Rev Proc 2023-37

Rev. Proc. 2023-37
TABLE OF CONTENTS
PART I.

OVERVIEW

SECTION 1.
SECTION 2.
SECTION 3.
SECTION 4.

PURPOSE
BACKGROUND
ORGANIZATION OF REVENUE PROCEDURE; SIGNIFICANT
CHANGES
DEFINITIONS

PART II. REMEDIAL AMENDMENT CYCLES AND REMEDIAL AMENDMENT
PERIODS
SECTION 5.
SECTION 6.
SECTION 7.
SECTION 8.

REMEDIAL AMENDMENT CYCLE SYSTEM
REMEDIAL AMENDMENT PERIODS
PLAN AMENDMENT DEADLINES
SCHEDULES FOR REMEDIAL AMENDMENT CYCLES

PART III. PROCEDURES FOR A PROVIDER APPLYING FOR AN OPINION LETTER
SECTION 9.
SECTION 10.
SECTION 11.
SECTION 12.
SECTION 13.
SECTION 14.
SECTION 15.
SECTION 16.
SECTION 17.
SECTION 18.
SECTION 19.
SECTION 20.
SECTION 21.
SECTION 22.
SECTION 23.
SECTION 24.

PROVISIONS REQUIRED IN PRE-APPROVED PLANS
OPINION LETTERS - SCOPE
ELIGIBILITY FOR THE CYCLE SYSTEM
EMPLOYER RELIANCE ON OPINION LETTER
PLAN AMENDMENTS
OPINION LETTER APPLICATIONS - INSTRUCTIONS TO PROVIDERS
AND OTHER RULES FOR APPLICATIONS AND LETTERS
ADDITIONAL REQUIREMENTS FOR MASS SUBMITTERS
FILINGS MADE AFTER THE SUBMISSION PERIOD
SCOPE OF REVIEW; TIMING OF ISSUANCE OF OPINION LETTERS
WITHDRAWAL OF APPLICATIONS
NONTRANSFERABILITY OF OPINION LETTER
NOTIFICATION OF ADOPTING EMPLOYER REGARDING FAILURE
OF THE FORM OF THE PLAN TO SATISFY QUALIFICATION
REQUIREMENTS OR SECTION 403(b) REQUIREMENTS
DISCONTINUED PLANS
REVOCATION OF OPINION LETTER BY THE IRS
RECORD KEEPING REQUIREMENTS
WHERE TO FILE

PART IV. PROCEDURES FOR AN ADOPTING EMPLOYER APPLYING FOR A
DETERMINATION LETTER
SECTION 25. ADOPTING EMPLOYER APPLYING FOR A DETERMINATION

2

LETTER
PART V. MISCELLANEOUS
SECTION 26.
SECTION 27.
SECTION 28.
SECTION 29.

EFFECT ON OTHER DOCUMENTS
EFFECTIVE DATE
PUBLIC COMMENTS
PAPERWORK REDUCTION ACT

3

PART I.

OVERVIEW

SECTION 1.

PURPOSE

.01 In general. This revenue procedure sets forth the rules regarding Qualified Preapproved Plans and Section 403(b) Pre-approved Plans, and combines, conforms,
clarifies, and updates rules for Qualified Pre-approved Plans and Section 403(b) Preapproved Plans previously set forth in prior revenue procedures, as described in
section 1.01(1) through (3). 1 Combining these prior revenue procedures allows for the
rules for the different types of Pre-approved Plans to be more easily conformed to each
other, to the extent practicable. These rules for Pre-approved Plans fall into three broad
categories:
(1) Remedial Amendment Periods, the Remedial Amendment Cycle system, and
plan amendment deadlines. This revenue procedure sets forth the rules regarding
Remedial Amendment Periods, the Remedial Amendment Cycle system, and plan
amendment deadlines for Qualified Pre-approved Plans and for Section 403(b) Preapproved Plans, which were previously set forth in Rev. Proc. 2016-37,
2016-29 IRB 136, as modified by Rev. Proc. 2017-41, 2017-29 IRB 92, and
Rev. Proc. 2020-40, 2020-38 IRB 575 (with respect to Qualified Pre-Approved Plans),
and in Rev. Proc. 2019-39, 2019-42 IRB 945, as modified by Notice 2020-35,
2020-25 IRB 948, Rev. Proc. 2020-40, and Rev. Proc. 2021-37, 2021-38 IRB 385 (with
respect to Section 403(b) Pre-approved Plans). The rules regarding Remedial
Amendment Periods, the Remedial Amendment Cycle system, and plan amendment
deadlines are effective on November 21, 2023.
(2) Provider application for an Opinion Letter. This revenue procedure also sets
forth the procedures for a Provider to apply for an Opinion Letter confirming that the
form of the Provider’s plan satisfies the Qualification Requirements or Section 403(b)
Requirements (procedures that were previously set forth in Rev. Proc. 2017-41, as
modified by Rev. Proc. 2018-21, 2018-41 IRB 467 (with respect to Qualified PreApproved Plans), and in Rev. Proc. 2021-37 (with respect to Section 403(b) Preapproved Plans)). The rules regarding the application procedures for an Opinion Letter
are effective with respect to:
(a) A Cycle 4 (or later) defined contribution Qualified Pre-approved Plan
(Cycle 4 for defined contribution Qualified Pre-approved Plans began on
February 1, 2023 (see section 1.02 for the start of the Submission Period for Cycle 4));
(b) A Cycle 4 (or later) defined benefit Qualified Pre-approved Plan (Cycle 4
All references to “section” in this revenue procedure are to sections of this revenue procedure unless
otherwise provided (such as with defined terms like Section 403(b) Pre-approved Plans and
Section 403(b) Requirements). All references using “§” in this revenue procedure are to sections of the
Internal Revenue Code or to Treasury regulations.
1

4

for defined benefit Qualified Pre-approved Plans begins on April 1, 2025); and
(c) A Cycle 3 (or later) Section 403(b) Pre-approved Plan (the Cycle 2
Submission Period for Section 403(b) Pre-approved Plans ended on May 1, 2023, and
Provider applications for Opinion Letters are currently being reviewed for these Preapproved Plans).
(3) Adopting Employer application for a determination letter. This revenue
procedure also sets forth the procedures for an Adopting Employer of a Qualified Preapproved Plan or a Section 403(b) Pre-approved Plan to apply for a determination letter
regarding the Adopting Employer’s plan (procedures that were previously set forth in
Rev. Proc. 2016-37 and Rev. Proc. 2017-41 (for an Adopting Employer of a Qualified
Pre-approved Plan), and in Rev. Proc. 2021-37 (for an Adopting Employer of a
Section 403(b) Pre-approved Plan)). The rules regarding the application procedures for
a determination letter apply to:
(a) An application for a determination letter submitted by an Adopting
Employer with respect to a Cycle 4 (or later) defined contribution Qualified Preapproved Plan;
(b) An application for a determination letter submitted by an Adopting
Employer with respect to a Cycle 4 (or later) defined benefit Qualified Pre-approved
Plan; and
(c) An application for a determination letter submitted by an Adopting
Employer with respect to a Cycle 2 (or later) Section 403(b) Pre-approved Plan. 2
.02 Submission Period for Cycle 4 defined contribution Qualified Pre-approved
Plans. Pursuant to this revenue procedure, the Submission Period for a Provider of a
defined contribution Qualified Pre-approved Plan to submit an application for a Cycle 4
Opinion Letter begins on February 1, 2024, and ends on January 31, 2025. A Provider
may apply for a Cycle 4 Opinion Letter at other times. See section 16 regarding filings
made after the Submission Period.
SECTION 2.

BACKGROUND

.01 Rev. Proc. 2016-37. Rev. Proc. 2016-37 provides that every pre-approved plan
has a recurring six-year remedial amendment cycle and that pre-approved plan
providers may apply for new opinion letters during a remedial amendment cycle.
Rev. Proc. 2016-37 also sets forth an extension of the remedial amendment period and
The rules regarding an Adopting Employer’s application for a determination letter apply for Cycle 2
Section 403(b) Pre-approved Plans because, although Cycle 2 has begun, Cycle 2 Opinion Letters have
not been issued and the Employer Adoption Window for Cycle 2 (during which an application for a
determination letter would generally be submitted) has not begun.
2

5

adoption deadline for plan amendments for qualified pre-approved plans. 3
.02 Rev. Proc. 2017-41. Rev. Proc. 2017-41 sets forth the procedures for issuing
opinion letters regarding the qualification in form of qualified pre-approved plans. 4
.03 Rev. Proc. 2019-39. Rev. Proc. 2019-39, as modified by Notice 2020-35, sets
forth a system of recurring remedial amendment periods for correcting form defects in
§ 403(b) pre-approved plans first occurring after June 30, 2020. Rev. Proc. 2019-39
also establishes a system of § 403(b) pre-approved plan cycles during which a provider
may submit a § 403(b) pre-approved plan for review and approval by the Internal
Revenue Service (IRS). Rev. Proc. 2019-39 also sets forth plan amendment deadlines
for amendments made to a § 403(b) pre-approved plan.
.04 Rev. Proc. 2021-37. Rev. Proc. 2021-37 sets forth the procedures for issuing
opinion letters regarding the satisfaction in form of § 403(b) pre-approved plans with
respect to the requirements of § 403(b) of the Internal Revenue Code (Code) for
remedial amendment cycle 2. Rev. Proc. 2021-37 also sets forth the rules for
determining when remedial amendment periods expire for § 403(b) pre-approved plans.
.05 Rev. Proc. 2022-40. Rev. Proc. 2022-40, 2022-47 IRB 487, sets forth the rules
and procedures for an employer to submit a determination letter application for an
individually designed qualified or § 403(b) plan for an initial plan determination, for a
determination upon plan termination, and in certain other circumstances identified by
the IRS in guidance published in the Internal Revenue Bulletin (IRB).
Rev. Proc. 2022-40 also sets forth the remedial amendment period rules and plan
amendment deadlines for individually designed qualified or § 403(b) plans.
.06 Rev. Proc. 2023-4. Rev. Proc. 2023-4, 2023-1 IRB 162, (as updated annually)
sets forth the general procedures on the issuance of Employee Plans determination
letters, including a determination letter for an adopting employer’s pre-approved plan.
SECTION 3.

ORGANIZATION OF REVENUE PROCEDURE; SIGNIFICANT
CHANGES

.01 Organization of this revenue procedure.
(1) Sections 1 through 4 set forth the purpose, background, organization,
significant changes, and definitions for this revenue procedure.
3
The rules of Rev. Proc. 2016-37 still apply for Cycle 3 Qualified Pre-approved Plans. However, Cycle 4
Qualified Pre-approved Plans (whether defined contribution or defined benefit) will be governed by this
revenue procedure and not Rev. Proc. 2016-37.
4
The rules of Rev. Proc. 2017-41 still apply for Cycle 3 Qualified Pre-approved Plans. However, Cycle 4
Qualified Pre-approved Plans (whether defined contribution or defined benefit) will be governed by this
revenue procedure and not Rev. Proc. 2017-41.

6

(2) Sections 5 through 8 set forth the rules regarding Remedial Amendment
Periods, the Remedial Amendment Cycle system, and plan amendment deadlines for
Qualified Pre-approved Plans and for Section 403(b) Pre-approved Plans.
(3) Sections 9 through 24 set forth the procedures for a Provider to apply for an
Opinion Letter confirming that the form of the Provider’s plan satisfies the Qualification
Requirements or Section 403(b) Requirements.
(4) Section 25 sets forth the procedures for an Adopting Employer of a Qualified
Pre-approved Plan or a Section 403(b) Pre-approved Plan to apply for a determination
letter regarding the Adopting Employer’s plan.
(5) Sections 26 through 29 set forth miscellaneous provisions, including
provisions regarding the effect on other documents, the effective date, and public
comments.
.02 Examples of significant changes from prior revenue procedures. In consolidating
the prior revenue procedures (which set forth rules for qualified pre-approved plans and
§ 403(b) pre-approved plans) into this revenue procedure, numerous changes were
made to conform, clarify, and update the rules. The following are some examples of
those changes.
(1) For all Pre-approved Plans.
(a) The Remedial Amendment Period for Disqualifying Provisions or Form
Defects is clarified to expire at the same time as the deadline for the adoption of Interim
Amendments, as set forth in section 7. See section 6.03(1).
(b) The end of the Remedial Amendment Period for Discretionary
Amendments made by an Adopting Employer (not by a Provider) is changed. See
section 6.03(2).
(c) The Interim Amendment rules are updated to provide that, if an Adopting
Employer does not correct a failure to timely adopt an Interim Amendment within two
years after the time period set forth in section 7, then the Adopting Employer’s plan will
be treated as an individually designed plan at the end of that two-year period. See
section 6.04.
(d) The Interim Amendment deadline is changed to match the individually
designed plan Remedial Amendment Period deadline. See section 7.01(1)(a) and
(2)(a).
(e) The plan amendment deadline for a Governmental Plan is changed to
provide additional time beyond the deadline for a plan that is not a Governmental Plan
only to the extent any action is required to be taken by the Adopting Employer in order

7

to adopt the amendment. See section 7.01(2).
(f) The eligibility of an employer to adopt a Pre-approved Plan for a Cycle is
changed to require that, for a plan that was not in existence in the immediately
preceding Cycle, the plan must have been submitted for an Opinion Letter for the Cycle
before the employer adopts it. See section 11.01(1).
(g) For a starter 401(k) deferral-only plan described in § 401(k)(16) or a safe
harbor deferral-only plan described in § 403(b)(16), 5 an Adopting Employer’s reliance is
updated to include those sections. See section 12.01(6) and 12.02(6).
(h) The circumstances under which a Pre-approved Plan will be treated as an
individually designed plan, and the consequences of such treatment, are updated and
clarified. See section 13.05.
(i) The rules for issuing an Opinion Letter are clarified to provide that an
Opinion Letter will not be issued for amendments made between Submission Periods.
Instead, a Provider must submit a restated plan that incorporates the amendments
during the next Submission Period. See section 14.15.
(j) The scope of review for an Opinion Letter is clarified and updated. See
section 17.01(1) and (2).
(k) The application filing address is updated. See section 24.
(l) The rules for an Adopting Employer applying for a determination letter are
clarified and updated. See section 25.
(2) For Qualified Pre-approved Plans.
(a) The number of unaffiliated Providers required to be associated with a
Mass Submitter is changed to better match the rules for a Mass Submitter with respect
to a Section 403(b) Pre-approved Plan. See section 4.01(10).
(b) The number of employer-clients a Provider must have is changed to
better match the rules for a Provider with respect to a Section 403(b) Pre-approved
Plan. See section 4.01(15).
(c) The Qualification Requirements are clarified to include § 409 for ESOPs.
See section 4.02(3).

Section 121 of Division T of the Consolidated Appropriations Act, 2023, Pub. L. 117-328, 136 Stat. 4459
(2022), known as the SECURE 2.0 Act of 2022, added §§ 401(k)(16) and 403(b)(16) to the Code,
effective for plan years beginning after December 31, 2023.

5

8

(d) The rules relating to a Cycle for a Qualified Pre-approved Plan are
changed to match the rules relating to a Cycle for a Section 403(b) Pre-approved Plan.
Accordingly, each Cycle is no longer a fixed six years, and each Cycle now ends at the
end of the Employer Adoption Window (with the result that the Submission Period may
begin after the first day of a Cycle). See section 5.02.
(e) The required provisions for a Qualified Pre-approved Plan that is a
pension plan and not a Governmental Plan are changed to require that the plan must
have a normal retirement age that is not less than age 55. See section 9.02(13).
(f) The effect of an amendment with respect to which a closing agreement
under the Audit Closing Agreement Program or a compliance statement under the
Voluntary Correction Program of the Employee Plans Compliance Resolution System
(EPCRS) has been issued is clarified to match the rules for a Section 403(b) Preapproved Plan and provide that reliance on the Opinion Letter will not be lost. See
section 13.02(8).
(g) The application procedures for an Opinion Letter are changed to no
longer require attachments required in prior Cycles. See section 14.03, which no longer
has the requirement.
(h) The consequences of a Provider failure to disclose a material fact are
changed to match the rules for a Provider failure to disclose a material fact with respect
to a Section 403(b) Pre-approved Plan. See section 14.11.
(i) The consequences of a Mass Submitter’s failure to identify a modification
are changed to match the rules for a Mass Submitter’s failure to identify a modification
with respect to a Section 403(b) Pre-approved Plan. See section 15.03(2)(c).
(j) The requirements for a Provider of a discontinued plan are changed to
match the rules for a discontinued plan with respect to a Section 403(b) Pre-approved
Plan. See section 21.02.
(3) For Section 403(b) Pre-approved Plans.
(a) The integral amendment portion of the definition of Form Defect is
changed to better match the Qualified Pre-approved Plan rules for a Disqualified
Provision. See section 4.03(2).
(b) The requirements for a Standardized Section 403(b) Pre-approved Plan
that provides only for elective deferrals are updated to add requirements regarding
hardship distributions and § 415 language. See section 9.07(1) and (2).
(c) The requirements for a Standardized Section 403(b) Pre-approved Plan
that provides for contributions other than elective deferrals are changed so that the

9

requirements of section 9.07(3)(b) apply only to contributions other than elective
deferrals. See section 9.07(3)(b).
(d) The rules for when an Opinion Letter will not be issued with respect to a
Section 403(b) Pre-approved Plan are changed to better match the rules for when an
Opinion Letter will not be issued with respect to a Qualified Pre-approved Plan and to
provide that an Opinion Letter will not be issued for (i) a plan designed to satisfy the
provisions of § 105, (ii) a plan that includes § 401(h) accounts, and (iii) a plan that
includes purported fail-safe provisions for § 401(a)(4) or the average benefit test under
§ 410(b). See section 10.02(1).
(e) The rules for an Adopting Employer of a Section 403(b) Pre-approved
Plan that applies for a determination letter are updated to better match the Qualified
Pre-approved Plan rules for determination letter applications. See section 25.
SECTION 4.

