposes of the Employee Plans Compliance Resolution System.

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

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

Determination letter for
adoption of volume
submitter plan

.02 An application ﬁled on Form 5307, Application for Determination for Adopters of Modiﬁed
Volume Submitter Plans, must include any interim plan amendments unless the VS plan authorizes the practitioner to amend on behalf of the adopting employer. The Service may, however,
request evidence of adoption of interim amendments during the course of its review of a particular
plan. With respect to determination letters for adopting employers of VS plans:

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215

Sec. 9.02
January 4, 2016

(1) An application for a determination letter for an employer’s adoption of an approved VS
plan where the employer has made limited modiﬁcations to the language of the approved
specimen plan must be sent to the address provided in section 6.15. For VS plans involved in
plan mergers, see section 6.08 of this procedure.
(2) The application for a determination letter must include the following:
(a) Form 8717, User Fee for Employee Plan Determination Letter Request (Rev. August
2014) (or the payment conﬁrmation from www.pay.gov as described in section 6.09). (Form
8717 is currently being revised. Taxpayers should continue to use the existing form until the
revised form is published. However, when completing the form, taxpayers should refer to the
applicable Employee Plans user fees listed in section 6 of Rev. Proc. 2016 – 8, in this Bulletin);
(b) Form 5307, Application for Determination for Adopters of Modiﬁed Volume Submitter (VS) Plans, including a copy of the Procedural Requirements Checklist included therein;
(c) Form 2848, Power of Attorney and Declaration of Representative, or other written
authorization allowing the VS practitioner to act as a representative of the employer with respect
to the request for a determination letter;
(d) Form 8905, Certiﬁcation of Intent to Adopt a Pre-approved Plan, executed before the
end of the employer’s 5-year remedial amendment cycle as determined under Part III of Rev.
Proc. 2007– 44, if applicable;
(e) A copy of the most recent advisory letter for the practitioner’s VS specimen plan;
(f) A complete copy of the plan and trust instrument and, if applicable, a copy of the
completed adoption agreement;
(g) A written representation (signature optional) made by the VS practitioner which explains
how the plan and trust instrument differ from the approved specimen plan, describing the location,
nature and effect of each deviation from the language of the approved specimen plan;
(h) A copy of the plan’s latest favorable determination letter, if applicable;
(i) Applications ﬁled on Form 5307 for VS plans where the employer has made limited
modiﬁcations to the language of the approved specimen plan that do not authorize the
practitioner to amend on behalf of the adopting employer must include any interim amendments
that were adopted for qualiﬁcation changes on the applicable Cumulative List used in reviewing
and approving the underlying VS plan; and
(j) Any other information or material that may be required by the Service.
(3) Deviations from the language of the approved specimen plan will be evaluated based on
the extent and complexities of the changes. If the changes are determined not to be compatible
with the VS program, the Service will require the applicant to ﬁle Form 5300 and pay the higher
user fee. See also, Rev. Proc. 2007– 44, section 19.
(4) An employer will not be treated as having adopted a VS plan if the employer has signed
or otherwise adopted the plan prior to the date on the VS specimen plan’s advisory letter. In this
case, the determination letter application for the employer’s plan may not be ﬁled on Form 5307
and will not be eligible for a reduced user fee. A determination letter application for a VS plan
must be based on the approved VS specimen plan with any applicable modiﬁcations. See section
19.03 in Rev. Proc. 2015–36.

Sec. 9.02
January 4, 2016

216

Bulletin No. 2016 –1

Timing of determination
letter applications for
adopting employers of preapproved plans

.03 In accordance with Part IV of Rev. Proc. 2007– 44, adopting employers of M&P and VS
plans have a six-year remedial amendment cycle. The deadline for an adopting employer to adopt
the approved M&P or VS plan closes with the two-year window at the end of the plan’s remedial
amendment cycle. An adopting employer of a modiﬁed VS plan who desires to obtain a
determination letter for reliance must submit within the two-year window. Applications may only
be submitted during the two-year window. Applications submitted outside of the two-year
window will be returned.

SECTION 10. MULTIPLE
EMPLOYER PLANS
Scope

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

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

.02 A determination letter applicant for a multiple employer plan can request either (1) a letter
for the plan in the name of the controlling member or (2) a letter for the plan in the name of the
controlling member and a letter for each employer maintaining the plan with respect to whom a
separate Form 5300 is ﬁled.
(1) An applicant requesting a letter for the plan submits one Form 5300 application for the
plan in the name of the controlling member, either including or omitting the design-based safe
harbor questions. The user fee for a single employer plan will apply. An employer maintaining
a multiple employer plan can rely on a favorable determination letter issued for the plan except
with respect to the requirements of §§ 401(a)(4), 401(a)(26), 401(l), 410(b) and 414(s), and, if
the employer maintains or has ever maintained another plan, §§ 415 and 416.
(2) An applicant requesting a letter for the plan and for an employer maintaining the plan must
submit the ﬁling required in (1) above as well as a separate Form 5300 application for each
employer requesting a separate letter. The user fee for the application will be determined under
the user fee schedules for multiple employer plans in section 6.05 of Rev. Proc. 2016 – 8.

