Rp 2016-37

26 CFR § 601.201: Rulings and determination letters.(Also Part I, §§ 401; 1.401(b)–1.)

Rev. Proc. 2016 –37
Table of Contents
PART I – OVERVIEW ..................................................................................................................................................................136
SECTION 1. PURPOSE .................................................................................................................................................................136
SECTION 2. BACKGROUND ......................................................................................................................................................137
SECTION 3. SUMMARY OF SIGNIFICANT MODIFICATIONS ............................................................................................139
PART II – INDIVIDUALLY DESIGNED PLANS......................................................................................................................139
SECTION 4. ELIMINATION OF FIVE-YEAR REMEDIAL AMENDMENT CYCLE SYSTEM;
OTHER MODIFICATIONS ....................................................................................................................................139
SECTION 5. EXTENSION OF REMEDIAL AMENDMENT PERIOD FOR INDIVIDUALLY DESIGNED PLANS..........140
SECTION 6. EXTENDED REMEDIAL AMENDMENT PERIOD TRANSITION RULE FOR
INDIVIDUALLY DESIGNED PLANS ..................................................................................................................141
SECTION 7. TERMINATING PLANS.........................................................................................................................................141
SECTION 8. PLAN AMENDMENT DEADLINE .......................................................................................................................141
SECTION 9. REQUIRED AMENDMENTS LIST .......................................................................................................................142
SECTION 10. OPERATIONAL COMPLIANCE LIST ...............................................................................................................142
SECTION 11. EXAMPLES ...........................................................................................................................................................142
SECTION 12. SCOPE OF PLAN REVIEW .................................................................................................................................143
SECTION 13. RELIANCE ON DETERMINATION LETTERS.................................................................................................143
PART III – PRE-APPROVED PLANS .........................................................................................................................................143
SECTION 14. SIX-YEAR REMEDIAL AMENDMENT CYCLE SYSTEM FOR PRE-APPROVED PLANS.......................143
SECTION 15. EXTENSION OF THE REMEDIAL AMENDMENT PERIOD AND DEADLINES
FOR THE ADOPTION OF INTERIM AND DISCRETIONARY PLAN AMENDMENTS FOR
PRE-APPROVED PLANS.....................................................................................................................................144
SECTION 16. SCHEDULES FOR THE SECOND AND THIRD SIX-YEAR REMEDIAL AMENDMENT CYCLES ........145
SECTION 17. CUMULATIVE LISTS OF CHANGES IN PLAN QUALIFICATION REQUIREMENTS;
OPERATIONAL COMPLIANCE LIST ...............................................................................................................146
SECTION 18. EXTENSION OF DEADLINE FOR AN EMPLOYER TO ADOPT A NEWLY
APPROVED PRE-APPROVED DEFINED CONTRIBUTION PLAN AND TO APPLY FOR A
DETERMINATION LETTER (IF APPLICABLE) ..............................................................................................146
SECTION 19. ELIGIBILITY FOR SIX-YEAR REMEDIAL AMENDMENT CYCLE SYSTEM ...........................................147
SECTION 20. EFFECT OF EMPLOYER AMENDMENTS ON SIX-YEAR REMEDIAL AMENDMENT CYCLE ............148
SECTION 21. OFF-CYCLE FILING ............................................................................................................................................149
PART IV – EFFECT ON OTHER DOCUMENTS, EFFECTIVE DATE, DRAFTING INFORMATION ...............................150
SECTION 22. EFFECT ON OTHER DOCUMENTS ..................................................................................................................150
SECTION 23. EFFECTIVE DATE ...............................................................................................................................................150

PART I – OVERVIEW
SECTION 1. PURPOSE
.01 This revenue procedure modifies
the Internal Revenue Service (IRS) determination letter program for qualified plans
to eliminate, as of January 1, 2017, the
five-year remedial amendment cycle system for individually designed plans, currently set forth in Rev. Proc. 2007– 44,
2007–2 C.B. 54. Effective January 1,
2017, a sponsor of an individually designed plan will be permitted to submit a
determination letter application only for
initial plan qualification, for qualification
upon plan termination, and in certain other

July 18, 2016

circumstances, as described in section
4.03(3) of this revenue procedure.
.02 This revenue procedure provides an
extended remedial amendment period under § 401(b) of the Internal Revenue Code
(Code) for individually designed plans.
.03 This revenue procedure describes
and makes clarifying changes to the sixyear remedial amendment cycle system
for pre-approved qualified plans and modifies the six-year remedial amendment cycle system, as applicable, to reflect
changes that have been made to the determination letter program for individually
designed plans. In addition, this revenue
procedure delays until August 1, 2017, the
beginning of the 12-month submission pe-

136

riod for master and prototype (M&P) plan
sponsors and volume submitter (VS) practitioners to submit pre-approved defined
contribution plans for opinion or advisory
letters during the third six-year remedial
amendment cycle.
.04 The extended remedial amendment
period for individually designed plans and
the six-year remedial amendment cycle
system for pre-approved plans are established pursuant to the authority under
§ 401(b) and its underlying regulations to
extend the remedial amendment period
and pursuant to the authority under
§ 7805(b) to establish the effective date of
any rule or regulation.

Bulletin No. 2016 –29

.05 This revenue procedure is effective
January 1, 2017. This revenue procedure
clarifies, modifies, and supersedes Rev.
Proc. 2007– 44, modifies sections 2.07
and 24.03 of Rev. Proc. 2015–36,
2015–27 I.R.B. 20, and modifies sections
I and III of Notice 2015– 84, 2015–52
I.R.B. 880.
SECTION 2. BACKGROUND
.01 Section 401(b) provides a remedial
amendment period during which a plan
may be amended retroactively to comply
with the Code’s qualification requirements. Section 1.401(b)–1 of the Income
Tax Regulations describes the disqualifying provisions that may be amended retroactively and the remedial amendment
period during which retroactive amendments may be adopted. The regulations
also grant the Commissioner the discretion to designate certain plan provisions as
disqualifying provisions and to extend the
remedial amendment period.
.02 Section 7805(b)(1) provides that,
except as otherwise provided, no temporary, proposed, or final regulation relating
to the internal revenue laws shall apply to
any taxable period ending before the earliest of the following dates: (i) the date on
which such regulation is filed with the
Federal Register; (ii) in the case of any
final regulation, the date on which any
proposed or temporary regulation to
which such final regulation relates was
filed with the Federal Register; or (iii) the
date on which any notice substantially describing the expected contents of any temporary, proposed, or final regulation is
issued to the public.
.03 Section 7805(b)(8) provides that
the Secretary may prescribe the extent, if
any, to which any ruling (including any
judicial decision or any administrative determination other than by regulation) relating to the internal revenue laws shall be
applied without retroactive effect.
.04 Section 1.401(b)–1 provides that a
plan that fails to satisfy the requirements of
§ 401(a) solely as a result of a disqualifying
provision defined under § 1.401(b)–1(b)
need not be amended to comply with those
requirements until the last day of the remedial amendment period with respect to the
disqualifying provision, provided the
amendment is made retroactively effective
to the beginning of the remedial amendment

Bulletin No. 2016 –29

period. Under § 1.401(b)–1(b)(1), a disqualifying provision includes a provision of a
new plan, the absence of a provision from a
new plan, or an amendment to an existing
plan that causes the plan to fail to satisfy the
requirements of the Code applicable to
the qualification of the plan as of the date
the plan or amendment is first made effective. Under § 1.401(b)–1(b)(3), a disqualifying provision includes a plan provision
designated, at the Commissioner’s discretion, as a disqualifying provision that either
(i) results in the failure of the plan to satisfy
the qualification requirements of the Code
by reason of a change in those requirements,
or (ii) is integral to a qualification requirement of the Code that has been changed. For
this purpose, § 1.401(b)–1(c)(1) provides
that a disqualifying provision includes the
absence from a plan of a provision required
by or, if applicable, integral to the applicable
change in the qualification requirements of
the Code, if the plan was in effect on the
date the change in those requirements became effective with respect to the plan. Under § 1.401(b)–1(c)(3), the Commissioner
may impose limits and provide additional
rules regarding the amendments that may be
made with respect to disqualifying provisions described in § 1.401(b)–1(b)(3).
.05 For a disqualifying provision of a
new plan described in § 1.401(b)–1(b)(1),
the remedial amendment period begins on
the date the plan is put into effect and, in
the case of a plan maintained by one employer, ends on the later of (i) the due date
(including extensions) for filing the employer’s tax return for the taxable year in
which the plan is put into effect; or (ii) the
last day of the plan year in which the plan
is put into effect. In the case of a new plan
maintained by more than one employer,
the remedial amendment period ends
on the last day of the tenth month following the last day of the plan year that includes the date the plan is put into effect.
.06 For a disqualifying provision that is
an amendment to an existing plan described in § 1.401(b)–1(b)(1), the remedial amendment period begins on the earlier of the date the plan amendment is
adopted or put into effect and, in the case
of a plan maintained by one employer,
ends on the later of (i) the due date (including extensions) for filing the employer’s tax return for the taxable year in
which the amendment is adopted or effec-

137

tive (whichever is later); or (ii) the last
day of the plan year in which the amendment is adopted or effective (whichever is
later). In the case of an amendment to an
existing plan maintained by more than one
employer, the remedial amendment period
ends on the last day of the tenth month
following the last day of the plan year in
which the amendment is adopted or effective (whichever is later).
.07 For a disqualifying provision described in § 1.401(b)–1(b)(3), the remedial amendment period begins on the date
on which the change becomes effective
with respect to the plan or, in the case of
a provision that is integral to a qualification requirement that has been changed,
the first day on which the plan is operated
in accordance with the provision as
amended. In the case of a plan maintained
by one employer, the remedial amendment period for a disqualifying provision
described in § 1.401(b)–1(b)(3) ends on
the later of: (i) the due date (including
extensions) for filing the income tax return for the employer’s taxable year that
includes the date on which the remedial
amendment period begins; or (ii) the last
day of the plan year that includes the date
on which the remedial amendment period
begins. In the case of a plan maintained by
more than one employer the remedial
amendment period ends on the last day of
the tenth month following the last day of
the plan year in which the remedial
amendment period begins.
.08 Section 1.401(b)–1(f) provides that
the Commissioner has discretion to extend
the remedial amendment period.
.09 Rev. Proc. 2007– 44 sets forth rules
and procedures for a system of cyclical
remedial amendment periods under
§ 401(b) for individually designed plans
and for a system of cyclical remedial
amendment periods under § 401(b) for
pre-approved qualified plans, including
the following:
(1) Section 4.01 provides that the IRS
intends to publish annually Cumulative
Lists of Changes in Plan Qualification Requirements (Cumulative Lists). The Cumulative Lists are intended to identify, on
a year-by-year basis, all changes in qualification requirements resulting from
changes in statutes, or from regulations or
other guidance published in the Internal
Revenue Bulletin, that are required to be