DEFINITIONS

.01 General definitions. For purposes of this revenue procedure, the following
definitions apply to all Pre-approved Plans.
(1) Adopting Employer. The term “Adopting Employer” means an Employer that
adopts a Pre-approved Plan offered by a Provider.
(2) Adoption Agreement Plan. The term “Adoption Agreement Plan” means a
plan that consists of a basic plan document and an adoption agreement. The basic plan
document includes all the non-elective provisions applicable to all Adopting Employers,
and the adoption agreement includes the options that may be selected by each
Adopting Employer. No options (including blanks to be completed) may be provided in
the basic plan document portion of the Adoption Agreement Plan (except as set forth in
section 15.03 regarding Flexible Plans).
(3) Cycle. The term “Cycle” means a Remedial Amendment Cycle, as defined in
section 4.01(17).
(4) Discretionary Amendment. The term “Discretionary Amendment” means an
amendment that is not an Interim Amendment.
(5) Employer. The term “Employer” means an employer that sponsors a Qualified
Pre-approved Plan for its employees or an eligible employer, as described in
§ 403(b)(1)(A), that sponsors a Section 403(b) Pre-approved Plan for its employees.
(6) Employer Adoption Window. The term “Employer Adoption Window” means
the period during which an Adopting Employer must adopt a newly approved Preapproved Plan for a Cycle, and is also generally the period during which an Adopting
Employer of a newly approved Pre-approved Plan may submit an application for a

10

determination letter (if otherwise permitted). See section 5.02 regarding the Employer
Adoption Window and section 25 regarding determination letters.
(7) Flexible Plan. The term “Flexible Plan” means a plan submitted by a Mass
Submitter that includes optional provisions (as described in section 15.03(1)(b)).
(8) Governmental Plan. The term “Governmental Plan” means a governmental
plan within the meaning of § 414(d).
(9) Interim Amendment. The term “Interim Amendment” means an amendment
to correct a Disqualifying Provision or a Form Defect that results in the failure of a Preapproved Plan to satisfy a Qualification Requirement or Section 403(b) Requirement, as
applicable, by reason of a change in that requirement, or an amendment that is integral
to that Disqualifying Provision or Form Defect. See section 6.04.
(10) Mass Submitter. The term “Mass Submitter” means any person that (a) has
an established place of business in the United States where it is accessible during every
business day, and (b) submits Opinion Letter applications on behalf of 15 unaffiliated
Providers, each of which is offering, on a word-for-word identical basis, the same plan.
A Flexible Plan that is offered by a Provider is considered a plan that is word-for-word
identical. For purposes of determining whether 15 unaffiliated Providers offer, on a
word-for-word identical basis, the same Pre-approved Plan, a Mass Submitter that is
also a Provider is treated as an unaffiliated Provider. For purposes of this definition,
affiliation is determined under § 414(b) and (c). Additionally, any law firm, accounting
firm, consulting firm, or similar organization is considered to be affiliated with its
partners, members, associates, or similar affiliated persons. A Mass Submitter is treated
as a Mass Submitter with respect to all of its plans, provided the 15-unaffiliated-Provider
requirement is met with respect to at least one plan. See section 15 for rules relating to
a Mass Submitter’s plans.
(11) Minor Modification. The term “Minor Modification” means a minor change to
an otherwise word-for-word identical Pre-approved Plan of the Mass Submitter that the
IRS determines does not require an in-depth IRS technical review. For example, a
change from five-year 100% vesting to three-year 100% vesting is a minor modification
for a defined benefit plan. On the other hand, a change in the method of accrual of
benefits in a defined benefit plan would not be considered a Minor Modification.
(12) Nonstandardized Plan. The term “Nonstandardized Plan” means a Preapproved Plan that is not a Standardized Plan.
(13) Opinion Letter. The term “Opinion Letter” means a written statement issued
by the IRS to a Provider or Mass Submitter that the form of a Qualified Pre-approved
Plan or a Section 403(b) Pre-approved Plan satisfies the Qualification Requirements or
the Section 403(b) Requirements, respectively, that are being reviewed by the IRS for
the Cycle for which the Opinion Letter is being issued.

11

(14) Pre-approved Plan. The term “Pre-approved Plan” means a plan (including
a plan that is word-for-word identical to, or a Minor Modification of, a Mass Submitter’s
plan) that has received an Opinion Letter under this revenue procedure (or a
predecessor of this revenue procedure) and that is made available by a Provider for
adoption by Employers. A Pre-approved Plan includes a plan covering self-employed
individuals. A Pre-approved Plan may be either a Qualified Pre-approved Plan or a
Section 403(b) Pre-approved Plan. A Qualified Pre-approved Plan or a Section 403(b)
Pre-approved Plan may be either a Standardized Plan or a Nonstandardized Plan. A
Qualified Pre-approved Plan or a Section 403(b) Pre-approved Plan may be structured
as either an Adoption Agreement Plan or a Single Document Plan.
(15) Provider.
(a) The term “Provider” means any person (including, if applicable, a Mass
Submitter) that:
(i) Has an established place of business in the United States where it is
accessible during every business day, and
(ii) Represents to the IRS in its application for an Opinion Letter that it has
at least 15 Employer-clients (except as set forth in section 4.01(15)(a)(ii)(A) regarding a
Retirement Income Account), each of which is reasonably expected to adopt one of the
Provider’s Pre-approved Plans.
(A) A person that is otherwise eligible to be a Provider generally may
apply for an Opinion Letter for a Section 403(b) Pre-approved Plan that is intended to
be a Retirement Income Account without satisfying the 15-Employer-client requirement
with respect to that plan. However, if that person also applies for an Opinion Letter with
respect to a Section 403(b) Pre-approved Plan that is not a Retirement Income Account,
the person would need to meet the 15-Employer-client requirement for the plan that is
not a Retirement Income Account.
(B) The IRS reserves the right to request from the Provider at any time
a list of the Employers that have adopted or are expected to adopt the Provider’s plans,
including the Employers’ business addresses and employer identification numbers.
(b) Notwithstanding the preceding provisions of this section 4.01(15), any
person that has an established place of business in the United States where it is
accessible during every business day may offer a plan that is word-for-word identical to
a Mass Submitter’s plan as an identical adopter or a plan that includes Minor
Modifications to a Mass Submitter’s plan as a minor modifier adopter regardless of the
number of Employers that are expected to adopt the plan. See section 15 for rules
relating to a Mass Submitter’s plans, including procedures for identical adopters and
minor modifier adopters of a Mass Submitter’s plans.

12

(c) By submitting an application for an Opinion Letter for a Pre-approved Plan
under this revenue procedure (or by having an application filed on its behalf by a Mass
Submitter as an identical adopter or a minor modifier adopter), a person represents to
the IRS that it is a Provider, and that it agrees to comply with any requirements imposed
on Providers by this revenue procedure. Failure to comply with these requirements may
result in the loss of eligibility to offer Pre-approved Plans and the revocation of Opinion
Letters that have been issued to the Provider.
(16) Related Employers. For a Pre-approved Plan other than a Section 403(b)
Pre-approved Plan that is a Governmental Plan, the term “Related Employer” means an
employer that is aggregated with the Adopting Employer under § 414(b), (c), (m), and
(o) and the regulations thereunder. For a Section 403(b) Pre-approved Plan that is a
Governmental Plan, the term “Related Employer” means an employer that is
aggregated with the Adopting Employer in a manner consistent with Notice 89-23,
1989-1 CB 654.
(17) Remedial Amendment Cycle. The term “Remedial Amendment Cycle”
means the time period designated by the IRS during which (1) a Provider submits a
proposed Pre-approved Plan for review and approval by the IRS, (2) the plan, once
approved, is adopted by Employers, and (3) an Adopting Employer of a newly approved
Pre-approved Plan generally may submit an application for a determination letter (if
otherwise permitted). See section 5.
(18) Remedial Amendment Period. The term “Remedial Amendment Period”
means the period during which an employer maintaining a plan may correct
Disqualifying Provisions or Form Defects, as applicable, in its plan retroactive to the
beginning of that period. As part of the correction of a Disqualifying Provision or a Form
Defect within the applicable Remedial Amendment Period, an Adopting Employer is
considered to have satisfied the Qualification Requirements or Section 403(b)
Requirements, as applicable, if all provisions of the plan that are necessary to satisfy
those requirements have been adopted and made effective in form and operation from
the beginning of the Remedial Amendment Period. See section 6.
(19) Single Document Plan. The term “Single Document Plan” means a plan
offered by a Provider that consists of a single plan document without an adoption
agreement. A Single Document Plan may include alternate paragraphs and options that
may be selected by an Adopting Employer (including blanks to be completed by the
Adopting Employer in accordance with specified parameters).
(20) Standardized Plan. The term “Standardized Plan” means a Pre-approved
Plan that satisfies the requirements set forth in section 9.03 or 9.07, as applicable. A
Qualified Pre-approved Plan that includes an ESOP or that is a Statutory Hybrid Plan
may not be a Standardized Plan.

13

(21) Submission Period. The term “Submission Period” means the period during
which a Provider (including a Mass Submitter) may apply for an Opinion Letter for a
particular Cycle. See section 5.02; also see section 16 regarding filings made after the
Submission Period.
.02 Definitions applicable solely to Qualified Pre-approved Plans. For purposes of
this revenue procedure, the following definitions apply to Qualified Pre-approved Plans
and do not apply to Section 403(b) Pre-approved Plans.
(1) Disqualifying Provision.
(a) In general. For a Qualified Pre-approved Plan, the term “Disqualifying
Provision” means:
(i) 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;
(ii) A plan provision that, pursuant to § 1.401(b)-1(b)(3), has been
designated by the Commissioner, in guidance published in the IRB, as a disqualifying
provision by reason of a change in those requirements; or
(iii) The absence from a plan of a provision required by (or, if applicable,
integral to) a change in the qualification requirements of the Code.
(b) Designation of Disqualifying Provisions. Pursuant to § 1.401(b)-1(b)(3),
the IRS designates a plan provision as a Disqualifying Provision if it:
(i) 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; or
(ii) Is integral to a Disqualifying Provision described in
section 4.02(1)(b)(i).
(2) Qualified Pre-approved Plan. The term “Qualified Pre-approved Plan” means
a Pre-approved Plan that is intended to meet the Qualification Requirements.
(3) Qualification Requirements. The term “Qualification Requirements” means
the requirements of §§ 401(a), 403(a), 409, and 4975(e)(7), including requirements
provided by statute, or in regulations or other guidance published in the IRB. 6
Under this definition, a change in Qualification Requirements includes a change provided by statute, or
in regulations or other guidance published in the IRB, that affects a requirement of § 401(a), 403(a), 409,
6

14

(4) Trust or Custodial Account Document. The term “Trust or Custodial Account
Document” means the separate portion of a Qualified Pre-approved Plan that includes
the trust agreement or custodial account agreement and includes provisions covering
such matters as the powers and duties of trustees, investment authority, and the kinds
of investments that may be made. All provisions of the Trust or Custodial Account
Document must be applicable to all Adopting Employers of that trust or custodial
account. The trust agreement or custodial account agreement must be in a document
separate from the plan document that is submitted for an Opinion Letter.
(5) Definitions related to ESOPs.
(a) ESOP. The term “ESOP” means an employee stock ownership plan
within the meaning of § 4975(e)(7).
(b) Exempt Loan. The term “Exempt Loan” means a loan described in
§ 4975(d)(3) that satisfies the requirements for exemption from the excise tax imposed
under § 4975(a) and (b) described in § 54.4975-7(b).
(c) Readily Tradable Employer Securities. The term “Readily Tradable
Employer Securities” means publicly traded securities as defined in
§ 1.401(a)(35)-1(f)(5).
(6) Definitions related to Hybrid Plans.
(a) Cash Balance Formula. The term “Cash Balance Formula” means a
statutory hybrid benefit formula, as defined in § 1.411(a)(13)-1(d)(4), that is used to
determine all or any part of a participant’s accumulated benefit, and under which the
accumulated benefit provided under the formula is expressed as the current balance of
a hypothetical account maintained for the participant. The hypothetical account balance
generally consists of Principal Credits and Interest Credits.
(b) Cash Balance Plan. The term “Cash Balance Plan” means a defined
benefit plan that includes a Cash Balance Formula.
(c) Conversion Amendment. The term “Conversion Amendment” means an
amendment defined in § 1.411(b)(5)-1(c)(4). Under this regulation, a conversion
amendment is an amendment (i) that reduces or eliminates the benefits that, but for the
amendment, a participant would have earned after the effective date of the amendment
under a benefit formula that is not a statutory hybrid benefit formula within the meaning
of § 1.411(a)(13)-1(d)(4), and (ii) with respect to which, after the effective date of the
amendment, all or a portion of the participant’s benefit accruals under the plan are
or 4975(e)(7), without regard to whether the change results in a Disqualifying Provision or merely permits
the adoption of a Discretionary Amendment.

15

determined under a statutory hybrid benefit formula.
(d) Interest Credit. The term “Interest Credit” means an interest credit as
defined in § 1.411(b)(5)-1(d)(1)(ii)(A). Under this regulation, an interest credit is an
adjustment to a participant’s hypothetical account balance for a period that is not
conditioned on service and that is determined by applying a rate of interest or rate of
return to the participant’s hypothetical account balance as of the beginning of the
period.
(e) Offset. The term “Offset” means the reduction of benefits under an
Employer’s defined benefit plan by an amount attributable to the benefits payable under
another plan of the Employer.
(f) Principal Credit. The term “Principal Credit” means a principal credit as
defined in § 1.411(b)(5)-1(d)(1)(ii)(D), which includes any increase in a participant’s
hypothetical account balance that is not an Interest Credit.
(g) Statutory Hybrid Plan. The term “Statutory Hybrid Plan” means a defined
benefit plan that includes a statutory hybrid benefit formula as defined in
§ 1.411(a)(13)-1(d)(4).
(h) Variable Annuity Plan. The term “Variable Annuity Plan” means any
defined benefit plan that includes a variable annuity benefit formula as defined in
§ 1.411(a)(13)-1(d)(6).
.03 Definitions applicable solely to Section 403(b) Pre-approved Plans. For
purposes of this revenue procedure, the following definitions apply to Section 403(b)
Pre-approved Plans, and do not apply to Qualified Pre-approved Plans:
(1) Church. The term “Church” means a church within the meaning of
§ 3121(w)(3)(A).
(2) Form Defect. The term “Form Defect” means:
(a) 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 form of the § 403(b) plan to fail to
satisfy the Section 403(b) Requirements applicable as of the date the plan or
amendment is first made effective;
(b) A plan provision that:
(i) Results in the failure of the form of the § 403(b) plan to satisfy the
Section 403(b) Requirements by reason of a change in those requirements; or
(ii) Is integral to a Form Defect described in section 4.03(2)(b)(i); or

16

(c) The absence from a plan of a provision required by (or, if applicable,
integral to) a change in the Section 403(b) Requirements.
(3) Investment Arrangement. The term “Investment Arrangement” means a
funding arrangement under a Section 403(b) Pre-approved Plan. An Investment
Arrangement may be an annuity contract under § 1.403(b)-2(b)(2), a custodial account
under § 403(b)(7), or a Retirement Income Account.
(4) Non-qualified Church-Controlled Organization or Non-QCCO. The term “Nonqualified Church-Controlled Organization” or “Non-QCCO” means a church-controlled
tax-exempt organization described in § 501(c)(3) that is not a QCCO.
(5) Qualified Church-Controlled Organization or QCCO. The term “Qualified
Church-Controlled Organization” or “QCCO” means a church-controlled tax-exempt
organization described in § 501(c)(3) that is a qualified church-controlled organization
within the meaning of § 3121(w)(3)(B).
(6) Retirement Income Account. The term “Retirement Income Account” means
a defined contribution program established or maintained by a Church, including an
organization described in § 414(e)(3)(A), to provide benefits under § 403(b) for an
employee described in § 403(b)(1) (including an employee described in § 414(e)(3)(B))
or his or her beneficiaries, as described in § 403(b)(9).
(7) Section 403(b) Pre-approved Plan. The term “Section 403(b) Pre-approved
Plan” means a Pre-approved Plan that is intended to meet the Section 403(b)
Requirements.
(8) Section 403(b) Requirements. The term “Section 403(b) Requirements”
means the requirements of § 403(b), including requirements provided in the Code, or in
regulations or other guidance published in the IRB. 7
PART II.

REMEDIAL AMENDMENT CYCLES AND REMEDIAL AMENDMENT
PERIODS

SECTION 5.

REMEDIAL AMENDMENT CYCLE SYSTEM

.01 Remedial Amendment Cycles. Under this revenue procedure, every Preapproved Plan has a recurring Remedial Amendment Cycle. Providers may apply for
new Opinion Letters for each Cycle. Adopting Employers of Pre-approved Plans, if
otherwise eligible under section 25, may apply for determination letters once each
Under this definition, a change in Section 403(b) Requirements includes a statutory, regulatory, or other
guidance change that affects a requirement of § 403(b), without regard to whether the change results in a
Form Defect or merely permits the adoption of a Discretionary Amendment.
7

17

Cycle. Defined contribution Qualified Pre-approved Plans, defined benefit Qualified Preapproved Plans, and Section 403(b) Pre-approved Plans each have different Cycles.
While the same Cycle applies with respect to all defined contribution Qualified Preapproved Plans, separate Cycles apply with respect to all defined benefit Qualified Preapproved Plans and with respect to all Section 403(b) Pre-approved Plans.
.02 Stages of Remedial Amendment Cycle. For each Cycle, a Provider may apply
for an Opinion Letter during the Submission Period, which generally begins at or shortly
after the beginning of each Cycle. When the IRS’s review of the Pre-approved Plans
that are submitted during a Cycle is near completion, the IRS will announce the
Employer Adoption Window for that Cycle, during which an Adopting Employer must
adopt a newly approved Pre-approved Plan for that Cycle in order to continue to have a
Pre-approved Plan. The Employer Adoption Window is also generally the period during
which an Adopting Employer of a newly approved Pre-approved Plan may submit for a
determination letter, if applicable, pursuant to section 25. 8 The deadline to adopt a
newly approved Pre-approved Plan is expected to be a uniform date that will apply to all
Adopting Employers. It is expected that the Employer Adoption Window will provide
virtually all Employers approximately two years to adopt a newly approved Preapproved Plan and file for a determination letter, if applicable. A Cycle ends at the end
of the last day of the Employer Adoption Window for that Cycle. The next Cycle begins
on the following day.
.03 Cycle 4 Submission Period for defined contribution Qualified Pre-approved
Plans. Pursuant to this revenue procedure, the Submission Period for a Provider of a
defined contribution Qualified Pre-approved Plan to apply for a Cycle 4 Opinion Letter
begins on February 1, 2024, and ends on January 31, 2025. A Provider of a defined
contribution Qualified Pre-approved Plan may still apply for a Cycle 4 Opinion Letter
after the Submission Period. See section 16 regarding filings made after the Submission
Period.
SECTION 6.