Where to ﬁle

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

Determination letter sent
to each employer who ﬁles
Form 5300

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

Addition of employers

.05 An employer may continue to rely on a favorable determination letter after another
employer commences participation in the plan, regardless of whether the ﬁrst employer’s reliance
is based on its own letter or the letter issued for the plan and regardless of whether an application
for a determination letter for the new employer is ﬁled. An application for a determination letter
that takes into account the addition of such other employer should include a completed Form 5300
for the plan in the name of the controlling member on the Form 5300 ﬁled pursuant to section
10.02 above, and a supplemental Form 5300 for each new employer who desires a separate
determination letter. The Service will send the determination letter only to the applicant and the
new employers. However, a new employer that joins a multiple employer plan after the existing
multiple employer plan was timely submitted in Cycle B (the applicable cycle as described in
section 10 of Rev. Proc. 2007– 44), will be subject to the rules under Rev. Proc. 2007– 44.
Effective as of July 21, 2015, the Service no longer accepts off-cycle applications for individually
designed plans, except with respect to new plans, as deﬁned in section 14.02(2) of Rev. Proc.
2007– 44, and for terminating plans.

Bulletin No. 2016 –1

217

Sec. 10.05
January 4, 2016

Pre-approved multiple
employer plans
SECTION 11. RESERVED

.06 A pre-approved plan that is submitted on a Form 5300 because it is a multiple employer plan
will be reviewed on the basis of the Cumulative List that was used to review the underlying plan.
Reserved

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

Forms

.01 This section contains procedures for requesting determination letters involving plan
termination or discontinuance of contributions. This section also contains procedures regarding
required notice of merger, consolidation, or transfer of assets or liabilities.
.02 Required Forms
(1) Form 5310, Application for Determination for Terminating Plan, including a copy of the
Procedural Requirements Checklist included therein, is ﬁled by plans other than multiemployer
plans covered by the insurance program of the Pension Beneﬁt Guaranty Corporation (PBGC).
(2) Form 5300, Application for Determination of Employee Beneﬁt Plan, including a copy of
the Procedural Requirements Checklist included therein, is ﬁled in the case of a multiemployer
plan covered by PBGC insurance.
(3) Form 6088, Distributable Beneﬁts from Employee Pension Beneﬁt Plans, is also
required of a sponsor or plan administrator of a deﬁned beneﬁt plan or an underfunded
deﬁned contribution plan who ﬁles an application for a determination letter regarding plan
termination. For collectively bargained plans, a Form 6088 is required only if the plan
beneﬁts employees who are not collectively bargained employees within the meaning of
§ 1.410(b)– 6(d). A separate Form 6088 is required for each employer employing such
employees. See the instructions for Form 6088 for information required to be submitted
along with the form, including a statement explaining how the present values were
determined.
(4) Form 5310 –A, Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan
Assets or Liabilities – Notice of Qualiﬁed Separate Lines of Business, if required, generally must
be ﬁled not later than 30 days before a merger, consolidation or transfer of assets and liabilities.
The ﬁling of Form 5310 –A will not result in the issuance of a determination letter.
(5) Form 8905, Certiﬁcation of Intent to Adopt a Pre-approved Plan, must be ﬁled to establish
the employer’s eligibility for the 6-year remedial amendment cycle where the employer
executed the form by the end of the employer’s 5-year remedial amendment cycle as determined
under Part III of Rev. Proc. 2007– 44.
(6) Form 8717, User Fee for Employee Plan Determination Letter Request, (Revised August
2014) (or the payment conﬁrmation from www.pay.gov as described in section 6.09). (Form
8717 is currently being revised. Until such revised form is published, taxpayers should continue
to use the existing form. However, when completing the form, taxpayers should refer to the
applicable user fee listed in section 6 of Rev. Proc. 2016 – 8, in this bulletin.)

Sec. 12.02
January 4, 2016

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(7) Form 2848, Power of Attorney and Declaration of Representative, or other written
authorization allowing the VS practitioner to act as a representative of the employer with respect
to the request for a determination letter. If applicable, submit Form 8821, Tax Information
Authorization.
(8) Schedule SB for deﬁned beneﬁt plans.
Supplemental information

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

Compliance with Title IV
of ERISA

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

Termination prior to time
for amending for change in
law

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

Restatement not required
for terminating plan

.06 A terminating plan generally does not have to be restated. However, see section 7.05 and
.05 of this section above.

SECTION 13. GROUP
TRUSTS
Scope

Bulletin No. 2016 –1

.01 This section provides special procedures for requesting a determination letter on the
qualiﬁed status of a group trust under Rev. Rul. 81–100, as clariﬁed and modiﬁed by Rev. Rul.
2004 – 67, Rev. Rul. 2011–1, 2011–2 I.R.B. 251, Notice 2012– 6, 2012–3 I.R.B. 293, and Rev.
Rul. 2014 –24, 2014 –37 I.R.B. 529.