July 18, 2016

taken into account in the written plan document that is submitted to the IRS for an
opinion, advisory, or determination letter,
as applicable.
(2) Section 5.04 provides that when
there are statutory or regulatory changes
with respect to plan qualification requirements that will impact provisions of the
written plan document, the adoption of an
interim amendment generally will be required.
(3) Section 9 generally provides that an
individually designed plan’s five-year remedial amendment cycle (Cycle A, B, C,
D, or E) is determined by reference to the
last digit of the employer identification
number (EIN) of the employer that sponsors the plan. However, Section 10.06
provides that, if more than one plan is
maintained by members of a controlled
group under § 414(b) or (c) or an affiliated
service group under § 414(m), the employers may elect that the five-year remedial amendment cycle for all plans maintained by any members of the group (other
than multiemployer plans under § 414(f),
multiple employer plans, governmental
plans under § 414(d), or certain jointly
trusteed single employer collectively bargained plans) will be Cycle A. In general,
the Cycle A election must be made jointly
by all members of the controlled group or
affiliated service group. However, in the
case of a parent-subsidiary controlled
group, this election may be made on behalf of all of the members by the parent.
(4) Section 10.08(1) provides that, in
the case of a Cycle A election under section 10.06 that does not involve a parentsubsidiary controlled group, if a new
member joins the controlled group, that
member must make an election no later
than one year from the date the new member joins the controlled group in order for
other members to maintain the existing
election.
(5) Section 13.02 provides that determination letters issued for individually designed plans will include a statement that
the letter may not be relied on after the
end of the plan’s first five-year remedial
amendment cycle that ends more than 12
months after the application was received,
and will include a specific “expiration
date.”
.10 Notice 2010 –90, 2010 –52 I.R.B.
909, included the 2010 Cumulative List of

July 18, 2016

Changes in Plan Qualification Requirements, which contains qualification requirements for pre-approved defined contribution plans to be used for the second
submission period under the six-year remedial amendment cycle and for certain
single employer individually designed
plans.
.11 Announcement 2012–3, 2012– 4
I.R.B. 335, extended to April 2, 2012, the
deadline to submit on-cycle applications
for opinion and advisory letters for preapproved defined contribution plans for
the plans’ second six-year remedial
amendment cycle.
.12 In Announcement 2014 –16,
2014 –17 I.R.B. 983, the IRS announced it
would issue opinion and advisory letters
for pre-approved defined contribution
plans that were restated for changes in
plan qualification requirements listed in
the 2010 Cumulative List and that were
filed with the IRS during the plans’ second submission period under the remedial
amendment cycle under Rev. Proc. 2007–
44. The announcement provided that employers using these pre-approved plan
documents to restate a plan for the plan
qualification requirements on the 2010
Cumulative List would be required to
adopt the plan document by April 30,
2016, and that the IRS would accept applications for individual determination
letters from employers under the second
six-year remedial amendment cycle for
pre-approved defined contribution plans
starting May 1, 2014, and ending April 30,
2016.
.13 Announcement 2014 – 41, 2014 –52
I.R.B. 979, extended to June 30, 2015, the
deadline for submitting on-cycle applications for opinion and advisory letters for
pre-approved defined benefit plans for the
plans’ second six-year remedial amendment cycle, as previously extended in Announcement 2014 – 4, 2014 –7 I.R.B. 523.
.14 Rev. Proc. 2015–36 provided rules
for issuing opinion and advisory letters for
pre-approved plans. This revenue procedure also extended to October 30, 2015,
the deadline for submitting on-cycle applications for opinion and advisory letters
for pre-approved defined benefit plans for
the plans’ second six-year remedial
amendment cycle.
.15 Announcement 2015–19, 2015–32
I.R.B. 157, announced the elimination of

138

the five-year remedial amendment cycle
system for individually designed plans
and provided that the scope of the determination letter program for individually
designed plans would be limited to determination letter applications for initial plan
qualification, for qualification upon termination, and in certain other circumstances.
This announcement also provided a transition rule with respect to the remedial
amendment period for certain plans currently operating under the five-year remedial amendment cycle system, and announced that the IRS, as of July 21, 2015,
would cease accepting off-cycle determination letter applications (as defined in
section 14 of Rev. Proc. 2007– 44), except
with respect to new and terminating plans.
.16 Notice 2015– 84 included the 2015
Cumulative List of Changes in Plan Qualification Requirements, which contains
qualification requirements for single employer individually designed defined contribution plans and defined benefit plans,
to be used primarily by plan sponsors of
such plans that fall in Cycle A.
.17 Rev. Proc. 2016 – 6, 2016 –1 I.R.B.
200, set forth the annual update of procedures for issuing determination letters on
the qualified status of plans. Rev. Proc.
2016 – 6 provided that, effective as of January 4, 2016, determination letters issued
to sponsors of individually designed plans
would no longer contain an expiration
date.
.18 Notice 2016 – 03, 2016 –3 I.R.B.
278, announced that guidance will be issued to provide that: (i) controlled groups
and affiliated service groups that have previously made a Cycle A election are permitted to submit determination letter applications during the Cycle A submission
period beginning February 1, 2016, and
ending January 31, 2017; (ii) expiration
dates on determination letters issued prior
to January 4, 2016, are no longer operative; and (iii) the period during which
certain employers may, on or after January 1, 2016, establish or adopt a preapproved defined contribution plan and, if
permissible, apply for a determination letter, is extended from April 30, 2016, to
April 30, 2017.

Bulletin No. 2016 –29

SECTION 3. SUMMARY OF
SIGNIFICANT MODIFICATIONS
.01 Consistent with Announcement
2015–19, this revenue procedure eliminates, as of January 1, 2017, the staggered
five-year remedial amendment cycle system for individually designed plans, currently set forth in Rev. Proc. 2007– 44.
This revenue procedure also provides new
rules, as described in paragraphs (1)
through (5) of this section 3.01, for individually designed plans. A sponsor of an
individually designed plan will be permitted to submit a determination letter application for initial plan qualification, for
qualification upon termination, and in
other circumstances. See section 4.03 of
this revenue procedure.
(1) Effective January 1, 2017, the interim amendment requirement set forth in
section 5.04 of Rev. Proc. 2007– 44 will
no longer apply to individually designed
plans. See section 4.02 of this revenue
procedure.
(2) With respect to individually designed plans, for disqualifying provisions
that arise as a result of a change in qualification requirements, the Department of
the Treasury (Treasury) and the IRS intend to publish annually a Required
Amendments List, which will establish
the deadline for a plan to be amended to
comply with requirements described in
section 5.03 of this revenue procedure that
are identified on the list. The deadline
(that is, the end of the remedial amendment period for a change to a qualification
requirement included on a particular Required Amendments List) will be, unless
otherwise provided, the end of the second
calendar year following the year in which
the list is issued. In general, a change to
the qualification requirements will not appear on a Required Amendments List until
guidance with respect to such change (including model amendments, if any) has
been provided in regulations or in other
guidance published in the Internal Revenue Bulletin. The first Required Amendments List generally will apply to changes
in qualification requirements first effective during the 2016 calendar year. See
sections 4, 5, and 9 of this revenue procedure.
(3) This revenue procedure extends the
remedial amendment period for individu-

Bulletin No. 2016 –29

ally designed plans to correct disqualifying provisions (i) that are in new plans, (ii)
that arise as a result of amendments made
to existing plans, and (iii) that arise as a
result of a change in qualification requirements. See section 5 of this revenue procedure.
(4) For individually designed plans, a
transition rule extends the remedial
amendment period for certain disqualifying provisions to December 31, 2017. See
section 6 of this revenue procedure.
(5) The scope of review of an individually designed plan submitted for a determination letter is described in section 12
of this revenue procedure.
(6) The effect of subsequent changes in
law and plan amendments on the reliance
by the sponsor of an individually designed
plan on a prior determination letter is described in section 13 of this revenue procedure.
.02 A description of, and clarifying
changes to, the six-year remedial amendment cycle system for pre-approved plans,
and modifications of the six-year remedial
amendment cycle system to reflect
changes that have been made to the determination letter program for individually
designed plans, are provided in Part III of
this revenue procedure. In addition, the
time to adopt a newly approved preapproved defined contribution plan and to
file for a determination letter for certain
adopters of pre-approved defined contribution plans for the second six-year remedial amendment cycle is extended to April
30, 2017.
.03 The beginning of the 12-month
submission period for M&P sponsors and
VS practitioners to submit pre-approved
defined contribution plans for opinion or
advisory letters during the third six-year
remedial amendment cycle is delayed until August 1, 2017. See section 16 of this
revenue procedure.
.04 To assist sponsors in achieving operational compliance with the Code’s
qualification requirements, the IRS intends to provide annually an Operational
Compliance List that identifies changes in
qualification requirements that are effective during a calendar year. See sections
10 and 17.05 of this revenue procedure.