REMEDIAL AMENDMENT PERIODS

.01 In general. The provisions of this section 6 set forth the Remedial Amendment
Periods for Disqualifying Provisions and Form Defects for Pre-approved Plans. A
Qualified Pre-approved Plan that does not satisfy a Qualification Requirement or a
Section 403(b) Pre-approved Plan that does not satisfy a Section 403(b) Requirement
on any day solely as a result of a Disqualifying Provision or Form Defect, as applicable,
is considered to have satisfied the Qualification Requirement or Section 403(b)
Requirement on that date if, on or before the last day of the Remedial Amendment
Period with respect to the Disqualifying Provision or Form Defect, all provisions of the
plan that are necessary to satisfy the Qualification Requirement or Section 403(b)
Requirement, as applicable, have been adopted and made effective in form and
But see, section 25 for when an Adopting Employer may apply for a determination letter outside of the
Employer Adoption Window.
8

18

operation for the whole of the period. A Pre-approved Plan for which an Adopting
Employer does not correct a Disqualifying Provision or Form Defect within the
applicable Remedial Amendment Period is not considered to satisfy the Qualification
Requirements or Section 403(b) Requirements, as applicable.
.02 Beginning dates of the Remedial Amendment Period.
(1) Disqualifying Provisions. Pursuant to § 1.401(b)-1(d)(1), unless another time
is specified by the Commissioner in guidance published in the IRB, the Remedial
Amendment Period for a Disqualifying Provision begins:
(a) In the case of a Disqualifying Provision with respect to a provision of, or
absence of a provision from, a new plan, on the date the plan is put into effect;
(b) In the case of a Disqualifying Provision with respect to an amendment to
an existing plan (other than a Disqualifying Provision that is related to a change in
Qualification Requirements, or that is integral to such a change, as described in
section 4.02(1)(b)), on the date the plan amendment is adopted or put into effect,
whichever is earlier;
(c) In the case of a Disqualifying Provision with respect to a provision that
fails to satisfy the Qualification Requirements by reason of a change in those
requirements, on the date on which the change effected by an amendment to the Code
or a change in requirements provided in regulations or other guidance published in the
IRB became effective with respect to the plan; or
(d) In the case of a Disqualifying Provision with respect to a provision that is
integral to a Qualification Requirement that has been changed, on the first day on which
the plan was operated in accordance with such provision, as amended.
(2) Form Defects. Unless another time is specified by the Commissioner in
guidance published in the IRB, the Remedial Amendment Period for a Form Defect
begins:
(a) In the case of a Form Defect with respect to a provision of, or absence of
a provision from, a new plan, on the date the plan is put into effect;
(b) In the case of a Form Defect with respect to an amendment to an existing
plan (other than a Form Defect that is related to a change in Section 403(b)
Requirements, or that is integral to such a change, as described in section 4.03(2)(b)),
on the date the plan amendment is adopted or put into effect, whichever is earlier;
(c) In the case of a Form Defect with respect to a provision that fails to satisfy
the Section 403(b) Requirements by reason of a change in those requirements, on the
date on which the change effected by an amendment to the Code or a change in

19

requirements provided in regulations or other guidance published in the IRB became
effective with respect to the plan; or
(d) In the case of a Form Defect with respect to a provision that is integral to
a Section 403(b) Requirement that has been changed, on the first day on which the plan
was operated in accordance with such provision, as amended.
.03 Expiration of the Remedial Amendment Period.
(1) In general. Provided an Interim Amendment, if applicable, is made timely,
and except as otherwise provided in section 6.03(2), by statute, or in regulations or
other guidance published in the IRB, the Remedial Amendment Period for a
Disqualifying Provision or a Form Defect, as applicable, expires at the later of (a) the
end of the Cycle that includes the date on which the Remedial Amendment Period
would have ended if the plan were an individually designed plan, 9 or (b) the end of the
first Cycle in which an application for an Opinion Letter that considers the Disqualifying
Provision or Form Defect may be submitted. This Remedial Amendment Period applies
regardless of whether the Disqualifying Provision or Form Defect relates to a new plan
or is due to an amendment to an existing plan (without regard to whether the
amendment was required to be adopted), provided that the plan or amendment was
adopted timely and in good faith with the intent of complying with the Qualification
Requirements or Section 403(b) Requirements, as applicable. 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 complying with the
Qualification Requirements or Section 403(b) Requirements, as applicable. If an Interim
Amendment is not made timely, then the Remedial Amendment Period for the
Disqualifying Provision or the Form Defect, as applicable, expires at the time of the
Interim Amendment deadline set forth in section 7.
(2) Discretionary Amendments made by an Adopting Employer. For a
Discretionary Amendment made by an Adopting Employer (not by the Provider), the
Remedial Amendment Period for a Disqualifying Provision or a Form Defect, as
applicable, arising from that Discretionary Amendment expires at the end of the Cycle
that includes the date on which the Remedial Amendment Period would have ended if
the plan were an individually designed plan.
.04 Interim Amendment requirement. To promote compliance during a Cycle with a
change in Qualification Requirements or Section 403(b) Requirements that affects
provisions of a written plan document, a Provider (or Adopting Employer, if applicable)
of a Pre-approved Plan must adopt an Interim Amendment with respect to the change
within the time period set forth in section 7, unless the Provider (or Adopting Employer,

For the Remedial Amendment Period rules for individually designed qualified and § 403(b) plans, see
Rev. Proc. 2022-40.
9

20

if applicable) reasonably and in good faith determines that no amendment is required. 10
The IRS will make the final determination in all cases as to whether the determination
that no Interim Amendment was required is reasonable and in good faith. If an Interim
Amendment is not adopted by the end of the time period set forth in section 7, the
Provider (or Adopting Employer, if applicable) must correct this failure to timely adopt
the Interim Amendment within two years after the end of the time period set forth in
section 7; otherwise the Adopting Employer’s plan will be treated as an individually
designed plan at the end of that two-year period. See section 13.05 for a Pre-approved
Plan treated as individually designed. 11
.05 Terminating plan. Notwithstanding any other provision of this section 6, the
termination of a Pre-approved Plan ends the Remedial Amendment Period for each
Disqualifying Provision or Form Defect of the plan and, thus, generally will shorten the
Remedial Amendment Period. 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 or Section 403(b)
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
Cumulative List described in section 17, Operational Compliance List described in
section 14.09, or Required Amendments List described in Rev. Proc. 2022-40. 12
.06 Circumstances in which a Disqualifying Provision or Form Defect may not be
corrected retroactively during a Remedial Amendment Period. If it is not possible to
amend a plan retroactively during a Remedial Amendment Period so that all provisions
of the plan that are necessary to satisfy Qualification Requirements or Section 403(b)
Requirements related to the Disqualifying Provision or Form Defect, as applicable, are
made effective in operation for the whole Remedial Amendment Period, then the
Disqualifying Provision or Form Defect may not be corrected retroactively in order for
the form of the plan to satisfy the Qualification Requirements or Section 403(b)
Requirements, as applicable, even if the Adopting Employer adopts a retroactive plan
amendment that, in form, appears to satisfy those requirements. An Adopting Employer
maintaining a Pre-approved Plan that cannot be corrected by an amendment during the
applicable Remedial Amendment Period may be able to correct the Disqualifying
10
See section 14.09 regarding the Operational Compliance List, which identifies changes to Qualification
Requirements or Section 403(b) Requirements that are effective during a calendar year.
11
During the two-year period, the plan will not cease to be a Pre-approved Plan solely because it has
failed to adopt the Interim Amendment. Once a plan is treated as an individually designed plan, the plan
will be subject to the remedial amendment period rules applicable to individually designed plans and
therefore will have a failure to satisfy the Qualification Requirements or Section 403(b) Requirements for
failing to have adopted the Interim Amendment (and must use EPCRS to correct that failure in order to
adopt a Pre-approved Plan again).
12
The Required Amendments List establishes the end of the Remedial Amendment Period and the plan
amendment deadline for changes in qualification requirements and § 403(b) requirements set forth on the
list for qualified individually designed plans and § 403(b) individually designed plans, respectively. The
Required Amendments Lists can be found at https://www.irs.gov/retirement-plans/required-amendmentslist.

21

Provision or Form Defect under EPCRS. See Rev. Proc. 2021-30, 2021-31 IRB 172 (or
its successor).
SECTION 7.

PLAN AMENDMENT DEADLINES

.01 Plan amendment deadline. Except as otherwise provided in section 7.02, the
deadline for the timely adoption of an amendment for a Pre-approved Plan is
determined as follows.
(1) Pre-approved Plan that is not a Governmental Plan.
(a) Interim Amendments. For a Pre-approved Plan that is not a
Governmental Plan, a Provider (or the Adopting Employer, if applicable) adopts an
Interim Amendment timely if the plan amendment is adopted by the last day of the
second calendar year that begins after the issuance of the Required Amendments List
(described in Rev. Proc. 2022-40) in which the change in Qualification Requirements or
Section 403(b) Requirements appears.
(b) Discretionary Amendments. For a Pre-approved Plan that is not a
Governmental Plan, in the case of a Discretionary Amendment, an Adopting Employer
adopts the amendment timely if the Adopting Employer (or a Provider, if applicable)
adopts the plan amendment by 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 2023 is December 31, 2023.
(2) Pre-approved plan that is a Governmental Plan.
(a) Interim Amendments. For a Governmental Plan, in the case of an Interim
Amendment, a Provider (or the Adopting Employer, if applicable) adopts the
amendment timely if the plan amendment is adopted by the later of:
(i) The last day of the second calendar year that begins after the issuance
of the Required Amendments List (described in Rev. Proc. 2022-40) in which the
change in Qualification Requirements or Section 403(b) Requirements appears; or
(ii) To the extent any action is required to be taken by the Adopting
Employer in order to adopt the Interim Amendment, 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 the plan amendment becomes effective.
(b) Discretionary Amendments. For a Governmental Plan, in the case of a
Discretionary Amendment, an Adopting Employer (or a Provider, if applicable) adopts

22

the plan amendment timely if the Adopting Employer adopts the plan amendment by the
later of:
(i) The end of the plan year in which the plan amendment is operationally
put into effect; or
(ii) To the extent any action is required to be taken by the Adopting
Employer in order to adopt the Discretionary Amendment, 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.
.02 Exceptions to section 7.01 plan amendment deadlines. Section 7.01 applies
unless (1) a statutory provision, or regulations or other guidance published in the IRB,
sets forth a deadline to timely adopt a Discretionary Amendment with respect to a plan
year that is different from the deadlines under section 7.01, or (2) a statutory provision,
or regulations or other guidance published in the IRB, sets forth a deadline to timely
adopt a particular type of Interim Amendment that is different from the deadlines under
section 7.01.
SECTION 8.

SCHEDULES FOR REMEDIAL AMENDMENT CYCLES

The schedules for Pre-approved Plan Cycles are available at
https://www.irs.gov/retirement-plans/determination-opinion-and-advisory-letters-6-yearcycle-for-pre-approved-plans-plans. The IRS may revise the schedules to respond to
changing circumstances and the needs of Adopting Employers, as necessary. The IRS
will announce any such revisions and the timing of the Submission Period for each
Cycle, which will be reflected in guidance published in the IRB (either in a revenue
procedure, an announcement, or in the applicable Cumulative List (which will be issued
prior to a Submission Period)).
PART III.

PROCEDURES FOR A PROVIDER APPLYING FOR AN OPINION
LETTER

SECTION 9.

PROVISIONS REQUIRED IN PRE-APPROVED PLANS

.01 Provisions required in Pre-approved Plans.
(1) Provisions required in Qualified Pre-approved Plans. Each Qualified Preapproved Plan must comply with the requirements set forth in section 9.02. Section 9.03
sets forth additional provisions required for a Qualified Pre-approved Plan that is a
Standardized Plan. Section 9.04 sets forth additional provisions required for a Qualified
Pre-approved Plan that includes an ESOP. Section 9.05 sets forth additional provisions
required in a Qualified Pre-approved Plan that includes a Cash Balance Formula.
(2) Provisions required in Section 403(b) Pre-approved Plans. Each

23

Section 403(b) Pre-approved Plan must comply with the requirements set forth in
section 9.06. Section 9.07 sets forth additional provisions required for a Section 403(b)
Pre-approved Plan that is a Standardized Plan. Section 9.08 sets forth additional
provisions for a Section 403(b) Pre-approved Plan that is a Retirement Income Account.
.02 Provisions required in a Qualified Pre-approved Plan.
(1) Provider amendments. Each Qualified Pre-approved Plan must include a
procedure for amendments by the Provider, so that a Provider may modify the plan to
reflect changes provided by statute, or in regulations or other guidance published in the
IRB, and so that any correction of the plan may be applied to all Adopting Employers.
The procedure for amendments by the Provider also must state that, for purposes of the
Pre-approved Plan program, the Provider will no longer have the authority to amend the
plan on behalf of the Adopting Employer as of the date the plan is treated as an
individually designed plan pursuant to section 13.05.
(2) Anti-cutback and vesting schedule change provision. Each Qualified Preapproved Plan must specifically provide for the protection required under § 411(a)(10)
and (d)(6) in the event that the Adopting Employer amends the plan (including by
revising the options selected in the adoption agreement or adopting a new plan). A plan
may not be amended in a manner that could result in the elimination of a benefit to the
extent the benefit is required to be protected under § 411(d)(6) with respect to the plan
of any Adopting Employer, unless the amendment is permitted under § 1.401(a)-4 and
either § 1.411(d)-3 or 1.411(d)-4. See section 9.02(5) for anti-cutback plan provisions
that are required in situations in which a plan becomes top-heavy. See § 411(d)(6)(C)
and § 1.411(d)-4, Q&A-2(d), for certain exceptions applicable to ESOPs.
(3) Adopting Employer modification to satisfy §§ 415 and 416. Each Qualified
Pre-approved Plan must provide that plan provisions may be amended by the Adopting
Employer to the extent necessary to satisfy § 415 or 416 because of the required
aggregation of multiple plans under these sections. Generally, a space should be
reserved in the plan with instructions for the Adopting Employer to add such language
as necessary to satisfy §§ 415 and 416, if applicable. In addition, a space must be
provided in the plan for the Adopting Employer to specify the interest rate and mortality
tables used for purposes of establishing the present value of accrued benefits in order
to compute the top-heavy ratio under § 416, if applicable. Such a space must be
included in both defined contribution plans and defined benefit plans. These provisions
must be included in the adoption agreement of an Adoption Agreement Plan.
(4) Aggregation for § 415 compliance. Each Qualified Pre-approved Plan must
provide for aggregation of all of an Adopting Employer’s defined contribution plans and
all of an Adopting Employer’s defined benefit plans as necessary to satisfy § 415(b) and
(c) (each as modified by § 415(h)), and § 415(f).
(5) Top-heavy requirements. Each Qualified Pre-approved Plan must either

24

provide that all of the additional requirements applicable to top-heavy plans (described
in § 416) apply at all times, or provide that such requirements apply automatically if the
plan is top-heavy, regardless of how the options in the plan are completed. In the latter
case, all of the requirements for determining whether the plan is top-heavy must be
included in the plan. (See Questions T-35 and T-36 of § 1.416-1.) In addition, a plan
that is subject to the top-heavy requirements and that does not include vesting rules for
all years that are at least as favorable to participants as those set forth in § 416(b) must
specifically provide that any vesting that occurs while the plan is top-heavy will not be
reduced if the plan ceases to be top-heavy.
(6) Provision regarding reliance. Each Qualified Pre-approved Plan must
include, in close proximity to the signature line, a statement that describes the
limitations on Adopting Employer reliance on an Opinion Letter. See section 12.
(7) Provision regarding conflicting trust provisions. Each Qualified Pre-approved
Plan must include a statement that the provisions of the single plan document or basic
plan document override any conflicting provision included in Trust or Custodial Account
Documents used with the plan. 13
(8) Dated signatures and adoption agreement provisions. Each Qualified Preapproved Plan must include an Adopting Employer signature and date line. The plan
also must include a statement that the Provider will inform the Adopting Employer of any
amendments made to the plan or of the discontinuance of the plan. The Adopting
Employer must sign and date the adoption agreement or signature page of the plan
when it first adopts the plan and must complete, sign, and date a new adoption
agreement or signature page if the plan has been restated. In addition, the Adopting
Employer must complete a new dated adoption agreement or signature page if the
Adopting Employer modifies any prior elections or makes new elections. The signature
requirement may be satisfied by an electronic signature that reliably authenticates and
verifies the adoption of the adoption agreement or single plan document, or the
restatement, amendment, or modification thereof, by the Adopting Employer. In the
case of an Adoption Agreement Plan, the adoption agreement must state that it is to be
used with only one basic plan document and must identify that document. In addition,
the adoption agreement must include a cautionary statement to the effect that the failure
to properly complete the adoption agreement may result in failure of the form of the plan
to meet the Qualification Requirements.
(9) Provider contact information. Each Qualified Pre-approved Plan must include
the Provider’s name, address, and telephone number (or a space for the address and
telephone number of the Provider’s authorized representative) for inquiries by Adopting
Accordingly, if a plan is operated in a manner that is inconsistent with a provision of the single plan
document or basic plan document, the plan will incur an operational failure even if the plan is operated in
a manner consistent with a provision of a Trust or Custodial Account Document that conflicts with the
provision of the single plan document or basic plan document.
13

25

Employers regarding the adoption of the plan, the meaning of plan provisions, or the
effect of the Opinion Letter. Each Qualified Pre-approved Plan may provide additional
contact information (such as an email address).
(10) Definition of employee
(a) In general. Each Qualified Pre-approved Plan must define an employee
as any employee of the Adopting Employer maintaining the plan or of any Related
Employer. The definition of employee also must include any individual treated under
§ 414(n) or (o) as an employee of any Employer described in the preceding sentence.
(b) ESOPs. With respect to a Qualified Pre-approved Plan that includes an
ESOP, employees who meet the definition of employee in section 9.02(10)(a) may not
participate in the ESOP unless they are employed by the corporation that issues the
stock held by the ESOP or by any corporation that is a member of the same controlled
group of corporations (within the meaning of § 1563(a), as modified by § 409(l)(4)(B)
and (C) and as determined without regard to § 1563(a)(4) and (e)(3)(C)). For all other
purposes under the ESOP, including nondiscrimination and coverage, employees who
meet the definition of employee in section 9.02(10)(a) are treated as employees.
(11) Crediting of service taking into account § 414(b), (c), (m), (n), and (o). Each
Qualified Pre-approved Plan must credit all service with any Related Employer as
service with the Adopting Employer maintaining the plan. In addition, in the case of an
individual treated under § 414(n) or (o) as an employee of any Employer described in
the previous sentence, service with that Employer must be credited to such individual.
(12) Uniformed Services Employment and Reemployment Rights Act and
§ 414(u). Each Qualified Pre-approved Plan must include a provision reflecting the
requirements of § 414(u). See Rev. Proc. 96-49, 1996-2 CB 369.
(13) Normal retirement age. Each Qualified Pre-approved Plan that is a pension
plan and that is not a Governmental Plan must have a normal retirement age that is not
less than age 55.
.03 Additional provisions required in a Qualified Pre-approved Plan that is intended
to be a Standardized Plan. Each Qualified Pre-approved Plan that is intended to be a
Standardized Plan must meet the following requirements:
(1) Plan benefits all employees. Under the provisions governing eligibility and
participation, the plan by its terms must benefit all employees (regardless of whether
any Employer is treated as operating separate lines of business under § 414(r)) except
those employees that may be excluded under § 410(a)(1) or (b)(3). The plan may
provide options as to whether some or all of the employees described in § 410(a)(1) or
(b)(3) are excluded, provided that the criteria for excluding employees described in
§ 410(a)(1) or (b)(3) apply uniformly to all employees. A Standardized Plan generally

26

may not deny an accrual or allocation to an employee eligible to participate merely
because the employee is not an active employee on the last day of the plan year or has
failed to complete a specified number of hours of service during the year. However, the
plan may deny an allocation or accrual to an employee who is eligible to participate if
the employee terminates service during the plan year with not more than 500 hours of
service and is not an active employee on the last day of the plan year. A Qualified Preapproved Plan will not fail to satisfy the requirements of this section 9.03(1) merely
because the plan provides, either as the result of an elective provision or by default in
the absence of an election to the contrary, that individuals who become employees,
within the meaning of section 9.02(10)(a), as the result of a transaction described in
§ 410(b)(6)(C) are excluded from eligibility to participate in the plan during the period
beginning on the date of the transaction and ending on a date that is not later than the
earlier of the last day of the first plan year beginning after the date of the transaction or
the date of a significant change in the plan or in the coverage of the plan. A transaction
described in § 410(b)(6)(C) is an asset or stock acquisition, merger, or other similar
transaction involving a change in the employer of the employees of a trade or business.
(2) Eligibility is not more favorable for highly compensated employees. The
eligibility requirements under the plan are not more favorable for highly compensated
employees (as defined in § 414(q)) than for other employees.
(3) Allocations and benefits are based on total compensation. Under the plan,
allocations, in the case of a defined contribution plan (other than any cash or deferred
arrangement portion), or benefits, in the case of a defined benefit plan, are determined
on the basis of total compensation. The plan must provide that, for purposes of
allocation, the definition of total compensation is “participant’s compensation” within the
meaning of § 415(c)(3), or compensation that otherwise satisfies § 414(s) and
§ 1.414(s)-1(c).
(4) Section 401(a)(4) safe harbors. Unless the plan is a target benefit plan or a
§ 401(k) and/or 401(m) plan, the plan must satisfy, by its terms, one of the designbased safe harbors described in § 1.401(a)(4)-2(b)(2) (taking into account
§ 1.401(a)(4)-2(b)(4)) or § 1.401(a)(4)-3(b)(3), (4), or (5) (taking into account
§ 1.401(a)(4)-3(b)(6)).
(5) Benefits, rights and features are available to all employees. All benefits,
rights, and features under the plan (other than those, if any, that have been
prospectively eliminated) are currently available to all employees benefiting under the
plan. (For information regarding benefits, rights, and features and the determination of
current availability, see § 1.401(a)(4)-4.)
(6) Past service credit satisfies safe harbor standard. Any past service credit
under the plan satisfies the safe harbor in § 1.401(a)(4)-5(a)(3).
(7) Hardship distribution satisfies safe-harbor standards. Any hardship