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Sec. 13.01
January 4, 2016

Required information

Forms

.02 A request for a determination letter on the status of a group trust is made by submitting a
Form 5316, Application for Group or Pooled Trust Ruling, demonstrating how the group trust
satisﬁes the criteria listed in Rev. Rul. 2011–1, together with the trust instrument and related
documents. Rev. Rul. 2004 – 67 extends the ability to participate in group trusts to eligible
governmental plans under § 457(b) and clariﬁes the ability of certain individual retirement
accounts under § 408 to participate. Rev. Rul. 2011–1 extends the ability to participate in group
trusts to custodial accounts under § 403(b)(7), retirement income accounts under § 403(b)(9), and
governmental retiree beneﬁt plans under § 401(a)(24). There are two model amendments in Rev.
Rul. 2011–1. Amendment 1 is for a group trust that received a determination letter from the
Service prior to January 10, 2011, that the group trust satisﬁes Rev. Rul. 81–100, but that does
not satisfy the separate account requirement of paragraph (6) of the holding of Rev. Rul. 2011–1.
Amendment 2 is for a group trust that received a determination letter from the Service prior to
January 10, 2011, that the group trust satisﬁes Rev. Rul. 81–100, as modiﬁed by Rev. Rul.
2004 – 67, and that intends to permit custodial accounts under § 403(b)(7), retirement income
accounts under § 403(b)(9), or § 401(a)(24) governmental retirement plans to participate in the
group trust. Rev. Rul. 2014 –24 extends the ability to participate in a group trust to certain
retirement plans qualiﬁed only under the Código de Rentas Internas para un Nuevo Puerto Rico
de la Ley Núm. 1 de 31 de enero de 2011 (“Puerto Rico Code”), and clariﬁes that assets held by
certain separate accounts maintained by insurance companies may be invested in 81–100 group
trusts.
.03 Required Forms
(1) Form 8717, User Fee for Employee Plan Determination Letter Request (Rev. August
2014) (or the payment conﬁrmation from www.pay.gov as described in section 6.09). (Form
8717 is currently being revised. Taxpayers should continue to use the existing form until the
revised form is published. However, when completing the form, taxpayers should refer to the
applicable Employee Plans user fees listed in section 6 of Rev. Proc. 2016 – 8, in this Bulletin);
(2) Form 2848, Power of Attorney and Declaration of Representative, or other written
authorization allowing the VS practitioner to act as a representative of the employer with respect
to the request for a determination letter. If applicable, submit Form 8821, Tax Information
Authorization.
(3) Form 5316, Application for Group or Pooled Trust Ruling, including a copy of the
Procedural Requirements Checklist.

SECTION 14.
AFFILIATED SERVICE
GROUPS; LEASED
EMPLOYEES
Scope

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

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

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

Sec. 14.02
January 4, 2016

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Forms

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

Employer is responsible for
determining status under
§ 414(m) and § 414(n)

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

Pre-approved plans

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

Required information for
§ 414(m) determination

.06 A determination letter will be issued with respect to § 414(m) only if the employer requests
such a determination and the application includes:
(1) A description of the nature of the business of the employer, speciﬁcally whether it is a
service organization or an organization whose principal business is the performance of management functions for another organization, including the reasons therefor;
(2) The identiﬁcation of other members (or possible members) of the afﬁliated service group;
(3) A description of the business of each member (or possible member) of the afﬁliated
service group, describing the type of organization (corporation, partnership, etc.) and indicating
whether the member is a service organization or an organization whose principal business is the
performance of management functions for the other group member(s);
(4) The ownership interests between the employer and the members (or possible members) of
the afﬁliated service group (including ownership interests as described in § 414(m)(2)(B)(ii) or
§ 414(m)(6)(B));
(5) A description of services performed for the employer by the members (or possible
members) of the afﬁliated service group, or vice versa (including the percentage of each
member’s (or possible member’s) gross receipts and service receipts provided by such
services, if available, and data as to whether such services are a signiﬁcant portion of the
member’s business) and whether, as of December 13, 1980, it was not unusual for the
services to be performed by employees of organizations in that service ﬁeld in the United
States;
(6) A description of how the employer and the members (or possible members) of the
afﬁliated service group associate in performing services for other parties;
(7) In the case of a management organization under § 414(m)(5):

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Sec. 14.06
January 4, 2016

(a) A description of the management functions, if any, performed by the employer for the
member(s) (or possible member(s)) of the afﬁliated service group, or received by the employer
from any other members (or possible members) of the group (including data explaining whether
the management functions are performed on a regular and continuous basis) and whether or not
it is unusual for such management functions to be performed by employees of organizations in
the employer’s business ﬁeld in the United States;
(b) If management functions are performed by the employer for the member (or possible
members) of the afﬁliated service group, a description of what part of the employer’s business
constitutes the performance of management functions for the member (or possible member) of
the group (including the percentage of gross receipts derived from management activities as
compared to the gross receipts from other activities); and
(8) A copy of any ruling issued by the Service on whether the employer is an afﬁliated service
group; a copy of any prior determination letter that considered the effect of § 414(m); and, if
known, a copy of any such ruling or determination letter issued to any other member (or possible
member) of the same afﬁliated service group, accompanied by a statement as to whether the
facts upon which the ruling or determination letter was based have changed.
Required information for
§ 414(n) determination

.07 A determination letter will be issued with respect to § 414(n) only if the employer requests
such a determination and the application includes:
(1) A description of the nature of the business of the recipient organization;
(2) A copy of the relevant leasing agreement(s);
(3) A description of the function of all leased employees within the trade or business of the
recipient organization (including data as to whether all leased employees are performing
services on a substantially full-time basis);
(4) A description of facts and circumstances relevant to a determination of whether such
leased employees’ services are performed under primary direction or control by the recipient
organization (including whether the leased employees are required to comply with instructions
of the recipient about when, where, and how to perform the services, whether the services must
be performed by particular persons, whether the leased employees are subject to the supervision
of the recipient, and whether the leased employees must perform services in the order or
sequence set by the recipient); and
(5) If the recipient organization is relying on any qualiﬁed plan(s) maintained by the employee
leasing organization for purposes of qualiﬁcation of the recipient organization’s plan, a description of such plan(s) (including a description of the contributions or beneﬁts provided for all
leased employees which are attributable to services performed for the recipient organization,
plan eligibility, and vesting.)