139

PART II – INDIVIDUALLY
DESIGNED PLANS
SECTION 4. ELIMINATION OF
FIVE-YEAR REMEDIAL
AMENDMENT CYCLE SYSTEM;
OTHER MODIFICATIONS
.01 Effective January 1, 2017, the staggered five-year remedial amendment cycle system for individually designed plans
is eliminated. As of that date, the IRS will
no longer accept determination letter applications based on the five-year remedial
amendment cycle system. However, sponsors of Cycle A plans (that is, generally,
plan sponsors with employer identification numbers ending in 1 or 6) will continue to be permitted to submit determination letter applications during the period
beginning February 1, 2016, and ending
January 31, 2017. For this purpose, controlled groups and affiliated service
groups that maintain more than one plan
are permitted to submit determination letter applications during the Cycle A submission period beginning February 1,
2016, and ending January 31, 2017, provided that a prior Cycle A election with
respect to the controlled group or affiliated service group had been made by January 31, 2012 (the last day of the previous
Cycle A submission period) and any new
member of the controlled group or affiliated service group made a timely election
to join the group in accordance with section 10.08(1) of Rev. Proc. 2007– 44, if
applicable. See section 10.06 of Rev.
Proc. 2007– 44.
.02 Effective January 1, 2017, plan
sponsors of individually designed plans
will no longer be required to adopt interim
amendments, as required by section 5.04
of Rev. Proc. 2007– 44. This change applies with respect to interim amendments
that would have had an adoption deadline
on or after January 1, 2017, had the interim amendment requirement remained
in effect. The interim amendment requirement continues to apply to individually
designed plans with respect to interim
amendments with an adoption deadline
prior to January 1, 2017.
.03 Effective January 1, 2017, a sponsor of an individually designed plan will
be permitted to submit a determination
letter application for initial plan qualification, for qualification upon termination,

July 18, 2016

and in other circumstances, as described
in section 4.03(1), (2), and (3) of this
revenue procedure.
(1) Initial plan qualification. An employer may submit a plan for initial plan
qualification on a Form 5300 (Application
for Determination for Employee Benefit
Plan) as long as a favorable determination
letter has never been issued with respect
to the plan. Thus, for example, an employer that maintains a plan for which a
determination letter has been issued as a
result of filing a Form 5300 or Form 5307
(Application for Determination for Adopters of Modified Volume Submitter Plans)
is not eligible to submit that plan for a
determination letter for initial qualification.
(2) Qualification upon plan termination. An application is filed in connection
with plan termination only 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 taken. However, in
no event may the application be filed later
than 12 months from the date of distribution of substantially all plan assets in connection with the plan termination.
(3) Other circumstances. Consideration will be given annually to whether
determination letter applications will be
accepted for individually designed plans
in specified circumstances other than for
initial qualification and qualification upon
plan termination. Circumstances that will
be considered when evaluating whether to
accept determination letter applications
for certain amended plans or types of
amendments in plans in certain future
years, include, for example, significant
law changes, new approaches to plan design, and the inability of certain types of
plans to convert to pre-approved (that is,
M&P and VS) plan documents. In addition, the IRS’s current case load and resources available to process determination
letter applications will be significant factors in deciding if and when to consider
certain amended plans or types of amendments in plans under the determination
letter program. Additional situations in
which plan sponsors will be permitted to
request determination letters will be an-

nounced in guidance published in the Internal Revenue Bulletin. Treasury and the
IRS intend to request, on a periodic basis,
comments on the additional situations in
which the submission of a determination
letter application may be appropriate.
Based on an analysis of the factors listed
in this section 4.03(3), including the IRS’s
current resources and case load, the only
determination letter applications for individually designed plans that will be accepted during calendar year 2017 (other
than for Cycle A plans as described in
section 4.01) are applications for initial
plan qualification and qualification upon
plan termination.
SECTION 5. EXTENSION OF
REMEDIAL AMENDMENT PERIOD
FOR INDIVIDUALLY DESIGNED
PLANS
.01 The provisions of this section 5
apply to disqualifying provisions (as defined in section 5.02 and 5.03 of this revenue procedure) that are first effective on
or after January 1, 2016.
.02 Pursuant to § 1.401(b)–1(b)(1), a
disqualifying provision includes a provision of a new plan, the absence of a provision from a new plan, or an amendment
to an existing plan that causes the plan to
fail to satisfy the requirements of the Code
applicable to the qualification of the plan
as of the date the plan or amendment is
first made effective. In addition, pursuant
to § 1.401(b)–1(b)(3), a disqualifying provision includes a plan provision that has
been designated by the Commissioner, in
section 5.03 of this revenue procedure or
subsequent guidance published in the Internal Revenue Bulletin, as a disqualifying
provision by reason of a change in those
requirements.
.03 Pursuant to § 1.401(b)–1(b)(3), the
IRS designates a plan provision as a disqualifying provision if it:
(1) results in the failure of the plan to
satisfy the qualification requirements of
the Code by reason of a change in those
requirements that is effective after December 31, 2001;1 or
(2) is integral to such disqualifying
provision.

.04 A change in qualification requirements includes a statutory change or a
change in the requirements provided in
regulations or other guidance published in
the Internal Revenue Bulletin. In addition,
a disqualifying provision, as described in
section 5.03 of this revenue procedure,
includes the absence from a plan of a
provision required by (or, if applicable,
integral to) the change in the qualification
requirements of the Code.
.05 Except as otherwise provided by
statute, or regulations or other guidance
published in the Internal Revenue Bulletin, the remedial amendment period that
would otherwise apply under § 1.401(b)–1
for the disqualifying provisions described
in this section 5.05 is extended as follows
for plans that are not governmental plans
within the meaning of § 414(d):
(1) New plan. The remedial amendment period for a disqualifying provision
with respect to a provision of a new plan
or the absence of a provision from a new
plan is extended to the later of (i) the 15th
day of the 10th calendar month after the
end of the plan’s initial plan year or (ii)
the “modified § 401(b) expiration date.”
The modified § 401(b) expiration date is
defined in this section 5.05(1)(a) and (b):
(a) The modified § 401(b) expiration
date for a plan that is not maintained by a
tax exempt employer is the last day of the
remedial amendment period determined
under § 1.401(b)–1(d)(2), applied as
though the employer has an extension to
file its income tax return (or partnership
return of income).
(b) The modified § 401(b) expiration
date for a plan maintained by a tax exempt
employer is the last day of the remedial
amendment period determined under
§ 1.401(b)–1(d)(2) applied as though the
due date (including extensions) for filing
the income tax return for the employer’s
taxable year is the date determined under
the following rules. The due date for filing
the employer’s tax return in the case of a
tax exempt employer that files Form
990 –T (or Form 990 or Form 990 –EZ if
no Form 990 –T is filed) is the later of (i)
the 15th day of the 10th month after the
end of the employer’s tax year (treating
the calendar year as the tax year if the

1
As provided in section 5.01 of Rev. Proc. 2007– 44, December 31, 2001, was the date after which all changes in qualification requirements were designated as disqualifying provisions by
the Commissioner in order for those changes to be eligible for the remedial amendment period available with respect to disqualifying provisions.

July 18, 2016

140

Bulletin No. 2016 –29

employer does not have a tax year) or (ii)
the due date for filing the Form 990 series
(plus extensions). For the purpose of this
section 5.05(1), an employer is treated as
having obtained an extension of time for
filing the Form 990 series. The due date for
filing the employer’s tax return in the case
of a tax exempt employer that is not required to file a Form 990 series return is the
15th day of the 10th month after the end of
the employer’s tax year (treating the calendar year as the tax year if the employer does
not have a tax year).
(2) Amendment to existing plan. The
remedial amendment period for a disqualifying provision with respect to an amendment to an existing plan (other than an
amendment described in section 5.05(3) of
this revenue procedure) is extended to the
end of the second calendar year following
the calendar year in which the amendment is
adopted or effective, whichever is later.
(3) Change in qualification requirements. The remedial amendment period
for a disqualifying provision with respect
to a change in qualification requirements
(as described in section 5.04 of this revenue procedure) is extended to the end of
the second calendar year that begins after
the issuance of the Required Amendments
List (described in section 9 of this revenue
procedure) in which the change in qualification requirements appears.
.06 Except as otherwise provided by
statute, or by regulations or other guidance published in the Internal Revenue
Bulletin, the remedial amendment period
that would otherwise apply under
§ 1.401(b)–1 for the disqualifying provisions described in this section 5.06 is extended as follows for plans that are governmental plans within the meaning of
§ 414(d):
(1) New plan. The remedial amendment period for a disqualifying provision
with respect to a provision of a new governmental plan or the absence of a provision from a new governmental plan is
extended to the later of: (i) the date determined in section 5.05(1) of this revenue
procedure; or (ii) 90 days after the close of
the second regular legislative session of
the legislative body with the authority to
amend the plan that begins after the end of
the plan’s initial plan year.
(2) Amendment to existing plan. The
remedial amendment period for a disqual-

Bulletin No. 2016 –29

ifying provision with respect to an amendment to an existing governmental plan
(other than an amendment described in
paragraph (3) of this section 5.06) is extended to the later of: (i) the date determined in section 5.05(2) of this revenue
procedure; and (ii) 90 days after the close
of the third regular legislative session of
the legislative body with the authority to
amend the plan that begins after the calendar year in which the amendment is
adopted or effective (whichever is later).
(3) Change in qualification requirements. The remedial amendment period
for a disqualifying provision in a governmental plan that arises as a result of a
change in qualification requirements (as
described in section 5.03 of this revenue
procedure) is extended to the later of: (i)
the date determined in section 5.05(3) of
this revenue procedure; or (ii) 90 days
after the close of the third regular legislative session of the legislative body with
the authority to amend the plan that begins
on or after the date of issuance of the
Required Amendments List in which the
change in qualification requirements appears.
.07 This revenue procedure does not
provide relief from the requirements of
§ 411(d)(6) for any plan amendments, including plan amendments adopted as a
result of changes to the qualification requirements. Except to the extent permitted
under § 411(d)(6) and the regulations
thereunder, or under a statutory provision,
§ 411(d)(6) prohibits a plan amendment
that decreases a participant’s accrued benefits or that has the effect of eliminating or
reducing an early retirement benefit or
retirement-type subsidy, or eliminating an
optional form of benefit, with respect to
benefits attributable to service before the
amendment. However, an amendment that
eliminates or decreases benefits that have
not yet accrued does not violate
§ 411(d)(6), provided the amendment is
adopted and effective before the benefits
accrue.