27

distribution satisfies the safe harbor standards in § 1.401(k)-1(d)(3).
.04 Additional provisions required in a Qualified Pre-approved Plan that includes an
ESOP. Each Qualified Pre-approved Plan that includes an ESOP feature must include
the following provisions:
(1) Identification as an ESOP. A statement that the plan is an employee stock
ownership plan within the meaning of § 4975(e)(7) and is designed to invest primarily in
employer stock;
(2) Definition of employer stock. A provision that defines employer stock in
accordance with § 409(l)(1) or (2);
(3) Diversification. Provisions that meet the diversification requirements of
§ 401(a)(28)(B) or, if applicable, § 401(a)(35);
(4) Valuation, independent appraiser, and allocation of earnings. Provisions that
meet the valuation, independent appraiser, and allocation of earnings requirements set
forth in § 401(a)(28)(C), § 54.4975-11(d)(5), and Rev. Rul. 80-155, 1980-1 CB 84;
(5) Voting. Provisions that meet the voting requirements of § 409(e);
(6) Right-to-demand and put-option. Provisions that meet the right-to-demand
and put-option requirements of § 409(h), to the extent applicable;
(7) Distribution. Provisions that meet the distribution requirements of § 409(o);
(8) Exempt loans. Provisions that set forth the requirements relating to exempt
loans as described in § 4975(d)(3), § 54.4975-7, and § 54.4975-11(c);
(9) Annual addition. Provisions that meet the ESOP annual addition
requirements described in § 1.415(c)-1(f) and, if the ESOP is maintained by an
employer that is a C corporation (as defined in § 1361(a)(2)), the requirements
described in § 415(c)(6);
(10) Forfeitures. If an ESOP provides for forfeitures, provisions that meet the
forfeiture requirement of § 54.4975-11(d)(4);
(11) S corporation employer securities. If an ESOP holds employer securities
consisting of stock in an S corporation (as defined in § 1361(a)(1)), provisions that meet
the requirements of § 409(p) and § 1.409(p)-1;
(12) C corporation employers. If an ESOP is maintained by employers that are C
corporations, provisions that meet the requirements of § 409(n); and

28

(13) Identification as C or S corporation. Provisions (in the plan document or
adoption agreement) that identify the Adopting Employer as either a C corporation or an
S corporation.
(14) Definition of employee. See section 9.02(10)(b).
.05 Additional provisions required in a Qualified Pre-approved Plan that includes a
Cash Balance Plan
(1) Prior benefit structures protected. All Cash Balance Plans must ensure
compliance with the anti-cutback provisions of § 411(d)(6). To receive an Opinion Letter
under this revenue procedure, a Cash Balance Plan must provide that, at all times, any
benefits accrued prior to the Adopting Employer’s adoption of the Pre-approved Plan
(and other benefits protected under § 411(d)(6)(B)) are protected. A Cash Balance Plan
that was the subject of a Conversion Amendment must comply with the provisions of
§ 411(b)(5)(B)(iii) and § 1.411(b)(5)-1(c). However, an Opinion Letter will not be issued
for a plan that uses an opening hypothetical account balance as described in
§ 1.411(b)(5)-1(c)(3) to meet the requirements of § 1.411(b)(5)-1(c).
(2) Step-rate structure of Principal Credits. Cash Balance Plans that include any
structure of Principal Credits that increase with age, service, or any other measure
during a participant’s employment must be definitely determinable, operationally
nondiscriminatory, and at all times in compliance with the “133 1/3 percent rule” of
§ 411(b)(1)(B) and the regulations thereunder. Employers may not rely on the Opinion
Letter with respect to the requirements of § 411(b)(1) for increasing Principal Credit
schedules that are created by Adopting Employers by completing blanks in the plan
formula, but may rely on the Opinion Letter with respect to the requirements of
§ 411(b)(1) for increasing Principal Credit schedules specified in the Pre-approved Plan
document.
.06 Provisions required in a Section 403(b) Pre-approved Plan.
(1) Provider amendments. Each Section 403(b) Pre-approved Plan must include
a procedure for amendments by the Provider, so that changes in the Code, or in
regulations or other guidance published in the IRB, and any correction of the plan may
be applied to all Adopting Employers. The procedure for amendments by the Provider
also must state that, for purposes of the Pre-approved Plan program, the Provider will
no longer have the authority to amend the plan on behalf of the Adopting Employer as
of the date the plan is treated as an individually designed plan pursuant to
section 13.05.
(2) Adopting Employer modification to satisfy § 415. Each Section 403(b) Preapproved Plan must provide that plan provisions may be amended by the Adopting
Employer to the extent necessary to satisfy § 415 because of the required aggregation
of multiple plans under these sections. Generally, a space should be reserved in the

29

plan with instructions for the Adopting Employer to add such language as necessary to
satisfy § 415. These provisions must be included in the adoption agreement of an
Adoption Agreement Plan.
(3) Aggregation for § 415 compliance. Each Section 403(b) Pre-approved Plan
must provide for aggregation of all of an Adopting Employer’s defined contribution plans
as necessary to satisfy § 415(c) (as modified by § 415(h)), (f), and (k)(4).
(4) Provision regarding reliance. Each Section 403(b) Pre-approved Plan must
include, in close proximity to the signature line, a statement that describes the
limitations on Adopting Employer reliance on an Opinion Letter. See section 12.
(5) Provision regarding conflicting provisions in Investment Arrangements or
other documents. Each Section 403(b) Pre-approved Plan must provide that, in the
event of any conflict between the terms of the single plan document or the basic plan
document and adoption agreement, as applicable, and the terms of Investment
Arrangements under the plan (or of any other documents incorporated by reference into
the plan), the terms of the single plan document or the basic plan document and
adoption agreement, as applicable, will govern. See section 12.03(5) for the effect on
reliance in the event of a conflict. An Employer that adopts a Section 403(b) Preapproved Plan should take this requirement into account in considering Investment
Arrangements to be offered under the plan, as well as other documents that may be
incorporated by reference. Since the terms of Investment Arrangements under a
Section 403(b) Pre-approved Plan must be incorporated by reference into the plan and
those arrangements may not have any provisions that are inconsistent with § 403(b),
plan terms that are required in a single plan document or the basic plan document and
adoption agreement, as applicable, under this section 9 should not create a conflict with
the terms of the Investment Arrangements under a properly drafted Section 403(b) Preapproved Plan. If there nevertheless is a conflict, the terms of the single plan document
or the basic plan document and adoption agreement, as applicable, must control. 14
(6) Dated signatures and adoption agreement provisions. Each Section 403(b)
Pre-approved Plan must include an Adopting Employer signature and date line. The
plan also must include a statement that the Provider will inform the Adopting Employer
of any amendments made to the plan or of the discontinuance of the plan. The Adopting
Employer must sign and date the adoption agreement or signature page of the plan
when it first adopts the plan and must complete, sign, and date a new adoption
agreement or signature page if the plan has been restated. In addition, the Adopting
Employer must complete a new dated adoption agreement or signature page if it
modifies any prior elections or makes new elections. The signature requirement may be
Accordingly, if a plan is operated in a manner that is inconsistent with a provision of the single plan
document or basic plan document, the plan will incur an operational failure even if the plan is operated in
a manner consistent with a provision of a Trust or Custodial Account Document that conflicts with the
provision of the single plan document or basic plan document.
14

30

satisfied by an electronic signature that reliably authenticates and verifies the adoption
of the adoption agreement or single plan document, or the restatement, amendment, or
modification thereof, by the Adopting Employer. In the case of an Adoption Agreement
Plan, the adoption agreement must state that it is to be used with only one basic plan
document and must identify that document. In addition, the adoption agreement must
include a cautionary statement to the effect that the failure to properly complete the
adoption agreement may result in failure of the form of the plan to meet the
Section 403(b) Requirements.
(7) Provider contact information. Each Section 403(b) Pre-approved Plan must
include the Provider’s name, address, and telephone number (or a space for the
address and telephone number of the Provider’s authorized representative) for inquiries
by Adopting Employers regarding the adoption of the plan, the meaning of plan
provisions, or the effect of the Opinion Letter. Each Section 403(b) Pre-approved Plan
may provide additional contact information (such as an email address).
(8) Definition of employee. Each Section 403(b) Pre-approved Plan must define
an employee as any employee of the Adopting Employer maintaining the plan or any
other Related Employer.
(9) Crediting of service taking into account § 414(b), (c), (m), and (o). Each
Section 403(b) Pre-approved Plan must credit all service with any Related Employer as
service with the Adopting Employer maintaining the plan.
(10) Uniformed Services Employment and Reemployment Rights Act and
§ 414(u). Each Section 403(b) Pre-approved Plan must include a provision reflecting the
requirements of § 414(u). See Rev. Proc. 96-49.
(11) Inclusion of Investment Arrangements. A Section 403(b) Pre-approved Plan
includes the Investment Arrangements under the plan in addition to the single plan
document or the basic plan document and adoption agreement. Every Section 403(b)
Pre-approved Plan must therefore incorporate by reference the terms of the Investment
Arrangements under the plan. While the IRS’s review of an application for an Opinion
Letter is limited to the terms of the single plan document or the basic plan document
and adoption agreement, as applicable, the terms of Investment Arrangements and
other documents that are incorporated by reference in the plan must satisfy applicable
law and may not have any provisions that are inconsistent with the Section 403(b)
Requirements. For example, if the forms of annuity benefit available under a plan are
described in the Investment Arrangements under the plan, the terms of the Investment
Arrangements must satisfy, if applicable to the plan, the joint and survivor annuity
requirements of section 205 of the Employee Retirement Income Security Act of 1974
(ERISA), Pub. L. 93-406, 88 Stat. 82954, and any applicable related rules, such as rules
relating to transfers of benefits that are subject to the joint and survivor annuity
requirement, and may not have any provisions that are inconsistent with the Section
403(b) Requirements.

31

(12) Plan must satisfy Section 403(b) Requirements independent of Investment
Arrangements. The IRS’s review of a Section 403(b) Pre-approved Plan will consider
only the terms of the single plan document or the basic plan document and adoption
agreement, as applicable. Accordingly, the provisions described in this section 9.06
(and sections 9.07 and 9.08, if applicable) must be included in the single plan document
or the basic plan document or adoption agreement, as appropriate, of every
Section 403(b) Pre-approved Plan, regardless of the terms of any Investment
Arrangements under the plan or any other documents that may be incorporated by
reference. This does not preclude the adoption of a Section 403(b) Pre-approved Plan
(including a Standardized Plan) if different Investment Arrangements under a plan have
different features or prevent the inclusion of additional provisions in the terms of the
Investment Arrangements under the plan or other documents incorporated by reference.
It also does not prevent a Section 403(b) Pre-approved Plan from using Investment
Arrangements that are more restrictive than required by § 403(b) or the single plan
document or the basic plan document and adoption agreement. However, the terms of
the single plan document or the basic plan document and adoption agreement, as
applicable, must satisfy the requirements of applicable law and this section 9.06 (and
sections 9.07 and 9.08, if applicable) independent of any Investment Arrangements
under the plan or any other documents incorporated by reference. For example, an
Adopting Employer’s Adoption Agreement Plan may offer both Investment
Arrangements that permit loans and Investment Arrangements that do not permit loans.
In this case, (1) the basic plan document must include provisions reflecting the
Section 403(b) Requirements, including §§ 1.403(b)-6 and 1.72(p)-1, and (2) the basic
plan document and adoption agreement, as completed by the Adopting Employer, must
provide that, to the extent permitted by the terms governing the applicable Investment
Arrangement, participant loans are available. Similarly, for example, if an Adopting
Employer’s Single Document Plan offers both Investment Arrangements that permit
loans and Investment Arrangements that do not permit loans, then the single plan
document must include provisions reflecting the Section 403(b) Requirements, including
§§ 1.403(b)-6 and 1.72(p)-1, and must provide that, to the extent permitted by the terms
governing the applicable Investment Arrangement, participant loans are available.
(13) Vesting. A Section 403(b) Pre-approved Plan may provide a vesting
schedule for contributions other than elective deferrals, rather than provide for full and
immediate vesting of the contributions. Except in the case of certain Nonstandardized
Plans described in this section 9.06(13), contributions other than elective deferrals (and
earnings thereon) under a Section 403(b) Pre-approved Plan must vest at least as
rapidly as would be required to satisfy the minimum vesting requirements of
§ 411(a)(2)(B) applicable to a qualified plan under § 401(a), even if the plan is not
subject to the parallel minimum vesting requirements under section 203 of ERISA. A
Nonstandardized Plan that is designed to be used for a plan that is not subject to the
minimum vesting requirements of section 203 of ERISA (for example, a Governmental
Plan) is not required to provide that contributions other than elective deferrals will vest
at least as rapidly as would be required to satisfy § 411(a)(2)(B). Every Section 403(b)

32

Pre-approved Plan that provides a vesting schedule for contributions other than elective
deferrals must also satisfy the following requirements: (1) the portion of a participant’s
interest in the plan that is not vested must be maintained in a separate account for the
participant that is treated as a separate contract to which § 403(c) (or, in case of a
custodial account, § 401(a)) applies, (2) as amounts in the participant’s separate
account become nonforfeitable, they must be removed from the separate account and
treated as amounts held under a § 403(b) plan, to the extent permitted under
§ 1.403(b)-3(d)(2)(ii), and (3) all nonvested amounts remaining in the participant’s
separate account must become nonforfeitable upon termination of the plan.
(14) Appendix of administrative responsibilities. Every Section 403(b) Preapproved Plan must include an appendix to the plan that will be used to identify the
parties responsible for the various administrative functions under the plan that are
necessary to comply with the Section 403(b) Requirements and other tax requirements,
including the requirements that apply on the basis of the aggregated Investment
Arrangements issued to a participant under the plan, and will list all the vendors of
Investment Arrangements approved for use under the plan. Changes to the information
in the required appendix will not affect the Adopting Employer’s ability to rely on an
Opinion Letter.
(15) Identifying category of Employer and plan. The adoption agreement or
single plan document of every Section 403(b) Pre-approved Plan must satisfy the
following requirements:
(a) Although a single adoption agreement may be made available to different
categories of Employers, the adoption agreement must require the Adopting Employer
to show its status as an Employer eligible to maintain a § 403(b) plan by indicating
whether the Adopting Employer is:
(i) A government-sponsored educational organization described in
§ 170(b)(1)(A)(ii) (a public school);
(ii) A tax-exempt organization described in § 501(c)(3) that is exempt from
tax under § 501(a);
(iii) An employer of a minister described in § 414(e)(5)(A); or
(iv) A minister described in § 414(e)(5)(A).
(b) The adoption agreement or single plan document must require the
Adopting Employer to show its status with respect to the nondiscrimination requirements
in § 1.403(b)-5 by indicating whether the plan is:
(i) A Governmental Plan;

33

(ii) A plan of an Adopting Employer that is a Church or QCCO for
employees of the Church or QCCO; or
(iii) A plan not described in (i) or (ii) of this section 9.06(15)(b).
(16) Separate Section 403(b) Pre-approved Plan for Retirement Income
Account. A single Section 403(b) Pre-approved Plan may not be used for both a
Section 403(b) Pre-approved Plan that is a Retirement Income Account and a Section
403(b) Pre-approved Plan that is not a Retirement Income Account. Thus, if a Provider
also has a Section 403(b) Pre-approved Plan that is not a Retirement Income Account,
a separate Section 403(b) Pre-approved Plan is required for a plan that is intended to
constitute a Retirement Income Account.
.07 Additional provisions required in a Section 403(b) Pre-approved Plan that is
intended to be a Standardized Plan. Each Section 403(b) Pre-approved Plan that is
intended to be a Standardized Plan must meet the following requirements:
(1) Hardship distribution satisfies safe-harbor standards. Any hardship
distribution satisfies the safe harbor standards in the regulations under § 401(k).
(2) Section 415 treatment of § 403(b) annuity contracts. Under § 1.415(f)-1(a)(3),
all § 403(b) annuity contracts purchased by an Employer for a participant are treated as
one § 403(b) annuity contract for purposes of § 415. Section 1.415(f)-1(f)(2) includes a
special rule providing that, if a participant on whose behalf a § 403(b) annuity contract is
purchased is in control of any employer for a limitation year, then the § 403(b) annuity
contract is aggregated with all other defined contribution plans maintained by that
employer. For these purposes, a custodial account and a Retirement Income Account
are each treated as a § 403(b) annuity contract. Every Section 403(b) Pre-approved
Plan that is intended to be a Standardized Plan must include plan language reflecting
these rules. In particular, the plan language must coordinate the application of the § 415
limits to all the Standardized Plans of the Adopting Employer and its Related Employers
so that, if the only § 403(b) plans maintained by the Adopting Employer and its Related
Employers are Standardized Plans, then the plans will satisfy § 415(c) and
§ 1.415(f)-1(a)(3) without requiring the addition of overriding plan language.
(3) Elective deferrals only or additional requirements for contributions that are
not elective deferrals. A Section 403(b) Pre-approved Plan that is intended to be a
Standardized Plan must provide either:—
(a) That the only contributions that an Adopting Employer may elect to
provide under the plan are elective deferrals, or
(b) With respect to any contributions other than elective deferrals, the plan
must satisfy all of the following requirements:

34

(i) Plan benefits all employees. Under the provisions governing eligibility
and participation, the plan by its terms must benefit all employees except those
employees that may be excluded under § 1.410(b)-6 and employees listed in
§ 1.403(b)-5(b)(4)(ii)(D) or (E). The plan may provide options as to whether some or all
of the employees described in § 1.410(b)-6 are excluded, provided that the criteria for
excluding employees described in § 1.410(b)-6 apply uniformly to all employees. A
Standardized Plan generally may not deny an allocation to an employee eligible to
participate merely because the employee is not an active employee on the last day of
the plan year or has failed to complete a specified number of hours of service during the
year. However, the plan may deny an allocation to an employee who is eligible to
participate if the employee terminates service during the plan year with not more than
500 hours of service and is not an active employee on the last day of the plan year. A
plan will not fail to satisfy the requirements of this section 9.07(3) with respect to
contributions other than elective deferrals merely because the plan provides, either as
the result of an elective provision or by default in the absence of an election to the
contrary, that individuals who become employees, within the meaning of
section 9.06(8), as the result of a transaction described in § 410(b)(6)(C) are excluded
from eligibility to participate in the plan during the period beginning on the date of the
transaction and ending on a date that is not later than the earlier of the last day of the
first plan year beginning after the date of the transaction or the date of a significant
change in the plan or in the coverage of the plan. A transaction described in
§ 410(b)(6)(C) is an asset or stock acquisition, merger, or other similar transaction
involving a change in the employer of the employees of a trade or business.
(ii) Eligibility is not more favorable for highly compensated employees.
The eligibility requirements under the plan are not more favorable for highly
compensated employees (as defined in § 414(q)) than for other employees.
(iii) Allocations are based on total compensation. Under the plan,
allocations (other than any elective deferral portion) are determined on the basis of total
compensation. The plan must provide that, for purposes of allocations, the definition of
total compensation is “participant’s compensation” within the meaning of § 415(c)(3), or
compensation that otherwise satisfies § 414(s) and § 1.414(s)-1(c).
(iv) Section 401(a)(4) safe harbors. If the plan provides for contributions
other than elective deferrals and matching contributions, the plan must satisfy one of the
design-based safe harbors described in § 1.401(a)(4)-2(b)(2) with respect to the
contributions.
(v) Benefits, rights and features are available to all employees. All
benefits, rights, and features under the plan (other than those, if any, that have been
prospectively eliminated) are currently available to all employees benefiting under the
plan. (For information regarding benefits, rights, and features and the determination of
current availability, see § 1.401(a)(4)-4.)