SECTION 15. WAIVER
OF MINIMUM FUNDING
Applicability of Rev. Proc.
2004 –15

Sec. 15.01
January 4, 2016

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

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funding requirement along with a determination letter request. Both of these requests are
submitted by the applicant to the Ofﬁce of Associate Chief Counsel (Tax Exempt and Government Entities). See section 5.15 of Rev. Proc. 2016 –1, in this Bulletin, and section 3 of Rev. Proc.
2004 –15.
SECTION 16. SECTION
401(h) AND § 420
DETERMINATION
LETTERS
Scope

.01 This section provides procedures for requesting determination letters (i) with respect to
whether the requirements of § 401(h) are satisﬁed in a plan with retiree medical beneﬁt features
and (ii) on plan language that permits, pursuant to § 420, the transfer of assets in a deﬁned beneﬁt
plan to a health beneﬁt account described in § 401(h).

Required information for
§ 401(h) Determination

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

Required information for
§ 420 determination

.03 EP Determinations will consider the qualiﬁed status of certain plan language designed to
comply with § 420 only if the plan sponsor requests such consideration with Form 5300. The
cover letter must speciﬁcally state (i) whether consideration is being requested only with regard
to § 420, or (ii) whether consideration is being requested with regard to § 420 in addition to other
matters under § 401(a). (If consideration of other matters under § 401(a) is being requested, the
application forms and other material required by this revenue procedure must also be submitted.)
The cover letter must speciﬁcally state the location of plan provisions that satisfy each of the
following requirements. Parts I and II of the checklist in the Appendix of this revenue procedure
may be used to identify the location of relevant plan provisions.
(1) The plan must include a health beneﬁts account as described in § 401(h).
(2) The plan must provide that transfers shall be limited to transfers of “excess assets” as
deﬁned in § 420(e)(2).
(3) The plan must provide that only one transfer may be made in a taxable year. However, for
purposes of determining whether the rule in the preceding sentence is met, a plan may provide
that a transfer will not be taken into account if it is a transfer that:
(a) Is made after the close of the taxable year preceding the employer’s ﬁrst taxable year
beginning after December 31, 1990, and before the earlier of (i) the due date (including
extensions) for the ﬁling of the return of tax for such preceding year, or (ii) the date such return
is ﬁled; and
(b) Does not exceed the expenditures of the employer for qualiﬁed current retiree health
liabilities for such preceding taxable year.

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Sec. 16.03
January 4, 2016

(4) The plan must provide that the amount transferred shall not exceed the amount which is
reasonably estimated to be the amount the employer will pay out (whether directly or through
reimbursement) of the health beneﬁt account during the taxable year of the transfer for “qualiﬁed
current retiree health liabilities,” as deﬁned in § 420(e)(1).
(5) The plan must provide that no transfer will be made after December 31, 2025.
(6) The plan must provide that any assets transferred, and any income allocable to such assets,
shall be used only to pay qualiﬁed current retiree health liabilities for the taxable year of transfer.
(7) The plan must provide that any amounts transferred to a health beneﬁts account (and
income attributable to such amounts) which are not used to pay qualiﬁed current retiree health
liabilities shall be transferred back to the deﬁned beneﬁt portion of the plan.
(8) The plan must provide that the amounts paid out of a health beneﬁts account will be
treated as paid ﬁrst out of transferred assets and income attributable to those assets.
(9) The plan must provide that the accrued pension beneﬁts for participants and beneﬁciaries
must become nonforfeitable as if the plan had terminated immediately prior to the transfer (or
in the case of a participant who separated during the 1-year period ending on the date of transfer
immediately before such separation). In the case of a transfer described in § 420(b)(4) that
relates to a prior year, the plan must provide that the accrued beneﬁt of a participant who
separated from service during the taxable year to which such transfer relates will be recomputed
and treated as nonforfeitable immediately before such separation.
(10) The plan must provide that a transfer will be permitted only if each group health plan or
arrangement under which health beneﬁts are provided contains provisions satisfying § 420(c)(3).
The plan must deﬁne “applicable employer cost”, “cost maintenance period”, and “beneﬁt
maintenance period”, as applicable, consistent with § 420(c)(3), as amended. If applicable, the
provisions of the plan must also reﬂect the transition rule in § 535(c)(2) of the Tax Relief
Extension Act of 1999 (TREA ’99). The plan may provide that § 420(c)(3) is satisﬁed separately
with respect to individuals eligible for beneﬁts under Title XVIII of the Social Security Act at
any time during the taxable year and with respect to individuals not so eligible.
(11) The plan must provide that transferred assets cannot be used for key employees (as
deﬁned in § 416(i)(1)).
PART II. INTERESTED PARTY NOTICE AND COMMENT
SECTION 17. WHAT
RIGHTS TO NOTICE
AND COMMENT DO
INTERESTED PARTIES
HAVE?
Rights of interested parties