§ 401(b) (including provisions designated
in Rev. Proc. 2007– 44 as disqualifying
provisions) to the end of a plan’s applicable remedial amendment cycle. As a result
of the elimination of the five-year remedial amendment cycle system for individually designed plans, the extended remedial amendment period provided in
section 5.03 of Rev. Proc. 2007– 44 will
expire December 31, 2016. However, pursuant to this revenue procedure, the remedial amendment period is extended to December 31, 2017, for disqualifying
provisions for which, as of January 1,
2017, the remedial amendment period under section 5.03 of Rev. Proc. 2007– 44
has not expired. The extension provided in
this section 6 does not apply to disqualifying provisions set forth on the 2016
Required Amendments List. See section
5.05(3) of this revenue procedure, which
provides that the remedial amendment period for a disqualifying provision set forth
on a Required Amendments List is extended to the end of the second calendar
year that begins after the issuance of the
Required Amendments List in which such
provision appears. See also section 9 of
this revenue procedure for a description of
the Required Amendments List.

SECTION 6. EXTENDED
REMEDIAL AMENDMENT PERIOD
TRANSITION RULE FOR
INDIVIDUALLY DESIGNED PLANS

SECTION 8. PLAN AMENDMENT
DEADLINE

Section 5.03 of Rev. Proc. 2007– 44
extends the remedial amendment period
for certain disqualifying provisions under

141

SECTION 7. TERMINATING
PLANS
Notwithstanding sections 5 and 6 of
this revenue procedure, the termination of
a plan ends the plan’s remedial amendment period and, thus, generally will
shorten the remedial amendment period
for the plan. Accordingly, any retroactive
remedial plan amendments or other required plan amendments for a terminating
plan (that is, plan amendments required to
be adopted to reflect qualification requirements that apply as of the date of termination) must be adopted in connection
with the plan termination regardless of
whether such requirements are included
on a Required Amendments List.

.01 With respect to a disqualifying provision described in section 5 of this revenue procedure, except as otherwise provided by statute, or in regulations or other
guidance published in the Internal Reve-

July 18, 2016

nue Bulletin, the plan amendment deadline is the date on which the remedial
amendment period with respect to such
disqualifying provision expires. See sections 5.05 and 5.06 of this revenue procedure for the determination of the applicable remedial amendment period.
.02 With respect to a discretionary
amendment (that is, an amendment that is
not made with respect to a disqualifying
provision), except as otherwise provided
by statute, or in regulations or other guidance published in the Internal Revenue
Bulletin, the plan amendment deadline is
the date described in paragraph (1) or (2)
of this section 8.02, as applicable.
(1) In the case of a discretionary
amendment to a plan other than a governmental plan within the meaning of
§ 414(d), the plan amendment deadline is
the end of the plan year in which the plan
amendment is operationally put into effect. An amendment is operationally put
into effect when the plan is administered
in a manner consistent with the intended
plan amendment (rather than existing plan
terms). For example, the deadline for
adopting a discretionary amendment with
respect to a calendar year plan that increases participants’ accrued benefits and
is operationally put into effect during
2018 is December 31, 2018. As another
example, the deadline for adopting a discretionary amendment with respect to a
calendar year plan that is operationally put
into effect during 2018 to provide a new
right or benefit as of January 1, 2011, with
respect to participants with same-sex
spouses is December 31, 2018. See Notice
2015– 86, 2015–52 I.R.B. 887, Q&A–5.
(2) In the case of a discretionary
amendment to a governmental plan within
the meaning of § 414(d), the plan amendment deadline is the later of: (i) the end of
the plan year in which the plan amendment
is operationally put into effect; or (ii) 90
days after the close of the second regular
legislative session of the legislative body
with the authority to amend the plan that
begins on or after the date the plan amendment is operationally put into effect.
SECTION 9. REQUIRED
AMENDMENTS LIST
.01 Treasury and the IRS intend to publish annually a Required Amendments
List that generally applies to changes in

July 18, 2016

qualification requirements that become effective on or after January 1, 2016. The
Required Amendments List establishes
the date that the remedial amendment period expires for changes in qualification
requirements contained on the list, as described in section 5.03 of this revenue
procedure. See also section 12 of this revenue procedure, which describes the scope
of review by the IRS of a plan submitted
for a determination letter.
.02 In general, an item will be included
on a Required Amendments List after
guidance with respect to such item (including any model amendment) has been
provided in regulations or in other guidance published in the Internal Revenue
Bulletin. However, in the discretion of the
IRS, an item may be included on a Required Amendments List in other circumstances, such as when a statutory change
is enacted and it is anticipated that no
guidance will be issued.
SECTION 10. OPERATIONAL
COMPLIANCE LIST
The remedial amendment period permits a plan to be amended retroactively to
comply with a change in plan qualification
requirements; however, a plan must be operated in compliance with a change in qualification requirements from the effective
date of the change. To assist plan sponsors
in achieving operational compliance, the
IRS intends to provide annually an Operational Compliance List to identify changes
in qualification requirements that are effective during a calendar year. In order to be
qualified, however, a plan must comply operationally with each relevant qualification
requirement, even if the requirement is not
included on an Operational Compliance List.
SECTION 11. EXAMPLES
Examples 1 through 7 illustrate the extended remedial amendment period for
new plans, amendments made to existing
plans that are not made as a result of
changes in qualification requirements, and
amendments to existing plans that are
made as a result of changes in qualification requirements. In each of these examples, assume that the plan is an individually designed plan that is intended to be
qualified under § 401(a) and that the plan

142

amendments meet the requirements of
§ 411(d)(6).
Example 1: Remedial amendment period for a
new plan. Employer A, which is not a tax exempt
employer, adopts a new individually designed plan,
Plan M, on July 1, 2017. Plan M is effective January
1, 2017. Plan M’s plan year and Employer A’s tax
year are the calendar year. Plan M contains a provision that does not satisfy the qualification requirements (a disqualifying provision under § 401(b)).
Employer A discovers the disqualifying provision in
February 2018. Pursuant to section 5.05(1) of this
revenue procedure, the remedial amendment period
for this disqualifying provision is extended to the
later of (i) October 15, 2018 (the 15th day of the 10th
calendar month after the end of the plan’s initial plan
year), or (ii) the modified § 401(b) expiration date.
The modified § 401(b) expiration date is the later of
September 15, 2018 (the due date for filing Employer A’s tax return plus extensions) and the last
day of the plan year in which the plan is put into
effect (December 31, 2017). Thus, Employer A must
correct the disqualifying provision in Plan M by
October 15, 2018, retroactively effective beginning
January 1, 2017, in order for Plan M to be qualified,
and must correct Plan M’s operation to the extent
necessary to reflect the corrective amendment.
Example 2: Determination letter application filed
for a new plan. The facts are the same as in Example 1,
except that, instead of Employer A identifying the
disqualifying provision, Employer A files a determination letter application and the IRS discovers the error. If
Employer A submits Plan M for a determination letter
by October 15, 2018, then, pursuant to § 1.401(b)–
1(e)(3), Employer A would have until 91 days after the
date a favorable determination letter is issued with
respect to Plan M to adopt an amendment that corrects
the disqualifying provision retroactively effective beginning January 1, 2017 (the effective date of Plan M).
To maintain plan qualification, Employer A must correct Plan M’s operation to the extent necessary to
reflect the corrective amendment.
Example 3: Remedial amendment period for
amendment to an existing plan. Employer B maintains Plan N, an individually designed plan. In 2014,
the IRS issued a determination letter for Plan N. On
January 1, 2018, Employer B adopts and makes effective an amendment to Plan N’s vesting schedule. This
amendment causes Plan N to fail to satisfy the requirements of the Code. Pursuant to section 5.05(2) of this
revenue procedure, a remedial amendment to correct
this disqualifying provision generally must be adopted
by December 31, 2020, the end of the second calendar
year following the calendar year in which the amendment is adopted or effective (whichever is later). The
remedial amendment must be retroactively effective
beginning January 1, 2018, the date the earlier plan
amendment was effective, in order for Plan N to be
qualified. Also, to maintain plan qualification, Employer B must correct Plan N’s operation to the extent
necessary to reflect the corrective amendment.
Example 4: Remedial amendment period for a
change in qualification requirements. Employer C
maintains Plan O, an individually designed plan. In
July 2016, guidance is published in the Internal
Revenue Bulletin that would require an amendment
to Employer C’s plan in order to retain the plan’s
qualification. The guidance is effective in 2017. The