35

.08 Additional provisions required in a Section 403(b) Pre-approved Plan intended
to be a Retirement Income Account. Each Section 403(b) Pre-approved Plan that is
intended to be a Retirement Income Account must meet the following requirements:
(1) Identification as Retirement Income Account. The plan must state the intent
to be a Retirement Income Account in accordance with § 1.403(b)-9(a)(2)(ii).
(2) Separate accounting, investment performance, and exclusive benefit. The
terms of the plan must satisfy the separate accounting, investment performance, and
exclusive benefit requirements of § 1.403(b)-9(a)(2)(i).
(3) Life annuity requirements. If the plan provides for benefits in the form of a life
annuity, the plan must satisfy the present value and benefit guarantee requirements of
§ 1.403(b)-9(a)(5), and the present value must be based on reasonable actuarial
assumptions that are either set forth in the plan or incorporated by reference into the
plan.
(4) Nondiscrimination requirements. The terms of the plan must set forth the
nondiscrimination requirements of § 403(b)(12). The plan also must state that the
nondiscrimination requirements are applied to any employee other than an employee of
a QCCO or Church.
(5) Multiple Employers that are not Related Employers. In the case of multiple
Employers that are not Related Employers participating in the plan, each Adopting
Employer must identify whether it is a Church, QCCO, non-QCCO, or minister.
SECTION 10. OPINION LETTERS - SCOPE
.01 General limits on Opinion Letters. An Opinion Letter constitutes a determination
that the form of a Pre-approved Plan satisfies the Qualification Requirements or the
Section 403(b) Requirements, as applicable, subject to the requirements and limitations
of this revenue procedure. An Opinion Letter is issued only to a Provider or Mass
Submitter. The IRS’s review of a Provider’s or Mass Submitter’s application for an
Opinion Letter for a Pre-approved Plan will consider only the terms of the single plan
document or the basic plan document and adoption agreement, as applicable. The
IRS’s review will not consider, and an Opinion Letter will not express an opinion with
respect to, the terms of any Trust or Custodial Account Document for (or Investment
Arrangement under) the plan of any Adopting Employer or any other documents that
may be incorporated by reference into an Adopting Employer’s plan. An Opinion Letter
for a Qualified Pre-approved Plan does not constitute a ruling or a determination as to
the exempt status of related trusts or custodial accounts under § 501(a).
.02 Plans for which an Opinion Letter will not be issued.
(1) For a Pre-approved Plan, an Opinion Letter will not be issued for:

36

(a) A plan under which the § 415 limitations are incorporated by reference;
(b) A plan under which the actual contribution percentage (ACP) test under
§ 401(m)(2) is incorporated by reference;
(c) A Nonstandardized Plan that provides for hardship distributions under
circumstances not described in the safe harbor standards in the regulations under
§ 401(k), unless these distributions are subject to nondiscriminatory and objective
criteria included in the plan;
(d) A plan that includes blanks or fill-in provisions for the Adopting Employer
to complete, unless the provisions have parameters that preclude the Adopting
Employer from completing the provisions in a manner that could violate the Qualification
Requirements or Section 403(b) Requirements, as applicable;
(e) A plan designed to satisfy the provisions of § 105;
(f) A plan that includes § 401(h) accounts; or
(g) A plan that includes purported fail-safe provisions for § 401(a)(4) or the
average benefit test under § 410(b).
(2) For a Qualified Pre-approved Plan, in addition to the circumstances
described in section 10.02(1), an Opinion Letter will not be issued for:
(a) A multiemployer plan;
(b) A single-employer collectively bargained plan (however, this rule does not
preclude an employer from covering employees of the employer that are included in a
unit covered by a collective bargaining agreement if it is adopting a Pre-approved Plan
for its non-bargaining employees or from adopting a Pre-approved Plan pursuant to
such agreement as a single-employer plan that covers only bargaining employees of the
employer);
(c) A stock bonus plan other than an ESOP;
(d) An ESOP that is a combination of a stock bonus plan and a money
purchase plan;
(e) An ESOP that provides for the holding of preferred employer stock,
including an ESOP that holds stock described in § 409(l)(3);
(f) A Statutory Hybrid Plan with any of the following features:

37

(i) A statutory hybrid benefit formula that is not a Cash Balance Formula,
such as a formula under which benefits are determined by reference to the current
value of an accumulated percentage of the participant’s average compensation (a
Pension Equity Plan or PEP);
(ii) A provision under which Interest Credits are based on rates of return
that are subject to participant choice, or any rate that does not meet the requirements of
§ 1.411(b)(5)-1(d);
(iii) A provision under which a rate used to determine Interest Credits is
based on the actual rate of return on aggregate assets of the plan described in
§ 1.411(b)(5)-1(d)(5)(ii)(A) or the rate of return on certain regulated investment
companies (RICs) described in § 1.411(b)(5)-1(d)(5)(iv) (unless the plan provides that
the rate used to determine Interest Credits is equal to the actual rate of return on the
aggregate assets of the plan), or is based on or equal to the actual rate of return on a
subset of plan assets (as described in § 1.411(b)(5)-1(d)(5)(ii)(B));
(iv) A Conversion Amendment, except for plans providing that, after the
effective date of the Conversion Amendment, a participant’s accrued benefit is equal to
the sum of accruals under the prior formula plus the benefit based on the Cash Balance
Formula (“A+B Conversion”);
(v) A provision that uses the 3-percent accrual rule or the fractional
accrual rule under § 411(b)(1)(A) or (C) to satisfy the accrued benefit requirements
under § 411(b)(1);
(vi) A provision for funding exclusively through insurance contracts as
described in § 412(e)(3); or
(vii) A provision for Offsets of benefits accrued under another plan (the
“offsetting plan”), unless:
(A) The Offset is applied on an accumulated basis at the participant’s
annuity starting date, rather than offsetting each year’s Principal Credit by that year’s
accruals or contributions under the offsetting plan;
(B) If plan provisions are consistent with treatment of the Cash
Balance Formula as a lump sum-based benefit formula under § 1.411(a)(13)-1(d)(3),
then the offsetting plan is a defined contribution plan, and the Offset is applied by
subtracting the account balance under the defined contribution plan from the
hypothetical account balance under the Cash Balance Formula prior to converting the
balance to an annuity benefit;
(C) The Offset satisfies the safe-harbor requirements of
§ 1.401(a)(4)-8(d) (except that the Offset can be computed by subtracting the account

38

balance under the offsetting plan from the hypothetical account balance under the Cash
Balance Formula), including the requirement that the offsetting plan may not be a
§ 401(k) plan or a § 401(m) plan;
(D) For the purpose of determining the amount of the Offset against
any defined benefit formula, the Offset reflects the value of any distributions from the
offsetting plan made prior to the participant’s annuity starting date under the Cash
Balance Plan;
(E) The Offset is applied on a uniform basis for all participants;
(F) The plan provides a minimum accrued benefit to participants
(expressed as a lifetime annuity commencing at normal retirement age) of no less than
0.5% of compensation for each year of credited service, which is not reduced by the
Offset applied to other formulas under the plan;
(G) Accrued benefits, considered in conjunction with defined
contribution accounts subject to any Offset, meet nondiscrimination requirements; and
(H) The amount of the Offset, including any procedures and actuarial
assumptions for converting a defined contribution account balance (under a specifically
named defined contribution plan) to an annuity amount, is definitely determinable;
(g) A plan described in § 414(k) (relating to a defined benefit plan that
provides a benefit derived from employer contributions that is based partly on the
balance of the separate account of a participant);
(h) A target benefit plan, other than a plan that, by its terms, satisfies each of
the safe harbor requirements described in § 1.401(a)(4)-8(b)(3)(i), as well as the
additional rules in § 1.401(a)(4)-8(b)(3)(ii) through (vii);
(i) A governmental defined benefit plan that includes a “deferred retirement
option plan” (DROP) feature, or similar provisions in which a participant earns additional
benefits for continued employment post-normal retirement age in the form of credits to a
separate account (including a cash balance account or other arrangement) under the
same plan;
(j) A plan under which the actual deferral percentage (ADP) test under
§ 401(k)(3) is incorporated by reference;
(k) A fully insured § 412(e)(3) plan, other than a non-statutory hybrid plan
that by its terms satisfy the safe harbor in § 1.401(a)(4)-3(b)(5);
(l) An eligible combined plan within the meaning of § 414(x)(2); or

39

(m) A Variable Annuity Plan.
(3) For Section 403(b) Pre-approved Plans, in addition to the circumstances
described in section 10.02(1), an Opinion Letter will also not be issued for:
(a) A TEFRA church defined benefit plan (see § 1.403(b)-10(f)(2)); or
(b) A plan grandfathered under Rev. Rul. 82-102, 1982-1 CB 62.
.03 Issues an Opinion Letter will not consider.
(1) Title I issues. Except as otherwise provided in guidance, an Opinion Letter
does not express an opinion, and may not be relied upon, with respect to whether any
plan is subject to the requirements of Title I of ERISA or whether a plan satisfies any of
those requirements.
(2) Issues related to a Section 403(b) Pre-approved Plan’s coverage of multiple
employers that are not Related Employers. An Opinion Letter does not express an
opinion, and may not be relied upon, with respect to whether the plan satisfies
§ 403(b)(15) or any other requirements that apply related to a plan’s coverage of
multiple employers that are not Related Employers.
.04 IRS discretion to decline to issue an Opinion Letter. The IRS may, in its
discretion, decline to issue an Opinion Letter for other types of plans or issues not
described in this section 10.
.05 Nonapplicability of this revenue procedure to IRAs (including traditional IRAs,
Roth IRAs, SEPs, and Simple IRAs). An Opinion Letter will not be issued under this
revenue procedure for prototype plans intended to meet the requirements for individual
retirement arrangements under § 408. 15
SECTION 11. ELIGIBILITY FOR THE CYCLE SYSTEM
.01 Initial eligibility for the Cycle system.
(1) In general. An Employer that initially adopts a Pre-approved Plan 16 may adopt
the plan at any time during a Cycle. Subject to section 11.01(2), upon an Employer’s
See the Form 5305 series, which provides model IRA documents that have been pre-approved by the
IRS and for which an opinion letter is not needed. See also Rev. Proc. 87-50, 1987-2 CB 647, as modified
by Rev. Proc. 97-29, 1997-1 CB 698; Rev. Proc. 98-59, 1998-2 CB 727; and Rev. Proc. 2010-48,
2010-50 IRB 828, for administrative procedures for seeking opinion letters for individual retirement
arrangements under § 408.
16
For purposes of this section 11, the term Pre-approved Plan includes a plan that was not in existence in
the immediately preceding Cycle and that has been submitted for (but has not yet received) an Opinion
Letter for the Cycle.
15

40

adoption of a Pre-approved Plan, the plan becomes subject to the rules applicable to
the Cycle system and the procedures set forth in this revenue procedure. In particular,
while a plan is subject to the Cycle system, the plan’s Disqualifying Provisions or Form
Defects, as applicable, will have the Remedial Amendment Periods described in
section 6. After a plan is no longer subject to the Cycle system, the plan’s Disqualifying
Provisions or Form Defects will be subject to the Remedial Amendment Period rules for
an individually designed plan. See Rev. Proc. 2022-40. Accordingly, as of the date that
a plan is no longer subject to the Cycle system, if the Remedial Amendment Period for a
Disqualifying Provision or Form Defect would be expired under the rules for individually
designed plans, then the Remedial Amendment Period will be expired, notwithstanding
that the Remedial Amendment Period would not be expired for a Pre-approved Plan. To
continue to be eligible for the Cycle system, the Employer must follow the rules in this
revenue procedure for continued eligibility. See, in particular, sections 11.02 and 13.
(2) Prior plan must be a valid plan. If an Employer that maintains an individually
designed plan amends the plan by adopting a Pre-approved Plan, the form of the
individually designed plan must satisfy the Qualification Requirements or Section 403(b)
Requirements, as applicable, at the time the Pre-approved Plan is adopted.
Accordingly, prior to adopting the Pre-approved Plan, the Employer must have either
timely corrected any Disqualifying Provisions or Form Defects in the individually
designed plan before the expiration of the applicable Remedial Amendment Period for
such Disqualifying Provision or Form Defect, or have corrected any plan document
failure under EPCRS.
.02 Continuing eligibility for the Cycle system - requirement to adopt newly
approved Pre-approved Plan. For a Pre-approved Plan adopted pursuant to
section 11.01 to continue to be eligible for the Cycle system, by the end of the Employer
Adoption Window for each Cycle, the Adopting Employer must adopt a newly approved
Pre-approved Plan (a newly approved version of the same plan or a newly approved
version of a different Pre-approved Plan). If, during the Employer Adoption Window for a
Cycle, instead of adopting a newly approved Pre-approved Plan, an Adopting Employer
amends its Pre-approved Plan by adopting an individually designed plan, the plan will
continue to be subject to the Remedial Amendment Period rules applicable to Preapproved plans until the end of the Employer Adoption Window for that Cycle; however,
for all other purposes, upon adoption of the individually designed plan, the plan will be
treated as an individually designed plan. This means, for example, that if the plan is
submitted for a determination letter during the Employer Adoption Window, the eligibility
conditions applicable to submission of a determination letter set forth in section 9 of
Rev. Proc. 2022-40 will apply, and the scope of plan review will be based on the
applicable Required Amendments List, as described in section 10 of that revenue
procedure. In contrast, if, by the end of any Employer Adoption Window, an Adopting
Employer does not amend its Pre-approved Plan by adopting a newly approved Preapproved Plan or any other plan, the plan will be treated as an individually designed
plan at the end of that Employer Adoption Window. Accordingly, the plan will become
subject to the rules relating to the Remedial Amendment Period, plan amendment

41

deadlines, and the eligibility requirements applicable to individually designed plan
determination letter applications set forth in Rev. Proc. 2022-40 at that time. Once a
plan is treated as an individually designed plan, the Adopting Employer is no longer able
to rely on an Opinion Letter for that Cycle.
SECTION 12. EMPLOYER RELIANCE ON OPINION LETTER
.01 Standardized Plans.
(1) Except as set forth in section 12.01(2), (3) and (4), an Adopting Employer of
a Standardized Plan may rely on the plan’s Opinion Letter that the form of the Adopting
Employer’s plan satisfies, in the case of a Section 403(b) Pre-approved Plan, the
Section 403(b) Requirements (including, if applicable, the requirements of §§ 401(a)(4)
and 410(b)) or, in the case of a Qualified Pre-approved Plan, the Qualification
Requirements, if:
(a) The Standardized Plan has a currently valid Opinion Letter,
(b) The coverage and contributions or benefits under the Adopting
Employer’s plan are not more favorable for highly compensated employees (as defined
in § 414(q)) than for other employees,
(c) The Adopting Employer has not amended the Standardized Plan other
than to choose options provided under the Standardized Plan or to make amendments
as described in section 13.02 relating to employer amendments that will not affect
reliance, and
(d) In the case of a Section 403(b) Pre-approved Plan, either (i) the only
contributions under the plan are elective deferrals, or (ii) the plan provides for
contributions other than elective deferrals and all of the Adopting Employer’s Related
Employers are employers described in § 403(b)(1)(A). If the plan provides for
contributions other than elective deferrals and the Adopting Employer’s controlled group
includes any employer that is not an employer described in § 403(b)(1)(A), the Adopting
Employer may rely on the plan’s Opinion Letter, except with respect to whether
contributions other than elective deferrals under the plan satisfy the requirements of
§§ 401(a)(4) and 410(b).
(2) An Adopting Employer may not rely on an Opinion Letter for a Standardized
Plan with respect to the requirements of § 415 (and § 416, in the case of a Qualified
Pre-approved Plan) without obtaining a determination letter (see section 25) if the
Adopting Employer, or, in the case of a Section 403(b) Pre-approved Plan, any of its
Related Employers, maintains or maintained at any time, another plan, including a
Standardized Plan, that was qualified or determined to be qualified or a 403(b) plan and
that covers or covered some of the same participants. An Employer that adopts a
Standardized Plan that is a defined contribution plan is not considered to have

42

maintained another plan merely because the Employer has maintained another defined
contribution plan, provided such other plan has been terminated prior to the effective
date of the Standardized Plan and no annual additions have been credited to the
account of any participant under such other plan as of any date within a limitation year
of the Standardized Plan. For this purpose, a plan that has been amended from an
individually designed plan to a Standardized Plan is not considered another plan. To be
a plan that has been amended from an individually designed plan to a Standardized
Plan and thus for the Employer to be able to rely on the Standardized Plan with respect
to the requirements of §§ 415 and 416 without obtaining a determination letter, the
individually designed plan that has been amended into the Standardized Plan must be
of the same type (for example, both defined benefit plans).
(3) An Adopting Employer of a Standardized Plan may not rely on an Opinion
Letter for the Standardized Plan with respect to:
(a) Whether the timing of any amendment to the Adopting Employer’s plan
(or series of amendments) satisfies the nondiscrimination requirements of
§ 1.401(a)(4)-5(a), except with respect to plan amendments granting past service that
meet the safe harbor described in § 1.401(a)(4)-5(a)(3) and are not part of a pattern of
amendments that significantly discriminates in favor of highly compensated employees;
or
(b) Whether the Adopting Employer’s plan satisfies the effective availability
requirement of § 1.401(a)(4)-4(c) with respect to any benefit, right, or feature.
An Employer that adopts a Standardized Plan as an amendment to a plan other than a
Standardized Plan may not rely on the Opinion Letter with respect to whether a benefit,
right, or feature that is prospectively eliminated satisfies the current availability
requirements of § 1.401(a)(4)-4, if applicable.
(4) In the case of a Qualified Pre-approved Plan, an Adopting Employer of a
Standardized Plan that is a defined benefit plan may rely on the plan’s Opinion Letter
with respect to the requirements of § 401(a)(26) only if the plan satisfies the
requirements of § 401(a)(26) with respect to its prior benefit structure (within the
meaning of § 1.401(a)(26)-3) or is deemed to satisfy § 401(a)(26) pursuant to
regulations thereunder.
(5) For SIMPLE plans described in § 401(k)(11) and (m)(10), an Adopting
Employer may also rely on the plan’s Opinion Letter regarding whether the form of the
Adopting Employer’s plan satisfies the requirements of those sections.
(6) For a starter 401(k) deferral-only plan described in § 401(k)(16) or a safe
harbor deferral-only plan described in § 403(b)(16), an Adopting Employer may also rely
on the plan’s Opinion Letter regarding whether the form of the Adopting Employer’s plan
satisfies the requirements of those sections.