.01 Persons who qualify as interested parties under § 1.7476 –1(b), have the following rights:
(1) To receive notice, in accordance with section 18 below, that an application for an advance
determination will be ﬁled regarding the qualiﬁcation of plans described in §§ 401, 403(a), 409
and/or 4975(e)(7);

Sec. 17.01
January 4, 2016

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(2) To submit written comments with respect to the qualiﬁcation of such plans to the Service;
(3) To request the Department of Labor to submit a comment to the Service on behalf of the
interested parties; and
(4) To submit written comments to the Service on matters with respect to which the
Department of Labor was requested to comment but declined.
Comments by interested
parties

.02 Comments submitted by interested parties must be received by EP Determinations by the
45th day after the day on which the application for determination is received by EP Determinations. (However, see sections 17.03 and 17.04 for ﬁling deadlines where the Department of Labor
has been requested to comment.) Such comments must be in writing, signed by the interested
parties or by an authorized representative of such parties (as provided in section 9.02(11) of Rev.
Proc. 2016 – 4), addressed to:
Internal Revenue Service
EP Determinations
Attn: Customer Service Manager
P.O. Box 2508
Cincinnati, OH 45202
Comments must contain the following information:
(1) The names of the interested parties making the comments;
(2) The name and taxpayer identiﬁcation number of the applicant for a determination;
(3) The name of the plan, the plan identiﬁcation number, and the name of the plan
administrator;
(4) Whether the parties submitting the comment are:
(a) Employees eligible to participate under the plan,
(b) Employees with accrued beneﬁts under the plan, or former employees with vested
beneﬁts under the plan,
(c) Beneﬁciaries of deceased former employees who are eligible to receive or are
currently receiving beneﬁts under the plan,
(d) Employees not eligible to participate under the plan.
(5) The speciﬁc matters raised by the interested parties on the question of whether the plan
meets the requirements for qualiﬁcation involving §§ 401 and 403(a), and how such matters
relate to the interests of the parties making the comment; and
(6) The address of the interested party submitting the comment (or if a comment is submitted
jointly by more than one party, the name and address of a designated representative) to which
all correspondence, including a notice of the Service’s ﬁnal determination with respect to
qualiﬁcation, should be sent. (The address designated for notice by the Service will also be used

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Sec. 17.02
January 4, 2016

by the Department of Labor in communicating with the parties submitting a request for
comment.) The designated representative may be one of the interested parties submitting the
comment or an authorized representative. If two or more interested parties submit a single
comment and one person is not designated in the comment as the representative for receipt of
correspondence, a notice of determination mailed to any interested party who submitted the
comment shall be notice to all the interested parties who submitted the comment for purposes
of § 7476(b)(5) of the Code.
Requests for DOL to
submit comments

.03 A request to the Department of Labor to submit to EP Determinations a comment pursuant
to section 3001(b)(2) of ERISA must be made in accordance with the following procedures.
(1) The request must be received by the Department of Labor by the 25th day after the day the
application for determination is received by EP Determinations. However, if the parties requesting
the Department to submit a comment wish to preserve the right to comment to EP Determinations
in the event the Department declines to comment, the request must be received by the Department
by the 15th day after the day the application for determination is received by EP Determinations.
(2) The request to the Department of Labor to submit a comment to EP Determinations must:
(a) Be in writing;
(b) Be signed as provided in section 17.02 above;
(c) Contain the names of the interested parties requesting the Department to comment and
the address of the interested party or designated representative to whom all correspondence with
respect to the request should be sent. See also section 17.02(6) above;
(d) Contain the information prescribed in section 17.02(2), (3), (4), (5) and (6) above;
(e) Indicate that the application was or will be submitted to EP Determinations at the
address in section 6.15;
(f) Contain a statement of the speciﬁc matters upon which the Department’s comment is
sought, as well as how such matters relate to the interested parties making the request; and
(g) Be addressed as follows:
Deputy Assistant Secretary
Employee Beneﬁts Security Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Attention: 3001 Comment Request

Right to comment if DOL
declines to comment

Sec. 17.04
January 4, 2016

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

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Conﬁdentiality of
comments

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

Availability of comments

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

When comments are
deemed made

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

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

.01 Notice that an application for an advance determination regarding the qualiﬁcation of a plan
that is described in §§ 401, 403(a), 409 and 4975(e)(7) and that is subject to § 410 is to be made
must be given to all interested parties in the manner prescribed in § 1.7476 –2(c) and in
accordance with the requirements of this section. A notice to interested parties is deemed to be
provided in a manner that satisﬁes § 1.7476 –2(c) if the notice is delivered using an electronic
medium under a system that satisﬁes the requirements of § 1.402(f)–1 Q&A–5.