Bulletin No. 2016 –29

guidance is included on the 2017 Required Amendments List. Pursuant to section 5.05(3) of this revenue procedure, the remedial amendment period for
items identified on the 2017 Required Amendments
List expires December 31, 2019, the end of the
second calendar year that begins after the issuance of
the Required Amendments List in which the guidance appears; therefore, the expiration of the remedial amendment period for the disqualifying provision in Plan O is December 31, 2019. The plan
amendment deadline for the change in qualification
requirements is also December 31, 2019, pursuant to
section 8.01 of this revenue procedure.
Example 5: Correction of amendment made due
to a change in qualification requirements. Employer
D maintains Plan P, an individually designed plan. In
2015, the IRS issued a determination letter for Plan
P. On April 1, 2018, Employer D amends Plan P
based on a change in a qualification requirement that
was identified on the 2017 Required Amendments
List. This amendment was effective January 1, 2017.
Pursuant to section 5.05(3) of this revenue procedure, the remedial amendment period for the change
in qualification requirements expires December 31,
2019, the end of the second calendar year that begins
after the issuance of the Required Amendments List
in which the change in qualification requirements
was identified. In October 2019, Employer D discovers the amendment does not satisfy the qualification
requirements of the Code; therefore, Plan P still
contains a disqualifying provision. To maintain plan
qualification, Employer D must correct the disqualifying provision in Plan P by amending the plan not
later than December 31, 2019, retroactively effective
beginning January 1, 2017, and must correct Plan P’s
operation to the extent necessary to reflect the corrective amendment.
Example 6: Governmental Plans - remedial
amendment period for a change in qualification requirements. State E maintains Plan Q, a governmental plan within the meaning of § 414(d). In September 2015, the IRS issued a determination letter for
Plan Q. The legislature of State E annually convenes
January 4 and adjourns March 31. On March 1,
2020, the legislature of State E amends Plan Q based
on a change in a qualification requirement that was
identified on the 2018 Required Amendments List.
This amendment is effective January 1, 2020. In January 2021, State E discovers the amendment created a
disqualifying provision. Generally, pursuant to section
5.06(3) of this revenue procedure, the legislature of
State E has until the later of (i) December 31, 2020
(which is the end of the second calendar year that
begins after the issuance of the Required Amendments
List in which the change in qualification requirements
was identified), or (ii) June 29, 2021 (which is 90 days
after the close of the third regular legislative session of
the legislative body of State E that began on or after the
date of the issuance of the 2018 Required Amendments
List) to amend Plan Q, retroactively effective beginning January 1, 2020, to correct the disqualifying provision in order for Plan Q to be qualified. To maintain
plan qualification, State E must also correct Plan Q’s
operation to the extent necessary to reflect the corrective amendment.
Example 7: Extended remedial amendment period transition rule. Employer F maintains Plan R,
an individually designed plan. Plan R’s plan year is

Bulletin No. 2016 –29

the calendar year. Under Rev. Proc. 2007– 44, section 9.03, Plan R’s cycle is Cycle B. Employer F
submitted Plan R for a determination letter during
the Cycle B submission period for the second fiveyear remedial amendment cycle (February 1, 2012 –
January 31, 2013) and received a determination letter
in July, 2014. In October 2014, Employer F adopted
a timely interim amendment, in accordance with
section 5.04 and 5.05 of Rev. Proc. 2007– 44, for a
change in qualification requirements identified on
the 2013 Cumulative List of Changes (Notice 2013–
84, 2013–52 I.R.B. 82). Because Employer F adopted a timely amendment for the change in qualification requirements, the remedial amendment
period for the change was extended to the end of the
third Cycle B remedial amendment cycle (January
31, 2018) pursuant to section 5.03 of Rev. Proc.
2007– 44.
On January 1, 2017, the five-year remedial
amendment cycle system will be eliminated. As a
result, the remedial amendment period under Rev.
Proc. 2007– 44 for the change in qualification requirements for Plan R would not extend beyond
December 31, 2016. However, pursuant to the extended remedial amendment period transition rule in
section 6 of this revenue procedure, the expiration of
the remedial amendment period is extended to December 31, 2017, with respect to any disqualifying
provision for which, as of January 1, 2017, the
remedial amendment period (as extended by Rev.
Proc. 2007– 44) has not expired. Thus, Plan R’s
extended remedial amendment period for the change
in qualification requirements identified on the 2013
Cumulative List will expire December 31, 2017.

SECTION 12. SCOPE OF PLAN
REVIEW
With respect to individually designed
plans for which a determination letter application is submitted, the IRS review will
be based on the Required Amendments
List that was issued during the second
calendar year preceding the submission of
the determination letter application. For
example, with respect to a plan submitted
for a determination letter during the calendar year beginning January 1, 2020, the
IRS’s review will be based on the Required Amendments List that was issued
in 2018, regardless of the fact that the plan
otherwise would not be required to be
amended for items on the 2018 Required
Amendments List until December 31,
2020. The review will also take into account all previously issued Required
Amendments Lists (and Cumulative Lists
issued prior to 2016). Terminating plans
will be reviewed for amendments required
to be adopted in connection with plan
termination (see section 7 of this revenue
procedure). Plans submitted for initial
qualification during the 2017 calendar

143

year will be reviewed based on the 2015
Cumulative List (Notice 2015– 84). With
the exception of a terminating plan, an
individually designed plan must be restated to incorporate all previously adopted amendments into the plan document
when a determination letter application is
submitted.
SECTION 13. RELIANCE ON
DETERMINATION LETTERS
.01 Rev. Proc. 2016 – 6 provides that,
effective as of January 4, 2016, determination letters issued to individually designed plans will no longer contain an
expiration date.
.02 Under this revenue procedure, expiration dates included in determination
letters issued prior to January 4, 2016, are
no longer operative.
.03 In general, a plan sponsor that
maintains a qualified plan for which a
favorable determination letter has been issued and that is otherwise entitled to rely
on the determination letter may not continue to rely on the determination letter
with respect to a plan provision that is
subsequently amended or that is subsequently affected by a change in law. However, a plan sponsor may continue to rely
on a determination letter with respect to
plan provisions that are not amended or
affected by a change in law. Reliance on
determination letters is discussed in section 13 of Rev. Proc. 2016 – 4, 2016 –1
I.R.B. 142 (updated annually) and section
21.01 of Rev. Proc. 2016 – 6, 2016 –1
I.R.B. 200 (updated annually).
PART III – PRE-APPROVED PLANS
SECTION 14. SIX-YEAR
REMEDIAL AMENDMENT CYCLE
SYSTEM FOR PRE-APPROVED
PLANS
.01 Under this revenue procedure, every pre-approved plan (that is, every M&P
and VS plan) generally has a regular, sixyear remedial amendment cycle. As a result, M&P sponsors and VS practitioners
(including mass submitters), as defined in
Rev. Proc. 2015–36, may apply for new
opinion or advisory letters once every six
years. Employers that adopt such preapproved plans generally are on the same
six-year remedial amendment cycle with
respect to their plans, and, if otherwise

July 18, 2016

eligible under section 20.03 of this revenue procedure and section 8 of Rev. Proc.
2016 – 6 (updated annually), may apply
for determination letters once every six
years. However, pre-approved defined
contribution plans have different six-year
remedial amendment cycles than preapproved defined benefit plans. Thus, the
same six-year remedial amendment cycle
applies with respect to all pre-approved
defined contribution plans, and a separate
six-year remedial amendment cycle applies with respect to all pre-approved defined benefit plans.
.02 M&P sponsors and VS practitioners generally have until January 31st of
the calendar year following the opening of
the six-year remedial amendment cycle to
submit applications for opinion and advisory letters. In addition, generally, the
deadline for word-for-word identical
adopters and minor modifier placeholder
applications is January 31st of the calendar year following the opening of the sixyear remedial amendment cycle (see section 12 of Rev. Proc. 2015–36 for more
details). However, see section 16 of this
revenue procedure, which modifies the
dates of the submission period for preapproved defined contribution plans during the third six-year remedial amendment
cycle.
.03 When the review of a cycle for
pre-approved plans has neared completion
(after approximately a two-year review
process), the IRS intends to announce the
date by which adopting employers must
adopt the newly approved plans. This is
expected to be a uniform date that will
apply to all adopting employers. Depending upon the length of the review process,
it is expected that this deadline will provide virtually all employers approximately a two-year window to adopt their
updated plans. An employer that adopts
the approved M&P or VS plan by the
announced deadline will have adopted the
plan within the employer’s six-year remedial amendment cycle. The announced
deadline will be the end of the plan’s
remedial amendment cycle for all disqualifying provisions for which the remedial
amendment period would otherwise end
during the cycle. For purposes of this rev-

enue procedure, an adopting employer
means an employer that satisfies the requirements described in section 19 of this
revenue procedure.
SECTION 15. EXTENSION OF THE
REMEDIAL AMENDMENT PERIOD
AND DEADLINES FOR THE
ADOPTION OF INTERIM AND
DISCRETIONARY PLAN
AMENDMENTS FOR PREAPPROVED PLANS
.01 To promote compliance during the
six-year remedial amendment cycle with
statutory or regulatory changes with respect to plan qualification requirements
that will affect provisions of the written
plan document, the adoption of an interim
amendment generally will be required.
.02 An amendment with respect to a
disqualifying provision described in section 5.03 of this revenue procedure (that
is, a disqualifying provision that results in
the failure of the plan to satisfy the qualification requirements of the Code by reason of a change in those requirements that
is effective after December 31, 2001,2 or
that is integral to such disqualifying provision) is referred to as an interim amendment for purposes of this revenue procedure.
.03 Except as otherwise provided by
statute, or in regulations or other guidance
published in the Internal Revenue Bulletin, the remedial amendment period for
the disqualifying provisions described in
this section 15.03 is extended as follows:
(1) The remedial amendment period
for any disqualifying provision described
in § 1.401(b)–1(b)(1) that would otherwise apply under § 1.401(b)–1 is extended
to the end of the applicable remedial
amendment cycle described in section 16
that includes the date on which the remedial amendment period would otherwise
end if the disqualifying provision was a
provision of, or absence of a provision
from, a new plan and the plan was intended, in good faith, to be qualified. The
same extension of the remedial amendment period applies to a disqualifying provision (including a disqualifying provision described in section 15.02) in the
case of an adoption of an amendment to

an existing plan (without regard to
whether that amendment was required to
be adopted) if the amendment was adopted timely and in good faith with the
intent of maintaining the qualified status
of the plan. However, the remedial
amendment period for a disqualifying provision will not end before the last day of a
plan’s first applicable remedial amendment cycle in which an application for an
opinion or advisory letter that considers
the disqualifying provision may be submitted. The IRS will make the final determination in all cases as to whether a new
plan or an amendment to an existing plan
was adopted with the good faith intention
of being qualified or maintaining qualified
status.
(2) In addition, the extension of the
remedial amendment period described in
section 15.03(1) applies to a disqualifying
provision described in section 15.02 in
cases in which the employer (or M&P
sponsor or VS practitioner, if applicable)
reasonably and in good faith determines
during the period when an interim amendment to reflect a qualification change
would otherwise be required under section
15.01 that no amendment is required because the qualification change does not
impact provisions of the written plan document. Thus, for example, if an employer
(or M&P sponsor or VS practitioner, if
applicable) makes such a determination
and the IRS finds that an amendment is
required, the plan would still be eligible
for the six-year remedial amendment cycle to correct the disqualifying provisions
described in section 15.02. The IRS will
make the final determination in all cases
as to whether the determination that no
interim amendment was required was reasonable and in good faith.
(3) Notwithstanding paragraphs (1)
and (2) of this section 15.03, the termination of a plan ends the plan’s remedial
amendment period and, thus, generally
will shorten the remedial amendment period for the plan.
.04 Except as otherwise provided in
sections 15.05 and 15.06 of this revenue
procedure, the deadline for the timely
adoption of an amendment for any preapproved plan is determined as follows:

2
As provided in section 5.01 of Rev. Proc. 2007– 44, December 31, 2001, was the date after which all changes in qualification requirements were designated as disqualifying provisions by
the Commissioner in order for the changes to be eligible for the remedial amendment period available with respect to disqualifying provisions.