43

.02 Nonstandardized Plans.
(1) An Adopting Employer of a Nonstandardized Plan may rely on the plan’s
Opinion Letter that the form of the Adopting Employer’s plan satisfies the Qualification
Requirements or Section 403(b) Requirements, as applicable, if:
(a) The Nonstandardized Plan has a currently valid Opinion Letter, and
(b) The Adopting Employer has not amended the plan other than to choose
options provided under the plan or to make amendments as described in section 13.02
relating to employer amendments that will not affect reliance.
(2) Except as otherwise provided in this section 12.02, an Adopting Employer of
a Nonstandardized Plan may not rely on the plan’s Opinion Letter with respect to the
requirements of:
(a) In the case of a Qualified Pre-approved Plan, §§ 401(a)(4), 401(a)(26),
401(l) , 410(b), or 414(s) (or, in the case of a Section 403(b) Pre-approved Plan,
§§ 401(a)(4), 410(b), or 414(s)); or
(b) Section 415 (or § 416, in the case of a Qualified Pre-approved Plan) if the
Adopting Employer, or any of its Related Employers, maintains or has ever maintained
another plan covering some of the same participants. For this purpose, whether an
employer maintains or has ever maintained another plan is determined using principles
consistent with section 12.01(1).
(3) An Adopting Employer of a Nonstandardized Plan may rely on the plan’s
Opinion Letter with respect to the requirements of § 410(b), if applicable (and, in the
case of a Qualified Pre-approved Plan, § 401(a)(26) (other than the § 401(a)(26)
requirements that apply to a prior benefit structure)), if all nonexcludable employees
benefit under the Adopting Employer’s plan.
(4) Nonstandardized Plans may permit an Adopting Employer to select an
allocation formula for contributions other than elective deferrals that satisfies one of the
design-based safe harbors in § 1.401(a)(4)-2(b)(2) (or, in the case of a Qualified Preapproved Plan that is a defined benefit plan, a benefit formula that satisfies one of the
design-based safe harbors under § 1.401(a)(4)-3(b)(3), (4), or (5)), and to select a safe
harbor compensation definition for the formula that satisfies § 1.414(s)-1(c). If the
Adopting Employer selects an allocation formula for contributions other than elective
deferrals that satisfies one of the design-based safe harbors in § 1.401(a)(4)-2(b)(2) (or,
in the case of a Qualified Pre-approved Plan that is a defined benefit plan,
§ 1.401(a)(4)-3(b)(3), (4), or (5)), and, if the allocation or benefit formula is based on
compensation, selects a safe harbor compensation definition that satisfies
§ 1.414(s)-1(c), then the Adopting Employer of a Nonstandardized Plan may rely on the

44

plan’s Opinion Letter with respect to the nondiscriminatory amounts requirement under
§ 401(a)(4), if applicable. An Adopting Employer of a Nonstandardized Plan that
includes § 401(m) matching contributions (and/or, in the case of a Qualified Preapproved Plan, § 401(k) contributions) may rely on the plan’s Opinion Letter with
respect to whether the form of the plan satisfies the actual contribution percentage
(ACP) test of § 401(m)(2) (or, in the case of a Qualified Pre-approved Plan, the actual
deferral percentage (ADP) test of § 401(k)(3)) if the Adopting Employer elects to use a
safe harbor definition of compensation in the test. An Adopting Employer of a
Nonstandardized Plan that satisfies the safe harbor requirement described in
§ 401(m)(11) or 401(m)(12) (or, in the case of a Qualified Pre-approved Plan, that
satisfies the safe harbor requirement described in § 401(k)(12) or 401(k)(13)) may rely
on the plan’s Opinion Letter with respect to whether the form of the Adopting Employer’s
plan satisfies the requirements of § 401(m) (or § 401(k), if applicable), unless the plan
provides for the safe harbor contribution under § 401(m)(11) or 401(m)(12) (or
§ 401(k)(12) or 401(k)(13), if applicable) to be made under another plan.
(5) For SIMPLE plans described in § 401(k)(11) and (m)(10), an Adopting
Employer may also rely on the plan’s Opinion Letter regarding whether the form of the
Adopting Employer’s plan satisfies the requirements of those sections.
(6) For starter 401(k) deferral-only plans described in § 401(k)(16) or a safe
harbor deferral-only plan described in § 403(b)(16), an Adopting Employer may also rely
on the plan’s Opinion Letter regarding whether the form of the Adopting Employer’s plan
satisfies the requirements of those sections.
(7) Except as set forth in section 9.05(2), an Adopting Employer of a
Nonstandardized Plan that is a Qualified Pre-approved Plan that includes a Cash
Balance Formula with a structure of Principal Credits that increase with age, service, or
any other measure during a participant’s employment may not rely on the plan’s Opinion
Letter with respect to the requirements of § 411(b)(1).
.03 Other limitations and conditions on reliance. Notwithstanding any provision in
this section 12 to the contrary, the following conditions and limitations regarding reliance
by an Adopting Employer on an Opinion Letter apply with respect to all Pre-approved
Plans:
(1) An Adopting Employer may rely on an Opinion Letter for a plan that amends
a plan of the Employer only if the form of the plan that is being amended satisfied the
Qualification Requirements or Section 403(b) Requirements, as applicable. Accordingly,
prior to being amended, the plan must either have timely corrected any Disqualifying
Provisions or Form Defects for which the Remedial Amendment Period is closed or
have corrected any plan document failures under the EPCRS. If this requirement is not
met, then the employer (a) is considered to have adopted an individually designed plan,
(b) may not rely on the Opinion Letter for the plan, and (c) is not considered be on the

45

Cycle system. 17
(2) An Adopting Employer may not rely on an Opinion Letter if the Adopting
Employer’s adoption of a Pre-approved Plan precedes the issuance of an Opinion Letter
for the plan. 18
(3) An Adopting Employer may not rely on an Opinion Letter if the adoption
agreement or other elective provisions in the plan are not completed correctly by the
Adopting Employer.
(4) An Adopting Employer of any Qualified Pre-approved Plan that is not a
Governmental Plan and that is a pension plan in which the normal retirement age
selected by the Adopting Employer is less than age 62 may not rely on the Opinion
Letter that such age is reasonably representative of the typical retirement age for the
employer’s industry, as required by § 1.401(a)-1(b)(2). For an Adopting Employer of any
Qualified Pre-approved Plan that is a Governmental Plan and that is a pension plan in
which the normal retirement age selected by the Adopting Employer does not satisfy
any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations
may not rely on the Opinion Letter that such age is reasonably representative of the
typical retirement age for the employer’s industry, as required by § 1.401(a)-1(b)(2).
(5) An Adopting Employer may not rely on an Opinion Letter with respect to any
provision of a Trust or Custodial Account Document or Investment Arrangement, as
applicable, that conflicts with language in the basic plan document, adoption agreement,
or single plan document, as applicable, even if the Trust or Custodial Account
Document or Investment Arrangement includes language that states that the provisions
of the Trust or Custodial Account Document or Investment Arrangement override the
basic plan document, adoption agreement, or single plan document. 19
(6) For a Qualified Pre-approved Plan, the issuance of an Opinion Letter is not a
determination by the IRS that an Adopting Employer’s plan is a Governmental Plan or a
church plan (as described in § 414(e)). For a Section 403(b) Pre-approved Plan, the
issuance of an Opinion Letter is not a determination by the IRS that an Adopting
Employer’s plan is a Governmental Plan, or that an Adopting Employer is a Church or
QCCO.
(7) Pursuant to section 14.11, a Provider’s failure to disclose to the IRS a
The plan may still use EPCRS to correct any failures, and, after correction, then be eligible to adopt a
Pre-approved Plan.
18
In this case, in order to have reliance, the Adopting Employer would need to re-adopt the Pre-approved
Plan after the issuance of the Opinion Letter for the plan.
19
Accordingly, if a Pre-approved Plan is operated in a manner that is inconsistent with a provision of the
basic plan document or single plan document, the plan will incur an operational failure even if the plan is
operated in a manner consistent with a provision of a Trust or Custodial Account Document or Investment
Arrangement that conflicts with the provision of the basic plan document or single plan document.
17

46

material fact, misrepresentation of a material fact, or failure to accurately provide any of
the information called for on any form required by this revenue procedure may result in
the inability of Adopting Employers to rely on an Opinion Letter (for example, if there is a
failure to disclose to the IRS a material fact, the IRS may revoke the Opinion Letter due
to the failure).
(8) Pursuant to section 15.03(2)(c), if a Mass Submitter fails to identify a material
modification, the failure is considered a material misrepresentation, and an Adopting
Employer may not rely on an Opinion Letter issued with respect to the plan for the
modification or any other provision of the plan that may be affected by the modification.
.04 Reliance equivalent to determination letter. If an Adopting Employer may rely on
an Opinion Letter pursuant to this section 12, the Opinion Letter is equivalent to a
determination letter. For example, the Opinion Letter is treated as a determination letter
for purposes of section 23 of Rev. Proc. 2023-4 (as updated annually), regarding the
effect of a determination letter. As provided in this section 12, the extent of the Adopting
Employer’s reliance may be limited.
.05 Obtaining a determination letter. If an Adopting Employer may not rely on a Preapproved Plan’s Opinion Letter, the Adopting Employer, if eligible as set forth in
section 25, may submit an application for a determination letter to obtain reliance that
the form of the plan satisfies the Qualification Requirements or Section 403(b)
Requirements, as applicable.
SECTION 13. PLAN AMENDMENTS
.01 Provider plan amendments generally. Providers are required to amend their
Pre-approved Plans to ensure that the form of their plans continues to satisfy the
Qualification Requirements or Section 403(b) Requirements, as applicable. 20 Providers
must make reasonable and diligent efforts, as soon as practicable following the
adoption of plan amendments, to ensure that Adopting Employers of the Provider’s plan
have actually received and are aware of such plan amendments. Providers must include
the date on which each amendment is adopted by the Provider with the amendment
provided to Adopting Employers. The Provider must have a procedure to notify an
Adopting Employer of amendments and restatements of the plan and to inform the
Adopting Employer, when applicable, of the need to timely adopt or amend the plan,
including in the case of both initial adoption and restatement of the plan. The Provider
must also notify an Adopting Employer that failure to timely adopt the plan or
restatement, when required, or failure to take into account plan amendments in the
operation of the plan, could result in adverse tax consequences. A Provider’s failure to
comply with these requirements may result in the loss of eligibility to offer Pre-approved
Plans and the revocation of an Opinion Letter that has been issued to the Provider.
20

See section 6.04 regarding the requirement to make Interim Amendments.

47

.02 Amendments that will not affect reliance. An Adopting Employer may continue to
rely on an Opinion Letter for a Pre-approved Plan if amendments to the plan are made
that are described in paragraphs (1) through (8) of this section 13.02. See section 12.01
and 12.02 for the effect of amendments on reliance on an Opinion Letter by the
Adopting Employer. The following types of amendments will not cause an Adopting
Employer to lose reliance on an Opinion Letter:
(1) Amendments to the plan to add or change a provision (including choosing
among options in the plan) or to specify or change the effective date of a provision,
provided the Adopting Employer is permitted to make the modification or amendment
under the terms of the Pre-approved Plan as well as under the Qualification
Requirements or Section 403(b) Requirements, as applicable, and the provision is
identical to a provision in the Pre-approved Plan, except for the effective date;
(2) Sample or model amendments (or an amendment that is substantially similar
to a sample or model amendment in all material respects) that are adopted by the
Adopting Employer, that are published by the IRS, and that specifically provide that their
adoption will not cause a plan to fail to be identical to the Pre-approved Plan;
(3) Amendments that adjust the limitations under §§ 415, 402(g), 401(a)(17),
and 414(q)(1)(B) to reflect annual cost-of-living increases, or add automatic cost-ofliving adjustment provisions to the plan;
(4) Plan language completed by the Adopting Employer if such overriding
language is necessary to satisfy § 415 (or 416, in the case of a Qualified Pre-approved
Plan) because of the required aggregation of multiple plans under that section, in
accordance with section 9.02(3) or 9.06(2);
(5) Interim Amendments or Discretionary Amendments that are adopted as a
result of a change in Qualification Requirements or Section 403(b) Requirements, as
applicable, for the form of the plan;
(6) Amendments that reflect a change of a Provider’s name, in which case the
Provider must notify the IRS, in writing, of the change in name and certify that it still
satisfies the conditions to be a Provider described in section 4.01(15) (see also
section 19 regarding changes in employer identification numbers);
(7) Amendments to the administrative provisions in the plan (such as provisions
relating to investments, plan claims procedures, and Adopting Employer’s contact
information), provided the amended provisions are not in conflict with any other
provision of the plan, still meet the requirements of this revenue procedure, and do not
cause the plan to fail to satisfy the Qualification Requirements or Section 403(b)
Requirements, as applicable, (see section 15.03(1)(b)(ii) for additional examples of
administrative provisions); and

48

(8) Amendments with respect to which a closing agreement under the Audit
Closing Agreement Program or a compliance statement under the Voluntary Correction
Program of EPCRS has been issued (see section 6.05(2)(b) of Rev. Proc. 2021-30
regarding the ability of the Adopting Employer to rely on the Opinion Letter).
.03 Obtaining reliance after employer amendment. If an Adopting Employer may not
rely on a Pre-approved Plan’s Opinion Letter, the Adopting Employer, if eligible in
accordance with section 25, may submit an application for a determination letter to
obtain reliance that the form of the plan satisfies the Qualification Requirements or
Section 403(b) Requirements, as applicable.
.04 Effect of employer amendments on a plan’s eligibility for the Cycle system.
Except as set forth in section 13.05, employer amendments made to a Pre-approved
Plan will not affect the plan’s eligibility for the Cycle system.
.05 Pre-approved plans treated as individually designed. An Adopting Employer’s
Pre-approved Plan is treated as individually designed (and, as a result of the plan being
treated as individually designed, the Adopting Employer may not rely on the plan’s
Opinion Letter (see section 12 regarding reliance), will lose eligibility for the Cycle
system as described in this section 13.05 (see section 11 regarding eligibility for the
Cycle system), and will be subject to different rules for applying for a determination
letter (see section 25 regarding determination letters)) under the following
circumstances:
(1) An Adopting Employer makes any amendment to a Standardized Plan other
than an amendment listed in section 13.02 or as otherwise described in this
section 13.05. In this case, the Adopting Employer will lose reliance on the Opinion
Letter as of the effective date of the amendment but the plan will remain eligible for the
Cycle system (provided that the Adopting Employer adopts timely Interim Amendments)
until the end of the Cycle that includes the effective date. 21
(2) An Adopting Employer amends a Pre-approved Plan (including its adoption
agreement, if applicable) within one year of the date the Adopting Employer initially
adopted the Pre-approved Plan to incorporate a type of plan not permitted in the
Opinion Letter program, as described in section 10.02. In this case, the Adopting
Employer is treated as never having had any reliance on the Opinion Letter and is
treated as never having been eligible for the Cycle system.
(3) An Adopting Employer amends a Pre-approved Plan (including its adoption
agreement, if applicable) more than one year after the date the Adopting Employer
Adopting Employers who are considering making an amendment that is not extensive to a
Standardized Plan might consider adopting a Nonstandardized Plan instead, in order to be able to apply
for determination letter using Form 5307, Application for Determination for Adopters of Modified
Nonstandardized Pre-approved Plans, as a Pre-approved Plan. See section 25.
21

49

initially adopted the Pre-approved Plan to incorporate a type of plan not permitted in the
Opinion Letter program, as described in section 10.02. In this case, the Adopting
Employer will lose reliance on the Opinion Letter as of the effective date of the
amendment but the plan will remain eligible for the Cycle system (provided that the
Adopting Employer adopts timely Interim Amendments) until the end of the Cycle that
includes the effective date.
(4) An Adopting Employer of a Nonstandardized Plan makes amendments that,
due to the nature and extent of the amendments, result in the IRS, in its sole discretion,
determining that the plan should be treated as individually designed. In this case, the
Adopting Employer generally will lose reliance on the Opinion Letter as of the effective
date of the amendments but the plan will remain eligible for the Cycle system (provided
that the Adopting Employer adopts timely Interim Amendments) until the end of the
Cycle that includes the effective date.
(5) An Adopting Employer chooses to discontinue participation in a Preapproved Plan that has been amended by the Provider without substituting another Preapproved Plan. In this case, the Adopting Employer will lose reliance on the Opinion
Letter as of the date participation in the Pre-approved Plan ends but the plan will remain
eligible for the Cycle system (provided that the Adopting Employer adopts timely Interim
Amendments) until the end of the Cycle that includes the date on which participation in
the Pre-approved Plan ends.
(6) An Adopting Employer makes an amendment to a Pre-approved Plan that
removes any of the required provisions of section 9. In this case, the Adopting Employer
will lose reliance on the Opinion Letter as of the effective date of the amendment, but
the plan will remain eligible for the Cycle system (provided that the Adopting Employer
adopts timely Interim Amendments) until the end of the Cycle that includes the effective
date.
(7) As set forth in section 11.02, if, during the Employer Adoption Window for a
Cycle, an Adopting Employer adopts a plan other than either a newly approved version
of the same plan or a newly approved version of a different Pre-approved Plan, the plan
will continue to be subject to the Remedial Amendment Period rules applicable to Preapproved plans until the end of the Employer Adoption Window for that Cycle; however,
for purposes other than the Remedial Amendment Period, at the time the plan that is
not a newly approved Pre-approved Plan is adopted, the plan will be treated as an
individually designed plan. In contrast, if, by the end of any Employer Adoption Window,
an Adopting Employer fails to adopt a newly approved version of the same plan or a
newly approved version of a different Pre-approved Plan, and does not adopt another
plan to replace its Pre-approved plan, the plan will be treated as an individually
designed plan at the end of that Employer Adoption Window.
(8) As set forth in section 6.04, if an Interim Amendment is not adopted by the
time period set forth in section 7 and the Adopting Employer does not correct this failure

50

to timely adopt the Interim Amendment within two years after the time period set forth in
section 7, then the Adopting Employer’s plan will be treated as an individually designed
plan at the end of that two-year period.
SECTION 14. OPINION LETTER APPLICATIONS - INSTRUCTIONS TO PROVIDERS
AND OTHER RULES FOR APPLICATIONS AND LETTERS
.01 Issuance of an Opinion Letter. The IRS will, upon an application of a Provider,
issue an Opinion Letter confirming that the form of the Provider’s plan satisfies the
Qualification Requirements or Section 403(b) Requirements, as applicable.
.02 Cycle 4 Submission Period for defined contribution Qualified Pre-approved
Plans. Pursuant to this revenue procedure, the Submission Period for a Provider of a
defined contribution Qualified Pre-approved Plan to submit an application for a Cycle 4
Opinion Letter begins on February 1, 2024, and ends on January 31, 2025. A Provider
may still apply for a Cycle 4 Opinion Letter after the Submission Period. See section 16
regarding filing after the Submission Period.
.03 Procedure for applying for an Opinion Letter. The Provider must submit an
application for an Opinion Letter with respect to its plan on the version of Form 4461,
Application for Approval of Standardized or Nonstandardized Pre-approved Defined
Contribution Plans, Form 4461-A, Application for Approval of Standardized or
Nonstandardized Pre-approved Defined Benefit Plan, Form 4461-B, Application for
Approval of Standardized or Nonstandardized Pre-approved Plans (Mass Submitter
Adopting Provider), or Form 4461-C, Application for Approval of Standardized or
Nonstandardized 403(b) Pre-approved Plans, as appropriate, that is applicable at the
time of the request. The request must be accompanied by (1) the applicable required
user fee that will be provided for in the successors to Rev. Proc. 2023-4 (as updated
annually), and (2) if an Opinion Letter had been issued for the plan for the preceding
Cycle, a signed certification that all necessary amendments required by the IRS in order
for the form of the plan to satisfy the Qualification Requirements or Section 403(b)
Requirements, as applicable, have been made and communicated to all Adopting
Employers. All information on the application form must be typed. The application form
must be sent to the address listed in section 24. The application must include a copy of
the plan document and any adoption agreement, if applicable. If an Opinion Letter had
been issued for the plan for the preceding Cycle, the Provider must submit a restated
plan that incorporates any amendments. Copies of Trust or Custodial Account
Documents, Investment Arrangements, or other funding media should not be submitted,
as the IRS will not review for (and the Opinion Letter will not cover) any provisions
included in Trust or Custodial Account Documents, Investment Arrangements, or other
funding media. Additionally, the IRS requests that applications be submitted by thumb
or flash drive instead of being submitted as paper files, and that the documents be
saved in Microsoft Word or Adobe Acrobat PDF format. The IRS strongly encourages
Providers to take advantage of this electronic submission format. If a plan received an
Opinion Letter for the preceding Cycle, the IRS strongly encourages Providers to submit

51

a redline of the plan highlighting the changes made. To pay a user fee, a Provider must
continue to submit a paper check and a paper Form 8717-A, User Fee for Employee
Plan Opinion Letter Request.
.04 Additional submission requirements for Interim Amendments. If the plan has
received an Opinion Letter for the preceding Cycle, in addition to the application
described in section 14.03, the Provider must submit a certification that all Interim
Amendments related to changes in law listed on the applicable Cumulative List have
been made and a cover letter summarizing how the provisions of the plan are affected
by each amendment. The IRS retains the right to request and secure from the Provider
in appropriate circumstances copies of all Interim Amendments related to changes in
law listed on the applicable Cumulative List that the Provider has adopted on behalf of
its Adopting Employers.
.05 Expediting review of substantially identical plans. The IRS reserves the right to
review applications in any order that will expedite the processing of Opinion Letter
applications, subject to section 16 regarding filings made after the Submission Period.
To expedite the review of substantially identical plans that are not a Mass Submitter’s
plans, the IRS encourages plan drafters and Providers to include with each Opinion
Letter application, if appropriate, a cover letter setting forth the following information:
(1) The name and file folder number (if available) of the plan that, for review
purposes, the plan drafter designates as the “lead plan” (including the name and EIN of
the Provider);
(2) A list of all plans written by the plan drafter that are substantially identical to
the lead plan (including the information described in paragraph (1) of this section 14.05
for each plan);
(3) A description of each location in the plan for which the application is being
submitted that is not word-for-word identical to the language of the lead plan, including
an explanation of the purpose and effect of each such difference; and
(4) A certification made under penalties of perjury by the plan drafter that the
information described in paragraph (3) of this section 14.05 is true and complete.
If the Provider or plan drafter is aware that a lead plan or any substantially identical plan
has been assigned for review to a specialist, the cover letter also should indicate the
name of the specialist, if possible. To the extent feasible, lead plans and substantially
identical plans should be submitted together. The IRS will regard the information and
certification described in paragraphs (3) and (4) of this section 14.05 as a
representation of a material fact for purposes of issuing an Opinion Letter.
.06 Adoption Agreement Plans - number of basic plan documents, adoption
agreements, and applications required.