Time when notice must be
given

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

Content of notice

.03 The notice referred to in section 18.01 shall contain the following information:
(1) A brief description identifying the class or classes of interested parties to whom the notice is
addressed (e.g., all present employees of the employer, all present employees eligible to participate);
(2) The name of the plan, the plan identiﬁcation number, and the name of the plan administrator;
(3) The name and taxpayer identiﬁcation number of the applicant for a determination;
(4) That an application for a determination as to the qualiﬁed status of the plan is to be made
to the Service at the address in section 6.15, and stating whether the application relates to an
initial qualiﬁcation, a plan amendment, termination, or a partial termination;

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Sec. 18.03
January 4, 2016

(5) A description of the class of employees eligible to participate under the plan;
(6) Whether or not the Service has issued a previous determination as to the qualiﬁed status
of the plan;
(7) A statement that any person to whom the notice is addressed is entitled to submit, or
request the Department of Labor to submit, to EP Determinations, a comment on the question
of whether the plan meets the requirements of § 401 or 403(a); that two or more such persons
may join in a single comment or request; and that if such persons request the Department of
Labor to submit a comment and the Department of Labor declines to do so with respect to one
or more matters raised in the request, the persons may still submit a comment to EP Determinations with respect to the matters on which the Department declines to comment. The Pension
Beneﬁt Guaranty Corporation (PBGC) may also submit comments. In every instance where
there is either a ﬁnal adverse termination or a distress termination, the Service formally notiﬁes
the PBGC for comments;
(8) The speciﬁc dates by which a comment to EP Determinations or a request to the
Department of Labor must be received in order to preserve the right of comment (see section 17
above);
(9) The number of interested parties needed in order for the Department of Labor to comment;
and
(10) Except to the extent that the additional informational material required to be made
available by sections 18.05 through 18.09 are included in the notice, a description of a
reasonable procedure whereby such additional informational material will be available to
interested parties (see section 18.04). (Examples of notices setting forth the above information,
in a case in which the additional information required by sections 18.05 through 18.09 will be
made available at places accessible to the interested parties, are set forth in the Exhibit attached
to this revenue procedure.)
Procedures for making
information available to
interested parties

.04 The procedure referred to in section 18.03(10), whereby the additional informational
material required by sections 18.05 through 18.09 will (to the extent not included in the notice)
be made available to interested parties, may consist of making such material available for
inspection and copying by interested parties at a place or places reasonably accessible to such
parties, or supplying such material by using a method of delivery or a combination thereof that
is reasonably calculated to ensure that all interested parties will have access to the materials,
provided such procedure is immediately available to all interested parties, is designed to supply
them with such additional informational material in time for them to pursue their rights within the
time period prescribed, and is available until the earlier of: 1) the ﬁling of a pleading commencing
a declaratory judgment action under § 7476 with respect to the qualiﬁcation of the plan; or 2) the
92nd day after the day the notice of ﬁnal determination is mailed to the applicant. Reasonable
charges to interested parties for copying and/or mailing such additional informational material are
permissible.

Information to be available
to interested parties

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

Sec. 18.05
January 4, 2016

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Special rules if there are
fewer than 26 participants

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

Information described in
§ 6104(a)(1)(D) should not
be included

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

Availability of additional
information to interested
parties

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

Availability of notice to
interested parties

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

Bulletin No. 2016 –1

229

Sec. 18.09
January 4, 2016

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

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

Conferences

Determination letter based
solely on administrative
record

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

Sec. 19.03
January 4, 2016

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(e) In any case in which the Service makes an investigation regarding the facts as
represented or alleged by the applicant in the request for determination or in comments
submitted pursuant to sections 17.01(2), (3), and (4) above, a copy of the ofﬁcial report of such
investigation.
(2) The administrative record shall be closed upon the earlier of the following events:
(a) The date of mailing of a notice of ﬁnal determination by the Service with respect to
the application for determination; or
(b) The ﬁling of a petition with the United States Tax Court seeking a declaratory
judgment with respect to the retirement plan.
(3) Any oral representation or modiﬁcation of the facts as represented or alleged in the
application for determination or in a comment ﬁled by an interested party, which is not reduced
to writing shall not become a part of the administrative record and shall not be taken into account
in the determination of the qualiﬁed status of the retirement plan by EP Determinations or the
Appeals ofﬁce.
Notice of ﬁnal
determination

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

Issuance of the notice of
ﬁnal determination

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

SECTION 20.
EXHAUSTION OF
ADMINISTRATIVE
REMEDIES
In general

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

Steps for exhausting
administrative remedies

.02 In the case of an applicant, with respect to any matter relating to the qualiﬁcation of a plan,
the steps referred to in section 20.01 are:

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231

Sec. 20.02
January 4, 2016

(1) Filing a completed application with EP Determinations pursuant to this revenue procedure;
(2) Complying with the requirements pertaining to notice to interested parties as set forth in
this revenue procedure and § 1.7476 –2 of the regulations; and,
(3) Appealing to the appropriate Appeals ofﬁce pursuant to paragraph 601.201(o)(6) of the
Statement of Procedural Rules, in the event a notice of proposed adverse determination is issued
by EP Determinations.
Applicant’s request for
§ 7805(b) relief

.03 Consideration of relief under § 7805(b) will be included as one of the applicant’s steps in
exhausting administrative remedies only if the applicant requests EP Rulings and Agreements to
seek technical advice from the Ofﬁce of Associate Chief Counsel (Tax Exempt and Government
Entities) on the applicability of such relief. The applicant’s request must be made in writing
according to the procedures for requesting technical advice (see section 14 of Rev. Proc. 2016 –2).

Interested parties

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

Deemed exhaustion of
administrative remedies

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

Service must act on appeal

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

Service must act on
§ 7805(b) request

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

Effect of technical advice
request

.08 The step described in section 20.02(3) will not be available or necessary with respect to any
issue on which technical advice has been obtained from the Ofﬁce of Associate Chief Counsel.