July 18, 2016

144

Bulletin No. 2016 –29

(1) In the case of an interim amendment, an employer (or a M&P sponsor or
VS practitioner, if applicable) is considered to have timely adopted the amendment if the plan amendment is adopted by
the end of the remedial amendment period
described in § 1.401(b)–1(b)(3) (determined without regard to the extension under section 15.03 of this revenue procedure). See section 2.07 of this revenue
procedure.
(2) In the case of a discretionary
amendment (that is, one that is not an
interim amendment described in section
15.02), an employer (or a M&P sponsor or
VS practitioner, if applicable) is considered to have adopted the amendment
timely if the plan amendment is adopted
by the end of the plan year in which the
plan amendment is operationally put into
effect. See section 8.02(1) of this revenue
procedure for examples illustrating this
deadline.
.05 Exceptions to section 15.04 amendment adoption deadlines.
Section 15.04 of this revenue procedure applies unless a statutory provision
or guidance issued by the IRS sets forth an
earlier deadline to timely adopt a discretionary amendment with respect to a plan
year (for example, an amendment to add a
qualified cash or deferred arrangement to
a profit sharing plan cannot be adopted
retroactively) or if a statutory provision or
guidance provides another specific deadline for the adoption of a particular type of
interim amendment that is earlier or later
than the deadlines under section 15.04.
.06 Special deadlines for governmental
and tax exempt employers.
(1) Governmental plans.

If the plan is -

Defined Contribution
Defined Benefit

(a) For a governmental plan within the
meaning of § 414(d), the adoption deadline for interim amendments is: the later
of (i) the deadline that would apply under
the rules of section 15.04(1), or (ii) 90
days after the close of the third regular
legislative session of the legislative body
with authority to amend the plan that begins on or after the date the amendment
becomes effective.
(b) For a governmental plan within the
meaning of § 414(d), the adoption deadline for discretionary amendments is: the
later of (i) the deadline that would apply
under the rules of section 15.04(2), or (ii)
90 days after the close of the second regular legislative session of the legislative
body with authority to amend the plan that
begins on or after the date the amendment
becomes effective.
(2) Tax exempt employers. For a tax
exempt employer, the adoption deadline
for interim amendments set forth in section 15.04(1) and 15.05 of this revenue
procedure applies, as modified in this section 15.06(2). For purposes of determining the applicable tax filing deadline, the
following rule is used to determine the
due date (including extensions) for filing
the income tax return for the employer’s
taxable year under section 2.07 of this
revenue procedure. The due date for filing
the employer’s tax return in the case of a
tax exempt employer that files Form
990 –T (or Form 990 or Form 990 –EZ if
no Form 990 –T is filed) is the later of (i)
the 15th day of the 10th month after the
end of the employer’s tax year (treating
the calendar year as the tax year if the
employer does not have a tax year) or (ii)
the due date for filing the Form 990 series

(plus extensions). For this purpose, an
employer is not treated as having obtained an extension of time for filing the
Form 990 series unless such extension is
actually applied for and granted. The
due date for filing the employer’s tax
return in the case of a tax exempt employer that is not required to file a Form
990 series return is the 15th day of the
10th month after the end of the employer’s tax year (treating the calendar year
as the tax year if the employer does not
have a tax year).
.07 For purposes of this revenue procedure, a pre-approved plan restatement
that generally is effective as of a certain
date should not be treated as superseding a previously adopted interim plan
amendment that is effective before or
after the restatement’s effective date and
that has not been incorporated or reflected in the restatement, provided that
the pre-approved plan is operated in a
manner consistent with the interim plan
amendment. A plan is presumed to be
operating in compliance with the interim
plan amendments in any case in which
the operation of the plan cannot be determined.
SECTION 16. SCHEDULES FOR
THE SECOND AND THIRD SIXYEAR REMEDIAL AMENDMENT
CYCLES
.01 The table in this section 16 sets
forth the schedules for the second and
third six-year remedial amendment cycles
for pre-approved defined contribution and
defined benefit plans. Subsequent cycles
will continue on six year intervals.

Schedule(s) of Second and Third Six-Year Remedial Amendment Cycles
The second six-year
remedial amendment
cycle began on February 1, 2011
February 1, 2013

If the plan is Defined Contribution
Defined Benefit

Bulletin No. 2016 –29

The third six-year remedial amendment
cycle begins on February 1, 2017
February 1, 2019

145

And ends on -

January 31, 2017
January 31, 2019
And ends on January 31, 2023
January 31, 2025

July 18, 2016

.02 In general, sponsors of M&P plans
and practitioners maintaining VS plans
must apply for new opinion or advisory
letters for the plans every six years. The
submission period for pre-approved defined contribution plans during the third
six-year remedial amendment cycle would
ordinarily begin February 1, 2017, and
end January 31, 2018 (on-cycle submission period). However, pursuant to this
section 16.02, the on-cycle submission period for M&P sponsors and VS practitioners to submit pre-approved defined contribution plans for opinion or advisory
letters during the third six-year remedial
amendment cycle will begin August 1,
2017, and end July 31, 2018.
.03 If necessary, the IRS may revise the
schedules described in this section 16 to
respond to changing circumstances and
the needs of plan sponsors. The IRS will
announce any such revisions and the timing of the submission periods within each
cycle in future guidance published in the
Internal Revenue Bulletin.
SECTION 17. CUMULATIVE LISTS
OF CHANGES IN PLAN
QUALIFICATION
REQUIREMENTS; OPERATIONAL
COMPLIANCE LIST
.01 The IRS intends to publish Cumulative Lists of Changes in Plan Qualification Requirements (Cumulative Lists) for
pre-approved plans. The Cumulative Lists
are intended to identify all changes in the
qualification requirements that are required to be taken into account in the
written plan document that is submitted to
the IRS for an opinion, advisory, or determination letter, as applicable. The IRS
currently anticipates that a Cumulative
List will be issued in the year preceding
the year in which the pre-approved defined contribution plan or defined benefit
plan submission period begins. The target
date for publication of a Cumulative List
is December of such year.
.02 Each Cumulative List identifies
changes in the qualification requirements
of the Code as well as items of published
guidance relating to the plan qualification
requirements, such as regulations and revenue rulings, that will be considered by
the IRS in its review of plans whose preapproved plan submission period begins
on the February 1st (or other date deter-

July 18, 2016

mined under section 16.02 or 16.03, as
applicable) following issuance of the Cumulative List.
.03 Except as provided in the applicable Cumulative List, the IRS generally
will not consider in its review of any
opinion, advisory, or determination letter
application any:
(1) guidance issued after the October 1
immediately preceding the date the applicable Cumulative List is issued;
(2) statutes enacted after the October 1
immediately preceding the date the applicable Cumulative List is issued;
(3) statutes that are first effective in the
year in which the submission period begins for which there is no guidance identified on the applicable Cumulative List
(regardless of when they are enacted); or
(4) qualification requirements (either
statutory or regulatory) that become effective for the plan in a calendar year after
the calendar year in which the submission
period begins, regardless of when the
qualification requirements are enacted or
issued (for example, qualification requirements first effective in 2018, for applications submitted during the period beginning August 1, 2017, based on the 2016
Cumulative List).
.04 The IRS will, however, consider in
its review of any opinion, advisory, or
determination letter application all qualification requirements that are not described in section 17.03(1) through (4) of
this revenue procedure. Thus, for example, a determination letter may be relied
on with respect to guidance issued on or
before the October 1st preceding the issuance of the applicable Cumulative List
and which is effective during the calendar
year in which the submission period begins, whether or not identified on the applicable Cumulative List.
In addition, in the case of a terminating
plan, any retroactive remedial plan
amendments or other required plan
amendments (that is, plan amendments required to be adopted to reflect qualification requirements that apply as of the date
of termination) must be adopted in connection with the plan termination regardless of whether such requirements are included on an applicable Cumulative List.
.05 The remedial amendment period
permits a plan to be amended retroactively
to comply with a change in plan qualifi-

146

cation requirements; however, a plan must
be operated in compliance with a change
in qualification requirements from the effective date of the change. To assist plan
sponsors in achieving operational compliance, the IRS intends to provide annually
an Operational Compliance List to identify changes in qualification requirements
that are effective during a calendar year.
In order to be qualified, however, a plan
must comply operationally with each relevant qualification requirement, even if
the requirement is not included on an Operational Compliance List.
SECTION 18. EXTENSION OF
DEADLINE FOR AN EMPLOYER
TO ADOPT A NEWLY APPROVED
PRE-APPROVED DEFINED
CONTRIBUTION PLAN AND TO
APPLY FOR A DETERMINATION
LETTER (IF APPLICABLE)
.01 Consistent with Notice 2016 – 03,
except as provided in section 18.02 of this
revenue procedure, the deadline for an
employer to adopt a newly approved preapproved defined contribution plan that
was based on the 2010 Cumulative List,
and to apply for a determination letter, is
extended from April 30, 2016, to April 30,
2017, for any newly approved preapproved defined contribution plan adopted on or after January 1, 2016. For
plans eligible for this extension, the procedures for adopting a pre-approved plan
and for filing a determination letter set
forth in Rev. Proc. 2016 – 6 and Rev. Proc.
2007– 44 will continue to apply. Thus, for
example, in the case of an employer eligible for this extension that is adopting a
newly approved pre-approved defined
contribution plan as a modification and
restatement of an individually designed
plan, the rules relating to the scope of the
determination letter program set forth in
section 4 of this revenue procedure do not
apply, and the employer is permitted, until
April 30, 2017, to file a determination
letter application for the plan on a Form
5307 (Application for Determination for
Adopters of Modified Volume Submitter
Plans) or a Form 5300 (Application for
Determination for Employee Benefit
Plan), regardless of whether the employer
had previously filed a Form 5300 with
respect to the plan.