52

(1) Qualified Pre-approved Plans: use of basic plan document by multiple
Adoption Agreement Plans.
(a) In general, provided that the provisions of a basic plan document are
identical for all plans using that document, separate defined contribution Qualified Preapproved Plan adoption agreements may be associated with the same defined
contribution Qualified Pre-approved Plan basic plan document, and separate defined
benefit Qualified Pre-approved Plan adoption agreements may be associated with the
same defined benefit Qualified Pre-approved Plan basic plan document. Thus, for
example, a profit-sharing plan, a money purchase pension plan other than a target
benefit plan, a target benefit plan, and an ESOP may all use the same defined
contribution basic plan document. Adoption agreements of defined benefit plans,
defined contribution plans, and § 403(b) plans may not be associated with the same
basic plan document.
(b) Basic plan documents and associated adoption agreements used for
Governmental Plans must be separate from the basic plan documents and associated
adoption agreements used for plans that are not Governmental Plans. In addition, the
basic plan document and the adoption agreements associated with a church plan, as
described in § 414(e), that has not made an election set forth in § 410(d) may not be
combined with the basic plan document and the adoption agreements of any other type
of plan. Thus, for example, a Provider that wishes to obtain Opinion Letters for a
Governmental Plan and a non-electing church plan must submit a separate basic plan
document and associated adoption agreement for the Governmental Plan and a
separate basic plan document and associated adoption agreement for the non-electing
church plan.
(2) Section 403(b) Pre-approved Plans: use of basic plan documents by multiple
Adoption Agreement Plans.
(a) Separate Section 403(b) Pre-approved Plan adoption agreements may be
associated with the same Section 403(b) Pre-approved Plan basic plan document.
Adoption agreements of defined benefit plans, defined contribution plans, and § 403(b)
plans may not be associated with the same basic plan document.
(b) A plan that is intended to be a Retirement Income Account and a plan
that is not intended to be a Retirement Income Account may not be combined in in the
same basic plan document.
(3) Number of adoption agreements required.
(a) A Standardized Plan and a Nonstandardized Plan may not be combined
in a single adoption agreement.

53

(b) The following rules apply for a Qualified Pre-approved Plan:
(i) A profit-sharing plan (with or without a § 401(k) arrangement) that does
not include an ESOP feature and a money purchase pension plan that is not a target
benefit plan may use the same adoption agreement; however, separate adoption
agreements are required for ESOPs and target benefit plans.
(ii) An ESOP is permitted to include both profit-sharing and § 401(k)
features in the same adoption agreement; however, an employer that adopts the plan
may not adopt the profit-sharing or § 401(k) features without also adopting the ESOP
portion of the plan.
(iii) An adoption agreement submitted for a defined benefit plan may
include any combination of integrated formulas (that is, formulas that provide for
permitted disparity), non-integrated formulas, and cash balance formulas.
(c) For a Section 403(b) Pre-approved Plan, a single adoption agreement
may be drafted to cover multiple types of Employers (for example, a single adoption
agreement may be drafted to cover a church, a § 501(c)(3) organization, or a public
school).
(4) Number of applications required. A separate application form must be filed
with respect to each adoption agreement submitted. A basic plan document and all
associated adoption agreements should be submitted simultaneously. Only one copy of
the basic plan document should be provided. However, if additional adoption
agreements are later submitted with respect to a basic plan document, the Provider
must submit a copy of the basic plan document with each submission and include a
cover letter identifying the original submission (including the date submitted). In that
case, the plan number given to the basic plan document must remain the same as in
the prior submission.
.07 Separate applications required for Single Document Plans
(1) With respect to a Standardized Plan and a Nonstandardized Plan, a separate
plan and application must be submitted for each plan if it is a Single Document Plan.
(2) For a Qualified Pre-approved Plan, a separate plan and application must be
submitted for each of the following types of Single Document Plans: a target benefit
plan, an ESOP, and a defined benefit plan. A profit-sharing plan (with or without a
§ 401(k) arrangement) that does not include an ESOP and a money purchase pension
plan that is not a target benefit plan may be combined in a single plan and application.
In addition, although an ESOP is permitted to include both profit-sharing and § 401(k)
features in the same plan, an Employer that adopts the plan may not select the profitsharing or § 401(k) features without also selecting the ESOP provisions in the plan.

54

(3) For a Qualified Pre-approved Plan, with respect to a Governmental Plan or a
non-electing church plan, a separate plan and application must be submitted for each
plan. Thus, for example, separate plans and application forms must be submitted for a
Governmental Plan, a plan that is not a Governmental Plan, and a non-electing church
plan.
(4) For a Section 403(b) Pre-approved Plan, a separate plan and application is
required for each Single Document Plan. A Single Document Plan may accommodate
usage by more than one type of Employer; however, a Retirement Income Account plan
must always be filed as a separate Single Document Plan.
.08 Sample Language. Before the Submission Period with respect to a Cycle
begins, the IRS anticipates providing updated Listings of Required Modifications (LRMs)
including sample plan language. Although the sample language is designed for use in
plans that use an adoption agreement format, in order to expedite processing, Providers
should refer to the sample language as a guide in drafting Single Document Plans.
Specifically, to expedite the review of their plans, Providers are encouraged to use LRM
language if appropriate. The updated LRMs, when available, may be downloaded at
https://www.irs.gov/Retirement-Plans/Listing-of-Required-Modifications-LRMs.
.09 Operational Compliance List. The Remedial Amendment Period permits a plan
to be amended retroactively to comply with a change in Qualification Requirements or
Section 403(b) Requirements, as applicable; however, a plan must be operated in
compliance with those requirements beginning on the effective date of the change. To
assist Adopting Employers in achieving operational compliance, the IRS provides
annually an Operational Compliance List at https://www.irs.gov/retirementplans/operational-compliance-list to identify changes in those requirements that are
effective during a calendar year. To comply with the Qualification Requirements or
Section 403(b) Requirements, as applicable, however, a plan must comply operationally
with each relevant requirement, even if the requirement is not included on an
Operational Compliance List. Providers may wish to consult the Operational
Compliance List when drafting Interim Amendments.
.10 Material furnished to Adopting Employers. A Provider must furnish each
Adopting Employer with a copy of the approved Pre-approved Plan, copies of any
subsequent amendments, and the most recently issued Opinion Letter for the plan from
the IRS.
.11 Effect of failure to disclose a material fact, misrepresentation of a material fact,
or to accurately provide information. A Provider’s (1) failure to disclose to the IRS a
material fact, (2) misrepresentation of a material fact in the application, or (3) failure to
accurately provide any of the information called for on any form required by this revenue
procedure may result in the inability of Adopting Employers to rely on the Opinion Letter
(for example, if the IRS revokes an Opinion Letter due to the Provider’s failure to
disclose to the IRS a material fact, the Adopting Employer would lose reliance on the

55

Opinion Letter). See section 12.03(7) regarding limitations on reliance. The Provider
may be required by the IRS to immediately notify each Adopting Employer of any of its
Pre-approved Plans affected by the failure if the Adopting Employer’s reliance on the
Opinion Letter is affected or if the failure could result in adverse tax consequences for
the Adopting Employer.
.12 Additional information may be requested. When reviewing the application for an
Opinion Letter, the IRS may, in its discretion, require any additional information that it
deems necessary, including a demonstration and/or explanation of how the variables
(options or alternatives) in the Pre-approved Plan interrelate to satisfy the Qualification
Requirements or Section 403(b) Requirements, as applicable. If a letter requesting
changes to the Pre-approved Plan is sent to the Provider or an authorized
representative, changes responsive to the letter must be received no later than 30 days
from the date of the letter, and the response must include either a copy of the plan with
the changes highlighted or, if the changes are not extensive, replacement pages. If the
changes are not received within 30 days, the application may be considered withdrawn.
An extension of the 30-day time limit will only be granted for good cause.
.13 Inadequate submissions. The IRS will return, without further action or refunding
of the user fee, plans that are not in substantial compliance with the Qualification
Requirements or Section 403(b) Requirements, as applicable, or plans that are so
deficient that they cannot be reviewed in a reasonable period of time. A plan may be
considered not to be in substantial compliance if, for example, it omits language needed
to comply with a Qualification Requirement or Section 403(b) Requirement, as
applicable, or merely incorporates those requirements by reference to the applicable
Code section. The IRS will not consider a plan with such an omission or cross-reference
until after the plan has been revised and resubmitted, and the modified plan will be
treated as a new application for approval as of the date it is resubmitted, and therefore
will be treated as filed after the Submission Period, as set forth in section 16, if
resubmitted after the Submission Period. No additional user fee will be charged if an
inadequate submission is amended to be in substantial compliance and is resubmitted
to the IRS within 30 days following the date the Provider is notified of the inadequacy.
.14 Nonidentification of questionable issues may cause delay. If a plan submitted as
part of an Opinion Letter application includes a provision that gives rise to an issue for
which contrary published authorities exist, failure to disclose to the IRS and address any
significant contrary authorities may result in requests for additional information, which
will delay action on the application. See section 14.12.
.15 No Opinion Letter for later plan amendments. The IRS will not issue an Opinion
Letter with respect to amendments made between applicable Submission Periods, and
the Provider should not submit an application between applicable Submission Periods
for an Opinion Letter with respect to plan amendments. Instead, the Provider must
submit a restated plan that incorporates the amendments during the next Submission
Period.

56

SECTION 15. ADDITIONAL REQUIREMENTS FOR MASS SUBMITTERS
.01 Opinion Letters issued to Mass Submitters.
(1) The IRS will, upon request by a Mass Submitter, issue an Opinion Letter
confirming that the form of the Mass Submitter’s plan satisfies the Qualification
Requirements or Section 403(b) Requirements, as applicable. See section 14 for the
instructions for Opinion Letter applications. In the case of a submission of a Preapproved Plan under this revenue procedure, the Mass Submitter’s application also
must be accompanied by applications for an Opinion Letter filed on behalf of 15
unaffiliated Providers, as described in section 4.01(10), that are offering the same plan
for that Cycle on a word-for-word identical basis as set forth in section 15.02, unless the
Mass Submitter has already satisfied this requirement in connection with a previous
application under this revenue procedure involving another Pre-approved Plan pursuant
to section 15.01(2). Any plan submitted by a Mass Submitter must include language
designating the Mass Submitter as agent for the Provider of the plan for purposes of
making plan amendments.
(2) After satisfying the 15-unaffiliated-Providers requirement as to the number of
adopting Providers, the Mass Submitter may submit additional applications on behalf of
other Providers that wish to adopt a plan that is word-for-word identical to the Mass
Submitter’s plan (as an identical adopter) or a plan that includes Minor Modifications to
the Mass Submitter’s plan (as a minor modifier adopter). In addition, after satisfying the
15-unaffiliated-Provider requirement for one plan of the Mass Submitter, the Mass
Submitter may submit applications for an Opinion Letter under this section 15.01 for its
other plans, regardless of the number of identical adopters of the other plans.
.02 Reduced procedural requirements for Providers that use Mass Submitter plans.
A Provider that uses a Mass Submitter’s plan must obtain an Opinion Letter. In addition
to the applicable requirements in section 14, the Mass Submitter must submit on behalf
of each Provider a completed application form that includes a declaration by the Mass
Submitter under penalty of perjury that the Provider will offer a plan that is word-forword identical to a plan of the Mass Submitter or a plan that includes Minor
Modifications to the Mass Submitter’s plan. If the Provider is offering a plan that is wordfor-word identical (including a Flexible Plan), a copy of the plan need not be submitted.
If the Mass Submitter submits a plan with Minor Modifications, it must comply with the
requirements of section 15.03(2). The application must be accompanied by the required
user fee as provided in the successors to Rev. Proc. 2023-4 (as updated annually) and
a signed certification that all necessary amendments required by the IRS in order for the
form of the Provider’s plan to satisfy the Qualification Requirements or Section 403(b)
Requirements, as applicable, have been made and communicated to all Adopting
Employers. Upon receipt of the application for an Opinion Letter, the IRS will, as soon
as administratively feasible, issue an Opinion Letter with respect to the Provider’s plan
(provided that an Opinion Letter has been issued with respect to the Mass Submitter’s

57

plan).
.03 Flexible Plans and Minor Modifications.
(1) Flexible Plan.
(a) In general. A Provider that adopts a Mass Submitter’s Flexible Plan may
include or delete any optional provision that is designated as an optional provision in the
Mass Submitter’s plan, provided the inclusion or deletion of specific optional provisions
conforms to the Mass Submitter’s written representation to the IRS concerning the
choices available to a Provider and the coordination of optional provisions. A Mass
Submitter must bracket and identify the optional provisions when submitting the plan to
the IRS and provide the IRS a written representation describing the choices available to
Providers and the coordination of optional provisions. Thus, the representation must
indicate whether a Provider’s plan may include only one of a certain group of optional
provisions, may include only a specific combination of provisions, or may exclude the
provisions entirely. Similarly, if the inclusion (or deletion) of a specific optional provision
in a Provider’s plan will automatically result in the inclusion (or deletion) of any other
optional provision, this relationship must be set forth in the Mass Submitter’s
representation. A Flexible Plan may include only optional provisions that meet the
requirements of section 15.03(1)(b), and must be drafted so that the form of any
Provider’s plan satisfies the Qualification Requirements or Section 403(b)
Requirements, as applicable, notwithstanding the inclusion or deletion of optional
provisions. For example, if a Provider’s defined contribution Qualified Pre-approved
Plan includes an optional provision that permits a portion of a participant’s account to be
invested in life insurance, then, under the terms of the Provider’s plan, the application of
the proceeds of the life insurance must meet the requirements of §§ 401(a)(11) and
417. A Flexible Plan adopted by a Provider that differs from the Mass Submitter’s plan
only because the Provider has deleted certain optional provisions from its plan in
conformance with the Mass Submitter’s representation described in this section
15.03(1)(a) is treated as a plan that is word-for-word identical to the Mass Submitter’s
plan. The IRS encourages Mass Submitters to limit the number of optional provisions
described in section 15.03(1)(b)(i) and (ii) that Mass Submitters provide under a Flexible
Plan to six investment provisions and six administrative provisions.
(b) Optional provisions. A Flexible Plan may include optional provisions that
comply with the requirements set forth in this section 15.03(1)(b). The optional
provisions may be arranged as separate optional articles or sections within a Preapproved Plan or as separate optional provisions within a single article or section. A
Flexible Plan also may include related optional provisions in the adoption agreement.
For example, if a plan document for a Mass Submitter’s Flexible Plan includes an
optional provision that would permit loans under a Provider’s plan, the adoption
agreement may also include an optional provision that would enable an Adopting
Employer to elect whether loans are available under the plan it adopts. If the Provider
does not wish to enable Adopting Employers to make loans available under their plans,

58

the Provider would need to delete from the Provider’s plan the optional provision in both
the plan document and the adoption agreement. A Provider may include or delete
optional provisions of a Mass Submitter’s plan, but once the Provider has decided to
include an optional provision, it must offer that provision to all Adopting Employers. Any
optional provision that the IRS determines does not meet the requirements of this
section 15.03(1)(b) must be changed to a non-optional provision or deleted from the
Mass Submitter’s plan. The following is an exclusive list of the permissible optional
provisions that a Flexible Plan may include:
(i) Investment provisions. A Mass Submitter may offer a variety of
investment provisions in its plan for a Provider to include or delete from the Provider’s
version of the plan. However, the plan adopted by the Provider must provide some
method for investing trust assets. Investment provisions are those provisions that
describe the plan’s methods of investing assets, including provisions such as the
availability of loans and investments in insurance contracts or other funding media, and
self-directed investments.
(ii) Administrative provisions. A Mass Submitter may offer a variety of
administrative provisions in its plan for a Provider to include or delete from the
Provider’s version of the plan. However, the plan adopted by the Provider must describe
how the plan is administered. Administrative provisions are those provisions that
describe the administration of the plan, including the powers, duties, and responsibilities
of a plan’s custodian, trustee, administrator, Adopting Employer, and other fiduciaries,
as applicable. Pursuant to section 9.06(14), every Section 403(b) Pre-approved Plan
must provide for an appendix to identify the parties responsible for the various
administrative functions under the plan. Optional administrative provisions that a
Provider may include in or delete from the plan include the allocation of responsibilities
among fiduciaries (if applicable), the resignation or replacement of fiduciaries, the
claims procedures under the plan, and the record-keeping requirements under the plan.
However, procedural provisions that are required for the form of the plan to satisfy the
Qualification Requirements or Section 403(b) Requirements, as applicable, are not
administrative provisions under this section 15. For example, an administrative provision
does not include a provision regarding the notice to participants required by § 417 and
record-keeping required by regulations under § 401(k) and/or 401(m).
(iii) Cash or Deferred Arrangement. A Mass Submitter of a defined
contribution qualified plan may include a self-contained cash or deferred arrangement
(as defined in § 401(k)) for Providers to include or delete.
(2) Minor Modifications.
(a) A plan that includes Minor Modifications to the Mass Submitter’s plan
must be submitted by the Mass Submitter on behalf of the Provider that will adopt the
modified plan. Subject to sections 15.05 and 16 and the provisions of this section
15.03(2)(a), submissions with respect to Minor Modifications will be reviewed on an