Sec. 20.08
January 4, 2016

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SECTION 21. WHAT
EFFECT WILL AN
EMPLOYEE PLAN
DETERMINATION
LETTER HAVE?
Scope of reliance on
determination letter

.01 (1) A determination letter issued pursuant to this revenue procedure contains only the
opinion of the Service as to the qualiﬁcation of the particular plan involving the provisions of
§§ 401 and 403(a) and the status of a related trust, if any, under § 501(a). Such a determination
letter is based on the facts and demonstrations presented to the Service in connection with the
application for the determination letter and may not be relied upon after a change in material fact
or the effective date of a change in law, except as provided. The Service may determine, based
on the application form, the extent of review of the plan document. Failure to disclose a material
fact or misrepresentation of a material fact adversely affects the reliance that would otherwise be
obtained through the issuance by the Service of a favorable determination letter. Similarly, failure
to accurately provide any of the information called for on any form required by this revenue
procedure may result in no reliance. Applicants are advised to retain copies of all supporting data
submitted with their applications. Failure to do so may limit the scope of reliance.
(2) A determination letter issued to a sponsor of an individually designed plan on or after
January 4, 2016 will not include an expiration date.

Sections 13 and 14 of Rev.
Proc. 2016 – 4 applicable

.02 Except as otherwise provided in this section, determination letters are governed, generally,
by the provisions of sections 13 and 14 of Rev. Proc. 2016 – 4.

Effect of subsequent
publication of revenue
ruling, etc.

.03 The prior qualiﬁcation of a plan as adopted by an employer will not be considered to be
adversely affected by the publication of a revenue ruling, a revenue procedure, or an administrative pronouncement within the meaning of § 1.6661–3(b)(2) of the regulations where:
(1) The plan was the subject of a favorable determination letter and the request for that letter
contained no misstatement or omission of material facts;
(2) The facts subsequently developed are not materially different from the facts on which the
determination letter was based;
(3) There has been no change in the applicable law; and
(4) The employer that established the plan acted in good faith in reliance on the determination
letter.
However, all such plans must be amended to comply with the published guidance for
subsequent years, in accordance with the rules set forth in Rev. Proc. 2007– 44. See, in
particular, Part II of that revenue procedure.

Determination letter does
not apply to taxability
issues

Bulletin No. 2016 –1

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

233

Sec. 21.04
January 4, 2016

SECTION 22. EFFECT
ON OTHER REVENUE
PROCEDURES

Rev. Proc. 2015– 6 is superseded.

SECTION 23.
EFFECTIVE DATE

This revenue procedure is effective February 1, 2016, except that section 21.01(2) relating to
expiration dates in determination letters is effective on January 4, 2016.

SECTION 24.
PAPERWORK
REDUCTION ACT

The collections of information contained in this revenue procedure have been reviewed and
approved by the Ofﬁce of Management and Budget in accordance with the Paperwork Reduction
Act (44 U.S.C. 3507) under control number 1545-1520.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection
of information unless the collection of information displays a valid OMB control number.
The collections of information in this revenue procedure are in sections 6.05, 6.13, 6.16, 6.17,
6.19, 7.04, 13, 14, 15, 16, 19.02, and 21.03(4). This information is required to determine plan
qualiﬁcation. This information will be used to determine whether a plan is entitled to favorable
tax treatment. The collections of information are mandatory. The likely respondents are
businesses or other for-proﬁt institutions.
The estimated total annual reporting and/or recordkeeping burden is 30,827 hours.
The estimated annual burden per respondent/recordkeeper varies from 1 hour to 40 hours,
depending on individual circumstances, with an estimated average of 2.02 hours. The estimated
number of respondents and/or recordkeepers is 15,261.
The estimated annual frequency of responses (used for reporting requirements only) is once
every three years.
Books or records relating to a collection of information must be retained as long as their
contents may become material in the administration of any internal revenue law. Generally tax
returns and tax return information are conﬁdential, as required by 26 U.S.C. 6103.

DRAFTING
INFORMATION

The principal author of this revenue procedure is Maxine Terry of the Ofﬁce of Associate Chief
Counsel (Tax Exempt and Government Entities). For further information regarding this revenue
procedure, contact Maxine Terry at (202)317-4102 (not a toll-free number).

EXHIBIT: SAMPLE
NOTICE TO
INTERESTED PARTIES

The Exhibit set forth below, may be used to satisfy the requirements of section 18 of this
revenue procedure.

Sec. 24
January 4, 2016

234

Bulletin No. 2016 –1

EXHIBIT: SAMPLE NOTICE TO INTERESTED PARTIES
1. Notice To:______________________________[describe class or classes of interested parties]
An application is to be made to the Internal Revenue Service for an advance determination on the qualiﬁcation of the following
employee pension beneﬁt plan:
2.

________________________________________
(name of plan)

________________________________________
(plan number)

________________________________________
(name and address of applicant)

________________________________________
(applicant EIN)

________________________________________
(name and address of plan administrator)

The application will be ﬁled on_______ for an advance determination as to whether the plan meets the qualiﬁcation requirements
of § 401 or § 403(a) of the Internal Revenue Code of 1986, with respect to the plan’s _________________________ [initial
qualiﬁcation, amendment, termination, or partial termination]. The application will be ﬁled with:
Internal Revenue Service
Attention: EP Determination Letters
Stop 31
P.O. Box 12192
Covington, KY 41012-0192

The employees eligible to participate under the plan are:

The Internal Revenue Service ______________ [has/has not] previously issued a determination letter with respect to the
qualiﬁcation of this plan.