Bulletin No. 2016 –29

.02 For an employer that adopted a
pre-approved defined contribution plan
prior to January 1, 2016, the deadline to
adopt a modification and restatement of
the pre-approved defined contribution
plan within the current six-year remedial
amendment cycle for defined contribution
plans and to apply for a determination
letter, if permissible, was April 30, 2016.
.03 Examples.
Examples 8 through 10 illustrate the
deadline for an employer to adopt a preapproved defined contribution plan and to
apply for a determination letter, if permissible.
Example 8: Extended deadline for employer with
an existing individually designed plan. As of June
30, 2016, Employer A maintains Plan X, an individually designed defined contribution plan. Employer
A is considering converting Plan X into a preapproved defined contribution plan. Employer A has
until April 30, 2017, to adopt a newly approved
pre-approved defined contribution plan within the
current six-year remedial amendment cycle for defined contribution plans and to apply for a determination letter, if permissible.
Example 9: Extended deadline for employer with
a new individually designed plan. Employer B
adopts Plan Y, an individually designed defined contribution plan, on January 1, 2016. Employer B is
considering converting Plan Y into a pre-approved
defined contribution plan. Employer B has until
April 30, 2017, to adopt a newly approved preapproved defined contribution plan within the current six-year remedial amendment cycle for defined
contribution plans and to apply for a determination
letter, if permissible.
Example 10: Existing deadline for employer that
adopted a pre-approved defined contribution plan
prior to January 1, 2016. On April 1, 2010, Employer C initially adopted the VS defined contribution plan of Practitioner Z, which was approved
based on the 2004 Cumulative List. On January 15,
2016, Employer C adopted the newly approved VS
defined contribution plan of Practitioner Z as a modification and restatement of Employer C’s existing
VS defined contribution plan. The deadline for Employer C to apply for a determination letter, if permissible, was April 30, 2016. The same deadline
would apply if Employer C had adopted a plan of a
different VS practitioner.

SECTION 19. ELIGIBILITY FOR
SIX-YEAR REMEDIAL
AMENDMENT CYCLE SYSTEM
.01 An employer’s plan is treated as a
pre-approved plan and therefore eligible

for a six-year remedial amendment cycle
system if the employer is:
(1) a prior adopter described in section
19.02; or
(2) a new adopter described in section
19.03.
.02 An employer is a prior adopter if
the employer adopted and made effective
an existing pre-approved plan, as described in section 19.05(1) of this revenue
procedure, during the six-year remedial
amendment cycle immediately preceding
the opening of the current six-year cycle3
, and the employer, within the announced
adoption period described in section 14.03
of this revenue procedure, either:
(1) adopts the newly approved version
of that pre-approved plan; or
(2) adopts the newly approved version
of a different pre-approved plan maintained by either the same M&P sponsor or
VS practitioner or a different M&P sponsor or VS practitioner. See section
19.05(3) of this revenue procedure for the
definition of a newly approved preapproved plan.
.03 An employer is a new adopter if the
employer adopts a pre-approved plan and
the employer is not a prior adopter.
.04 An employer may adopt a preapproved plan at any time during a sixyear remedial amendment cycle; however,
if the employer adopts an existing preapproved plan described in section
19.05(1) of this revenue procedure, or an
interim pre-approved plan described in
section 19.05(2) of this revenue procedure, it must adopt either the newly approved version of the same plan or a
newly approved version of a different preapproved plan by the end of the adoption
period described in section 14.03 of this
revenue procedure (see section 19.05(3)
of this revenue procedure for the definition of a newly approved pre-approved
plan). An employer that adopts an existing
pre-approved plan or an interim preapproved plan, but during the adoption
period described in section 14.03 of this
revenue procedure, adopts a plan other
than a newly approved version of a preapproved plan, will not be treated as

adopting a pre-approved plan. In such
case, the plan remains eligible for the current six-year remedial amendment cycle;
however, if the plan is submitted for a
determination letter (as permitted under
section 20.03 of this revenue procedure),
the plan will be reviewed on the basis of
the applicable Required Amendments List
as provided in section 12 of this revenue
procedure.
.05 For purposes of this section 19:
(1) An existing pre-approved plan is a
plan (other than a newly approved plan, as
described in section 19.05(3) of this revenue procedure) that has received a valid
opinion or advisory letter for the six-year
remedial amendment cycle immediately
preceding the opening of the current sixyear remedial amendment cycle. For purposes of this definition, a plan is considered an existing pre-approved plan
whether or not interim or discretionary
amendments have been integrated into the
pre-approved plan document.
(2) An interim pre-approved plan is a
plan (other than a newly approved plan)
that was not in existence in the immediately preceding six-year remedial amendment cycle and that has been or will be
submitted for an opinion or advisory letter
during the current six-year remedial
amendment cycle. For purposes of this
definition, a plan is considered an interim
pre-approved plan whether or not interim
or discretionary amendments have been
integrated into the pre-approved plan.
(3) A newly approved plan is a preapproved plan for which an opinion or
advisory letter has been issued in the current six-year remedial amendment cycle.4
.06 Examples.
Examples 11 through 14 illustrate an
employer’s eligibility for the six-year remedial amendment cycle. In the following
examples, both the tax year of the employer and the plan year are the calendar
year and, except as otherwise provided,
the plan has been operated in accordance
with plan terms, including any interim and
discretionary amendments.
Example 11: Adoption of plan maintained by
different sponsor. Employer L adopted and made

3
The current six year remedial amendment cycle as of the date of publication of this revenue procedure began on February 1, 2011, for defined contribution plans and February 1, 2013,
for defined benefit plans. The immediately preceding six year remedial amendment cycle ended on January 31, 2011, for defined contribution plans and January 31, 2013, for defined benefit
plans.
4
See section 21 of this revenue procedure for special rules applicable to an opinion or advisory letter application for a new pre-approved plan created after the submission period for the
applicable six-year cycle.

Bulletin No. 2016 –29

147

July 18, 2016

effective Plan X on January 1, 2011. Plan X is an
existing pre-approved M&P defined contribution
plan sponsored by Sponsor M. Plan Y is also a
defined contribution M&P plan but sponsored by
Sponsor N, which timely submitted an application by
April 2, 2012 (the extended deadline to submit oncycle applications for opinion and advisory letters
for pre-approved defined contribution plans for the
second six-year remedial amendment cycle, as provided in Announcement 2012–3). In Announcement
2014 –16, the IRS announced that May 1, 2014
through April 30, 2016 would be the two-year window for employers to adopt newly approved preapproved plans and file determination letters, if applicable.

Sponsor M notified Employer L that it
no longer qualified as a sponsor because it
did not have the requisite number of employers (30) reasonably expected to adopt
Plan X. Therefore, Sponsor M did not
submit a new opinion letter application for
Plan X within the six-year remedial
amendment cycle by April 2, 2012. Employer L timely adopts Plan Y of Sponsor
N within the two-year window period
(May 1, 2014 through April 30, 2016).
Employer L will be considered to be a
“prior adopter” within the meaning of section 19.02 of this revenue procedure and is
eligible for the six-year remedial amendment cycle. The result would be the same
whether Employer L switched to Plan Y
because Sponsor M did not timely submit
an application by April 2, 2012, for Plan
X, Sponsor M timely submitted an application by April 2, 2012 but later withdrew
the application, or Employer L chose not
to retain the plan of Sponsor M for other
reasons.
Example 12: Adoption of different plan offered
by same sponsor. The facts are the same as in Example 11 except Employer L adopts Plan Z, a different pre-approved M&P defined contribution plan
sponsored by Sponsor M, within the announced twoyear window period and Sponsor M timely submitted an application for an opinion letter by April 2,
2012 for Plan Z. Employer L is considered to be a
prior adopter and is eligible for the six-year remedial
amendment cycle.
Example 13: Adoption of VS plan in place of
M&P plan. The facts are the same as in Example 11
except Employer L adopts Plan V, a VS defined
contribution plan instead of an approved M&P plan,
within the announced two-year window period and
the practitioner timely submitted an application
for an advisory letter for Plan V by April 2, 2012.
Employer L is considered to be a prior adopter and
is eligible for the six-year remedial amendment
cycle.
Example 14: Adoption of plan by new adopter.
Employer P has never maintained a qualified plan.
Sponsor S timely submitted an application for an
opinion letter for Plan Y, an interim pre-approved
defined contribution M&P plan (that was not in

July 18, 2016

existence in the immediately preceding six-year
remedial amendment cycle), by April 2, 2012.
Employer P adopted the interim pre-approved plan
document of Plan Y on December 15, 2012, prior
to the announced adoption period (May 1, 2014
through April 30, 2016). On March 28, 2014, the
IRS issued a favorable opinion letter for Plan Y.
Employer P adopted the newly approved version
of Plan Y on June 1, 2014, during the announced
adoption period. Employer P is a new adopter and
is eligible for the six-year remedial amendment
cycle.