RIGHTS OF INTERESTED PARTIES
10. You have the right to submit to EP Determinations, at the above address, either individually or jointly with other interested
parties, your comments as to whether this plan meets the qualiﬁcation requirements of the Internal Revenue Code. Your
comments to EP Determinations may be submitted to:
Internal Revenue Service
EP Determinations
Attn: Customer Service Manager
P.O. Box 2508
Cincinnati, OH 45202
You may instead, individually or jointly with other interested parties, request the Department of Labor to submit, on your
behalf, comments to EP Determinations regarding qualiﬁcation of the plan. If the Department declines to comment on all
or some of the matters you raise, you may, individually, or jointly if your request was made to the Department jointly, submit
your comments on these matters directly to EP Determinations at the Cincinnati address above.
REQUESTS FOR COMMENTS BY THE DEPARTMENT OF LABOR
11. The Department of Labor may not comment on behalf of interested parties unless requested to do so by the lesser of 10
employees or 10 percent of the employees who qualify as interested parties. The number of persons needed for the
Department to comment with respect to this plan is _____________________. If you request the Department to comment,
your request must be in writing and must specify the matters upon which comments are requested, and must also include:
(1) the information contained in items 2 through 5 of this Notice; and
(2) the number of persons needed for the Department to comment.

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235

January 4, 2016

A request to the Department to comment should be addressed as follows:
Deputy Assistant Secretary
Employee Beneﬁts Security Administration
U.S. Department of Labor,
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Attention: 3001 Comment Request
COMMENTS TO THE INTERNAL REVENUE SERVICE
12. Comments submitted by you to EP Determinations must be in writing and received by it by _____________. However, if
there are matters that you request the Department of Labor to comment upon on your behalf, and the Department declines,
you may submit comments on these matters to EP Determinations to be received by it within 15 days from the time the
Department notiﬁes you that it will not comment on a particular matter, or by_______________, whichever is later, but not
after ________________. A request to the Department to comment on your behalf must be received by it by
_________________ if you wish to preserve your right to comment on a matter upon which the Department declines to
comment, or by if you wish to waive that right.
ADDITIONAL INFORMATION
13. Detailed instructions regarding the requirements for notiﬁcation of interested parties may be found in sections 17 and 18 of
Rev. Proc. 2016 – 6. Additional information concerning this application (including, where applicable, an updated copy of the
plan and related trust; the application for determination; any additional documents dealing with the application that have
submitted to the Service; and copies of section 17 of Rev. Proc. 2016 – 6 are available at _______________ during the hours
of _________________ for inspection and copying. (There is a nominal charge for copying and/or mailing.)

January 4, 2016

236

Bulletin No. 2016 –1

APPENDIX
Checklist

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

PART I

CIRCLE

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

Yes No

___

Yes No
Yes No

___
___

Yes No

___

Yes No

___

Yes No

___

Yes No

___

Yes No

___

Yes No

___

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

Yes No

___

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

Yes No

___

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

Yes No

___

5. Does the Plan provide that no transfer will be made after December 31, 2025?

Yes No

___

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

Yes No

___

a. Does the medical beneﬁts account specify the medical beneﬁts that will be
available and contain provisions for determining the amount that will be paid?
b. Does the medical beneﬁts account specify who will beneﬁt?
c. Does the medical beneﬁts account indicate that such beneﬁts, when added to any
life insurance protection in the Plan, will be subordinate to retirement beneﬁts?
(This requirement will not be satisﬁed unless the amount of actual contributions
to provide § 401(h) beneﬁts (when added to actual contributions for life insurance protection under the Plan) does not exceed 25 percent of the total actual
contributions to the Plan (other than contributions to fund past service credits),
determined on an aggregate basis since the inception of the § 401(h) arrangement.)
d. Does the medical beneﬁts account maintain separate accounts with respect to
contributions to key employees (as deﬁned in § 416(i)(1) of the Code) to fund
such beneﬁts?
e. Does the medical beneﬁts account state that amounts contributed must be
reasonable and ascertainable?
f. Does the medical beneﬁts account provide for the impossibility of diversion prior
to satisfaction of liabilities (other than item “7” below)?
g. Does the medical beneﬁts account provide for reversion upon satisfaction of all
liabilities (other than item “7” below)?
h. Does the medical beneﬁts account provide that forfeitures must be applied as
soon as possible to reduce employer contributions to fund the medical beneﬁts?
PART II

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237

SECTION

January 4, 2016

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

Yes No

___

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

Yes No

___

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

Yes No

___

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

Yes No

___

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

Yes No

___

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

Yes No

___

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

Yes No

___

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

Yes No

___

January 4, 2016

238

Bulletin No. 2016 –1

File Type	application/pdf
File Title	IRB 2016-1 (Rev. January 4, 2016)
Subject	Internal Revenue Bulletin
Author	SE:W:CAR:MP:P:SPA
File Modified	2020-03-31
File Created	2020-03-31