SECTION 20. EFFECT OF
EMPLOYER AMENDMENTS ON
SIX-YEAR REMEDIAL
AMENDMENT CYCLE
.01 General rule. An employer that
amends any provision of an approved
M&P plan, including its adoption agreement (other than to change the choice of
options, if the plan or adoption agreement permits or contemplates such a
change), or an employer that amends
provisions of a VS plan loses reliance on
the opinion or advisory letter issued to
the M&P sponsor or VS practitioner;
however, except as provided in section
20.02 of this revenue procedure, the employer’s plan will remain on the current
six-year remedial amendment cycle. The
employer’s plan may be eligible for the
six-year remedial amendment cycle that
follows the current six-year remedial
amendment cycle if the employer’s plan
satisfies the conditions set forth in section 19.01 of this revenue procedure.
See section 20.03 of this revenue procedure for procedures for filing a determination application to obtain continued
reliance.
.02 Ineligibility for Six-Year Remedial
Amendment Cycle. A plan is ineligible for
the six-year remedial amendment cycle if
the employer:
(1) amends an approved M&P plan,
including its adoption agreement, to incorporate, within one year of the date the
employer initially adopted the M&P plan,
a type of plan not allowed in the M&P
program (see section 6.03 of Rev. Proc.
2015–36); or
(2) amends an approved VS plan, including its adoption agreement, if applicable, to incorporate, within one year of
the date the employer initially adopted the
VS plan, a type of plan not allowed in the
VS program (see section 16.03 of Rev.
Proc. 2015–36).

148

.03 Determination letter procedures.
(1) An employer that amends a M&P
or VS plan loses reliance on the opinion or
advisory letter of the M&P or VS plan.
However, to the extent permitted in this
section 20.03(2) through (5), that employer may file a determination letter application for the plan to obtain reliance.
See also, Rev. Proc. 2016 – 6, section 8.01
(updated annually).
(2) An adopting employer described in
section 20.03(1) that modifies the terms of
an approved VS plan in situations in
which the modifications are not extensive
may apply for a determination letter on
Form 5307, regardless of whether a prior
determination letter has been issued with
respect to the plan.
(3) An adopting employer described in
section 20.03(1) that makes extensive
modifications to an approved VS plan and
an adopting employer that makes any
modifications to an approved M&P plan
may apply for a determination letter on
Form 5300. An employer may submit a
determination letter application on a Form
5300 only if the application is made upon
initial qualification, plan termination, or in
other circumstances identified by the IRS.
See section 4 of this revenue procedure
and Rev. Proc. 2016 – 6, section 8.01
(updated annually). For this purpose, an
employer that previously filed an application on Form 5300 or Form 5307 with
respect to the plan and was issued a
favorable determination letter is not eligible to file a Form 5300 for initial plan
qualification.
(4) Subject to section 20.03(5), an
adopting employer described in section
20.03(2) or (3) that files a determination
letter application for the plan must file the
application within the announced adoption period described in section 14.03 of
this revenue procedure. In such case, the
employer’s plan is reviewed using the Cumulative List that was used to review the
underlying pre-approved plan.
(5) Section 24.03 of Rev. Proc.
2015–36 provides that, due to the nature
and extent of employer amendments made
to an approved M&P or VS plan, the IRS
may, in its discretion, treat the plan as
individually designed. In such case, although the plan remains eligible for the
six-year remedial amendment cycle until
the expiration of the current remedial

Bulletin No. 2016 –29

amendment cycle in accordance with section 20.01 of this revenue procedure, the
employer’s plan is, in other respects,
treated as an individually designed plan.
Thus, for example, the IRS reviews the
plan using the Required Amendments List
that was issued during the second calendar
year preceding the submission of the determination letter application, in accordance with section 12 of this revenue procedure.
(6) Determination letter filing procedures are set forth in Rev. Proc. 2016 – 6,
which will be updated annually.
(7) While it is expected that an M&P
sponsor and a VS practitioner, if applicable, generally will continue to amend on
behalf of the adopting employer even if
the adopting employer adopts amendments to the plan, the sponsor or practitioner no longer has the authority to
amend on behalf of the employer if the
amendment falls into one of the categories
listed in section 6.03 or section 16.03 of
Rev. Proc. 2015–36 or the IRS has exercised its authority under section 24.03 of
Rev. Proc. 2015–36.
.04 Examples.
Examples 15 through 17 illustrate how
different types of employer amendments
to a pre-approved plan affect an employer’s eligibility for the six-year remedial
amendment cycle and which applicable
list (either the Cumulative List or the Required Amendments List) the IRS will use
to review an employer’s submission. In
the following examples, both the tax year
of the employer and the plan year are the
calendar year and, except as otherwise
provided, the plan has been operated in
accordance with the plan terms, including
any interim and discretionary amendments.
Example 15: Eligibility for six-year remedial
amendment cycle after minor modifications. Employer X has maintained Plan M, an approved VS
plan, since 2002. Employer X never received an
individual determination letter for Plan M. Plan M
is timely submitted for the third six-year remedial
amendment cycle by the VS practitioner. During
the third six-year remedial amendment cycle, Employer X makes minor modifications to Plan M.
Pursuant to section 20.01 and 20.03, Plan M is
eligible to remain on the six-year remedial amendment cycle and may be submitted for a determination letter application on a Form 5307 by the
end of the adoption period described in section
14.03 of this revenue procedure. The IRS will
review the determination letter application based

Bulletin No. 2016 –29

upon the Cumulative List that was used to review
the underlying VS plan.
Example 16: Eligibility for six-year remedial
amendment cycle if plan amendments are not minor.
The facts are the same as in Example 15, except that
during the third six-year remedial amendment cycle,
Employer X modifies Plan M to the extent that the
plan is not eligible to be submitted on a Form 5307,
in accordance with section 8.01(2) of Rev. Proc.
2016 – 6. Because Employer X has never received
an individual determination letter for Plan M, pursuant to section 20.03(3) of this revenue procedure, Employer X may submit a Form 5300 determination letter application for initial plan
qualification for Plan M. Employer X must submit
the determination letter application for Plan M by
the end of the adoption period described in section
14.03 of this revenue procedure. Plan M remains
eligible for the third six-year remedial amendment
cycle as described in section 20.01. The IRS will
review the plan based upon the Cumulative List
that was used to review the underlying VS plan.
Example 17: Eligibility for six-year remedial
amendment cycle and applicability of Required
Amendments List. Employer Z has never maintained
a defined contribution plan and then adopts a newly
approved VS plan (Plan V); however, Employer Z
makes major modifications to the provisions of the
plan. Employer Z submits a determination letter application on Form 5307 during the two-year window
described in section 14.03 of this revenue procedure.
Pursuant to section 24.03 of Rev. Proc. 2015–36, the
IRS, in its discretion, determines that Employer Z
has modified the provisions of the plan to such an
extent that Plan V is considered an individually
designed plan. In accordance with section 20.01 of
this revenue procedure, Plan V remains eligible
for the third six-year remedial amendment cycle.
Employer Z may submit Plan V for a determination letter for initial qualification on Form 5300.
Consistent with section 12 of this revenue procedure, the IRS will use the Required Amendments
List that was issued during the second calendar
year preceding the submission of a determination
letter application in its review of the determination
letter submission for Plan V. The review will also
take into account all previously issued Required
Amendments Lists (and Cumulative Lists issued
prior to 2016). The result in this example would be
the same if Employer Z had amended Plan V to
incorporate a type of plan provision not permitted
in the VS program more than one year after Employer Z initially adopted Plan V (see section
16.03 of Rev. Proc. 2015–36).

SECTION 21. OFF-CYCLE FILING
.01 An application for an opinion or
advisory letter for a plan that is word-forword identical to an approved mass submitter that has a current advisory or
opinion letter is not treated as off-cycle
merely because it is submitted after the
end of the applicable on-cycle submission period for the six-year remedial
amendment cycle. Any other application
for an opinion or advisory letter that is

149

submitted after the applicable on-cycle
submission period for the six-year remedial amendment cycle is treated as an
off-cycle filing. If such an off-cycle application is submitted before the beginning of the two-year window for employer adoption announced by the IRS
for an applicable six-year cycle (as described in section 14.03 of this revenue
procedure), the IRS generally will not
review the application until it has reviewed and processed all on-cycle
plans. However, the IRS may, in its
discretion, determine whether the processing of off-cycle filings may be prioritized and accelerated under certain
circumstances. Off-cycle applications
that are submitted during or after the
two-year window will not be accepted.
.02 As described in section 14.03 of
this revenue procedure, the IRS intends to
publish an announcement providing the
date by which adopting employers must
adopt the newly approved plans when the
review of a cycle for pre-approved plans
has neared completion. Depending on the
length of the review process, it is expected
that this date will provide virtually all
employers approximately a two-year window to adopt the newly approved plans.
However, the adoption period for employers to adopt such newly approved plans
may be shorter than this approximate twoyear window, depending on when the IRS
finishes the review and approves such
plans. In any event, for adopting employers of such newly approved plans to be
eligible for the applicable six-year remedial amendment cycle, M&P sponsors or
VS practitioners filing off cycle must submit new pre-approved plans prior to the
beginning of such announced adoption period, to give the IRS time to review such
plans and to provide time for adopting
employers to adopt such plans.
.03 Adopting employers must adopt
such newly approved plans within the
adoption period described in section 14.03
of this revenue procedure and, if eligible
to submit for a determination letter pursuant to section 20.03 of this revenue procedure, may file a Form 5307 or Form
5300 as appropriate.

July 18, 2016

PART IV – EFFECT ON OTHER
DOCUMENTS, EFFECT ON OTHER
LAWS, EFFECTIVE DATE,
DRAFTING INFORMATION

.02 Sections 2.07 and 24.03 of Rev.
Proc. 2015–36 are modified.
.03 Sections I and III of Notice
2015– 84 are modified.

SECTION 22. EFFECT ON OTHER
DOCUMENTS

SECTION 23. EFFECTIVE DATE

.01 Rev. Proc. 2007– 44 is clarified,
modified, and superseded.

This revenue procedure is effective
January 1, 2017.

July 18, 2016

150

DRAFTING INFORMATION
The principal author of this revenue
procedure is Angelique Carrington of the
Office of Associate Chief Counsel (Tax
Exempt and Government Entities). For
further information regarding this revenue
procedure, contact Ms. Carrington at
(202) 317-4148 (not a toll-free number).

Bulletin No. 2016 –29