59

expedited basis, and Opinion Letters will be issued to the Provider as soon as possible
(which might be after the issuance of an Opinion Letter to other Providers (see section
17)).
(b) The IRS reserves the right to determine if the plan’s changes are Minor
Modifications (that is, if the changes are not numerous and do not require an in-depth
technical review). If the IRS determines that the changes are not minor, the plan
submitted under section 15.03(2)(c) is not entitled to expedited review and will
otherwise be treated as a non-Mass Submitter plan. In the event the plan is treated as a
non-Mass Submitter plan, the IRS will notify the Mass Submitter in writing of its
determination. Within 30 calendar days following the date that the notification is
provided, either the Mass Submitter may revise the plan so that the modifications are
minor and resubmit the revised plan, or the Provider may submit Form 4461, 4461-A, or
4461-C, whichever is applicable, and an additional user fee in an amount equal to the
difference between a non-Mass Submitter plan application user fee and a minor
modifier adopter plan application user fee. If, after the 30-day period, neither action has
been taken, the IRS may treat the application as having been withdrawn.
(c) During the Submission Period, the Mass Submitter must initially submit
the first page of the application as a placeholder with respect to each Provider that will
offer a plan that includes Minor Modifications to the Mass Submitter’s plan. After the IRS
sends a notification to the applicable Mass Submitter with respect to the lead plan
indicating that the IRS has determined that the form of the plan appears to be in full
compliance with the applicable Qualification Requirements or Section 403(b)
Requirements, as applicable, the Mass Submitter will have 21 days to submit a copy of
the Mass Submitter’s plan with the Provider’s modifications highlighted, as well as a
statement indicating the location and effect of each change. The Mass Submitter must
certify under penalties of perjury that the plan of the Provider, except for the delineated
changes, is word-for-word identical to the plan for which the Mass Submitter will be
receiving or has received an Opinion Letter. If a Mass Submitter fails to identify a
material modification, the failure is considered a material misrepresentation, and an
Adopting Employer may not rely on the Opinion Letter that may be issued with respect
to the plan for the modification or any other provision of the plan that may be affected by
the modification. See section 12.03(8) regarding limitations on reliance. The Mass
Submitter must also immediately notify any affected minor modifier adopter of the
failure, and the minor modifier adopter must notify all Adopting Employers of any of its
Pre-approved Plans affected by the failure, including an explanation of the effect of the
failure on the reliance by Adopting Employers on the Opinion Letter. If a Mass Submitter
repeatedly fails to identify the modifications, the IRS may deny permission to that Mass
Submitter to submit additional modifications.
.04 Amendments of Mass Submitter plans. If a Mass Submitter amends any of its
plans, the Mass Submitter must provide copies of the amendment to Providers that
have adopted the plan. Any Provider that does not wish to make the amendments made
by a Mass Submitter may switch to another Mass Submitter or may submit an

60

application for an Opinion Letter on its own behalf during the next applicable
Submission Period. The IRS will not issue an Opinion Letter with respect to
amendments made between applicable Submission Periods, and a Mass Submitter
should not submit an application between applicable Submission Periods for an Opinion
Letter with respect to plan amendments. Instead, the Mass Submitter must submit a
restated plan, including the amendments, during the next Cycle.
.05 Expeditious processing accorded Mass Submitter plans. Subject to section 16,
all Mass Submitters’ plans, including approved plans of a Mass Submitter adopted by
Providers, will be accorded more expeditious processing than plans submitted by nonMass Submitters, to the extent administratively feasible.
SECTION 16. FILINGS MADE AFTER THE SUBMISSION PERIOD
.01 In general. Except as set forth in section 16.02, for an application for an Opinion
Letter (including that of a minor modifier adopter of a Mass’s Submitter plan) that is
submitted after the applicable Submission Period for a Cycle but before the beginning of
the Employer Adoption Window for that Cycle, the IRS generally will not review the
application until it has reviewed and processed all applications submitted during that
Cycle’s Submission Period. However, the IRS may, in its discretion, determine whether
the processing of filings made after the Submission Period may be prioritized and
accelerated. The IRS will not accept applications for a Cycle that are submitted during
or after that Cycle’s Employer Adoption Window.
.02 Exception for identical adopter. An application for an Opinion Letter for a plan
that is word-for-word identical to a Mass Submitter Pre-approved Plan is not treated as
made after the Submission Period merely because it is submitted after the end of the
applicable Submission Period for a Cycle. Applications for a plan that is word-for-word
identical to a Mass Submitter’s Pre-approved Plan for a Cycle may be submitted until
the IRS informs the Mass Submitter that word-for-word identical applications will no
longer be accepted, which is expected to be shortly before the issuance of Opinion
Letters for the next Cycle.
SECTION 17. SCOPE OF REVIEW; TIMING OF ISSUANCE OF OPINION LETTERS
.01 Scope of review.
(1) In general. The IRS will review plans submitted during the Submission Period
for a Cycle (as well as later identical adopter applications and applications that are filed
after the Submission Period that the IRS will review in accordance with section 16)
taking into account the applicable Cumulative List for the Cycle, as described in
section 17.01(2). Generally, the IRS will consider only the items on the applicable
Cumulative List for the Cycle in determining whether to issue an Opinion Letter for that
Cycle. However, if a plan that has not been previously reviewed is submitted for a Cycle
or a plan has been amended with respect to previously approved language, the IRS will

61

also review the plan for items on earlier Cumulative Lists, as well as for any other
relevant Qualification Requirements or Section 403(b) Requirements, as applicable, that
were considered by the IRS in issuing Opinion Letters prior to the implementation of
Cumulative Lists.
(2) Cumulative List. For each Cycle, the IRS intends to publish a Cumulative List
in the IRB shortly before the start of the Cycle’s Submission Period. The Cumulative List
for a Cycle sets forth specific items the IRS has identified for review in determining
whether the form of a Pre-approved Plan that has been submitted to the IRS for an
Opinion Letter has been properly updated after the plan was submitted for an Opinion
Letter for the preceding Cycle.
.02 Timing of issuance of Opinion Letters. The IRS intends to issue Opinion Letters
for a Cycle to Mass Submitters and Providers at approximately the same time within the
Cycle for applications submitted during the Cycle’s Submission Period (other than an
application for a plan that includes Minor Modifications to a Mass Submitter plan). Prior
to issuing Opinion Letters for a Cycle, the IRS will send a notification to the applicable
Mass Submitter or Provider if the IRS determines that the plan appears to be in full
compliance with the applicable Qualification Requirements or Section 403(b)
Requirements, as applicable, based on the submission and the review as of the date of
notification. However, this notification will only indicate that the plan appears to meet the
applicable requirements under review as of the date of the notification. This notification
is for the convenience of the applicable Mass Submitter or Provider concerning the
status of its application and does not constitute an official Opinion Letter on which the
Mass Submitter or Provider may rely. In addition, the IRS reserves the right to require
changes after the notification is sent.
SECTION 18. WITHDRAWAL OF APPLICATIONS
.01 Notification and effect. A Provider may withdraw its application for an Opinion
Letter at any time prior to the issuance of an Opinion Letter by notifying the IRS in
writing of the withdrawal at the address set forth in section 24. The Provider also must
notify each Adopting Employer of the withdrawal of the application and the
consequences of the withdrawal to the Adopting Employer. As set forth in section 11,
the plan of such an Employer will become an individually designed plan unless the
Employer adopts a newly approved Pre-approved Plan during the Employer Adoption
Window for the Cycle for which the application was submitted.
.02 IRS retains information. Even though an application is withdrawn, the IRS will
retain all correspondence and documents associated with that application and will not
return them to the Provider. If an application is withdrawn, the case may be referred to
IRS Employee Plans Examinations.
SECTION 19. NONTRANSFERABILITY OF OPINION LETTER

62

An Opinion Letter issued to a Provider is not transferable. In the case of a change in
entity with respect to a Provider, an Opinion Letter issued to the Provider may not be
utilized by the changed entity. In addition, if a different entity assumes sponsorship of a
Pre-approved Plan, it must submit an application for a new Opinion Letter under the
name of the different entity and meet all the applicable requirements to be a Provider.
The application may be filed at the time of the assumption of plan sponsorship by the
new Provider, and the filing is not limited to the applicable Submission Period. The
application is subject to a reduced user fee as provided in the successors to
Rev. Proc. 2023-4 (as updated annually). The new Opinion Letter will recognize the
change in sponsorship and will not modify the scope of or change the reliance on the
original Opinion Letter. The IRS may, in appropriate circumstances, request
documentation of the assumption of sponsorship prior to issuing an Opinion Letter to
the new entity. Examples of a change in entity include, but are not limited to, the
acquisition of a Provider by another entity, the sale or transfer of the stock or assets of
the Provider to another entity, and any other circumstance that results in a change in a
Provider’s employer identification number.
SECTION 20. NOTIFICATION OF ADOPTING EMPLOYER REGARDING FAILURE
OF THE FORM OF THE PLAN TO SATISFY QUALIFICATION
REQUIREMENTS OR SECTION 403(b) REQUIREMENTS
If a Provider has knowledge that the form of an Adopting Employer’s plan may no
longer satisfy the Qualification Requirements or Section 403(b) Requirements, as
applicable, and the Provider does not submit a request to correct the failure to satisfy
those requirements under EPCRS, the Provider must notify the Adopting Employer that
the plan may no longer satisfy those requirements, advise the Adopting Employer that
adverse tax consequences may result from the failure of the form of the plan to satisfy
those requirements, and inform the Adopting Employer about the availability of EPCRS.
This section 20 does not impose a requirement on a Provider to monitor compliance of
an Adopting Employer’s plan with the Qualification Requirements or Section 403(b)
Requirements, as applicable, but it provides that the Provider has a duty to inform the
Adopting Employer if the Provider has knowledge that the Adopting Employer’s plan
may no longer satisfy those requirements.
SECTION 21. DISCONTINUED PLANS
.01 Notification to the IRS. A Provider must notify the IRS in writing if a Preapproved Plan is no longer in use by any Adopting Employer or the Provider intends to
discontinue the plan. The written notification must be sent to the address set forth in
section 24 and must refer to the file folder number appearing on the latest Opinion
Letter issued.
.02 Notification to Adopting Employers. A Provider that intends to discontinue
sponsorship of a Pre-approved Plan that has one or more Adopting Employers must
inform each Adopting Employer of the date on which the Provider will discontinue

63

sponsorship and that the Adopting Employer’s plan will cease to be a Pre-approved
Plan and will convert to an individually designed plan on that date. The Provider must
also inform each Adopting Employer that, notwithstanding the Provider’s discontinuance
of its sponsorship, if, by the end of the calendar year following the calendar year in
which the Provider discontinues sponsorship of the plan, the Adopting Employer adopts
another Pre-approved Plan and the effective date of the adoption is made retroactive to
the date of the discontinued sponsorship, then the Adopting Employer’s plan will be
treated as though it had not ceased to be a Pre-approved Plan.
SECTION 22. REVOCATION OF OPINION LETTER BY THE IRS
An Opinion Letter found to be in error or not in accord with the current procedures of
the IRS or the IRS’s current interpretation of applicable law may be revoked. See also
sections 4.01(15), 13.01, and 23.01 for other circumstances under which an Opinion
Letter may be revoked. Revocation may be applied retroactively. For this purpose, an
Opinion Letter is given the same effect as a determination letter. See generally
section 23 of Rev. Proc. 2023-4 (as updated annually). Revocation may be effected by
a notice to the Provider to which the Opinion Letter was originally issued. The Provider
must then notify each Adopting Employer of the revocation as soon as possible. The
notification to each Adopting Employer must explain how the revocation affects any
reliance an Adopting Employer has on the applicable Opinion Letter and on any
determination letter issued.
SECTION 23. RECORD KEEPING REQUIREMENTS
.01 Filing of Opinion Letter application constitutes agreement to comply with record
keeping requirements. By submitting an application for an Opinion Letter under this
revenue procedure (or by having an application filed on its behalf by a Mass Submitter),
a Provider agrees, as set forth in section 4.01(15), to comply with the requirements
imposed on the Provider by this revenue procedure, including the record keeping
requirements of this section 23. Failure to comply with the requirements imposed on the
Provider by this revenue procedure may result in the loss of eligibility to be a Provider
and the revocation of Opinion Letters that have been issued to the Provider.
.02 Maintenance and availability of records of Adopting Employers. A Provider must
maintain, or have maintained on its behalf, for each of its plans, a record of the names,
business addresses, and taxpayer identification numbers of all Adopting Employers.
However, a Provider need not maintain records with respect to employers that, to the
best of the Provider’s knowledge, ceased to maintain its Pre-approved Plan more than
three years earlier. Upon written request, a Provider must provide to the IRS a list of
Adopting Employers that indicates, to the best of the Provider’s knowledge, which of
those employers continue to maintain the plan as a Pre-approved Plan and which of
those employers have ceased to maintain the plan as a Pre-approved Plan within the
preceding three years.

64

SECTION 24. WHERE TO FILE
.01 Opinion Letters. Applications for Opinion Letters, including applications filed by
Mass Submitters, should be sent to:
Internal Revenue Service
Attn: Pre-Approved Plans Coordinator
Room 6-403, Group 7521
P.O. Box 2508
Cincinnati, OH 45201-2508
.02 Delivery Service. An application shipped by Express Mail or a delivery service
should be sent to the attention of the Pre-Approved Plans Coordinator, to:
Internal Revenue Service
550 Main Street
Room 6-403, Group 7521
Cincinnati, OH 45202
PART IV.

PROCEDURES FOR AN ADOPTING EMPLOYER APPLYING FOR A
DETERMINATION LETTER

SECTION 25. ADOPTING EMPLOYER APPLYING FOR A DETERMINATION
LETTER
.01 In general. To the extent permitted in this section 25, an Adopting Employer
may obtain reliance that the form of the plan satisfies the Qualification Requirements or
Section 403(b) Requirements, as applicable, by applying for a determination letter.
Section 25.02 provides the rules for applying for a determination letter submitted on
Form 5307, Application for Determination for Adopters of Modified Nonstandardized
Pre-Approved Plans, for review of a Pre-approved Plan using the applicable Cumulative
List. Section 25.03 provides the rules for applying for a determination letter submitted on
Form 5300, Application for Determination for Employee Benefit Plan, for review of a
Pre-approved Plan using the applicable Cumulative List. Section 25.04 provides the
rules for applying for a determination letter submitted on Form 5300 for review of a plan
treated as an individually designed plan using the Required Amendments List.
Section 25.05 provides the rules for applying for a determination letter for a partial
termination.
.02 Form 5307 application: eligibility to file, timing, and scope of review.
(1) Eligibility to file.
(a) In general. Except as set forth in section 25.02(1)(b), the following
Adopting Employers may use a Form 5307 to apply for a determination letter:

65

(i) An Adopting Employer of a Nonstandardized Plan that makes
modifications to the terms of the plan that are not extensive (amendments are
considered extensive if the IRS determines, in its sole discretion, that the plan of the
Adopting Employer is no longer substantially similar to the Nonstandardized Plan of the
Provider (see section 25.03(1)(a)(vi) for treatment of changes that are extensive and
section 25.04(1)(a) for treatment of changes that cause a plan to be treated as
individually designed)); or
(ii) An Adopting Employer of any Pre-approved Plan that amends its plan
solely to add language to satisfy the requirements of § 415 (and § 416, in the case of a
Qualified Pre-approved Plan) due to the required aggregation of plans.
(b) Exceptions. Notwithstanding the provisions of section 25.02(1)(a),
determination letter applications for the following plans must be filed on Form 5300 (if
otherwise permitted):
(i) Any determination letter application with respect to a multiple employer
Qualified Pre-approved Plan (instead, see section 25.03 and .04);
(ii) A determination letter application for a Nonstandardized Plan that is a
Qualified Pre-approved Plan, a pension plan, and not a Governmental Plan in which the
normal retirement age is lower than the age 62 safe harbor in § 1.401(a)-1(b)(2), that
requests reliance on whether the plan satisfies § 1.401(a)-1(b)(2) (instead, see
section 25.03(1)(a)(ii) or (iv));
(iii) A determination letter application for a Nonstandardized Plan that is a
Qualified Pre-approved Plan, a pension plan, and a Governmental Plan in which the
normal retirement age does not satisfy any of the safe harbors described in
§ 1.401(a)-1(b)(2)(v) of the proposed regulations, that requests reliance on whether the
plan satisfies § 1.401(a)-1(b)(2) of the proposed regulations (instead, see
section 25.03(1)(a)(iii) or (v)); or
(iv) A determination letter application for a Nonstandardized Plan
regarding a partial termination (instead, see section 25.05).
(c) Prior favorable determination letter. An Adopting Employer eligible to file
for a determination letter submitted on Form 5307 may file on a Form 5307 regardless
of whether a prior favorable determination letter has been issued with respect to the
plan.
(d) Copy of Opinion Letter. An Adopting Employer must include a copy of the
Opinion Letter for the Pre-approved Plan. See section 13 of Rev. Proc. 2023-4 (as
updated annually).

66

(2) Timing. An Adopting Employer of a Pre-approved Plan for a Cycle that is
eligible to file for a determination letter submitted on Form 5307 generally must file
during the Employer Adoption Window for the Cycle. However, if the Adopting Employer
had not previously adopted a Pre-approved Plan that had received an Opinion Letter for
the preceding Cycle, the Adopting Employer has until the start of the Employer Adoption
Window for the next Cycle to apply for a determination letter submitted on Form 5307.
For example, if an Employer did not previously adopt a Cycle 2 Pre-approved Plan,
adopts a Cycle 3 Nonstandardized Plan, and makes amendments that are not
extensive, the Adopting Employer will not be limited to the Cycle 3 Adoption Window to
file for a Form 5307 determination letter (for example, the Adopting Employer may have
adopted the Cycle 3 Nonstandardized Plan for the first time after the Cycle 3 Adoption
Window). Instead, the Adopting Employer has until the start of the Cycle 4 Employer
Adoption Window to file for a Form 5307 determination letter for the Cycle 3 plan. If the
Adopting Employer then adopts a newly approved Cycle 4 Nonstandardized Plan during
the Cycle 4 Employer Adoption Window and makes amendments that are not extensive,
the Employer only has until the end of the Cycle 4 Employer Adoption Window to file for
a Form 5307 determination letter for the Cycle 4 plan.
(3) Scope of Review. For a determination letter submitted on a Form 5307, the
Adopting Employer's plan is reviewed using the Cumulative List that was used to review
the underlying Pre-approved Plan.
.03 Form 5300 application filed by an Adopting Employer for a plan treated as a
Pre-approved Plan: eligibility to file, timing, and scope of review using Cumulative List.
(1) Eligibility to file.
(a) In general. The following Adopting Employers must use a Form 5300 to
apply for a determination letter under this section 25.03:
(i) An Adopting Employer that is the controlling member of a multiple
employer Nonstandardized Plan that is a Qualified Pre-approved Plan and that has
made modifications to the terms of the plan that are not extensive (see
section 13.05(4));
(ii) For a Qualified Pre-approved Plan that is a pension plan and not a
Governmental Plan with a normal retirement age that is lower than the age 62 safe
harbor in § 1.401(a)-1(b)(2), an Adopting Employer (or, if the plan is a multiple employer
qualified plan, the controlling member) that files a determination letter request that is
limited to a determination as to whether a plan’s normal retirement age satisfies the
requirements of § 1.401(a)-1(b)(2);
(iii) For a Qualified Pre-approved Plan that is a pension plan and a
Governmental Plan with a normal retirement age that does not satisfy any of the safe
harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations, an Adopting

67

Employer (or, if the plan is a multiple employer qualified plan, the controlling member)
that files a determination letter request that is limited to a determination as to whether a
plan’s normal retirement age satisfies the requirements of § 1.401(a)-1(b)(2) of the
proposed regulations;
(iv) For a Nonstandardized Plan that is a Qualified Pre-approved Plan, a
pension plan, and not a Governmental Plan in which the normal retirement age under
the plan is lower than the age 62 safe harbor, an Adopting Employer (or, if the plan is a
multiple employer qualified plan, the controlling member) that files a determination letter
request that includes, but is not limited to, whether the plan satisfies § 1.401(a)-1(b)(2),
and that has made additional modifications to the terms of the plan that are not
extensive; or
(v) For a Nonstandardized Plan that is a Qualified Pre-approved Plan, a
pension plan, and a Governmental Plan in which the normal retirement age does not
satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed
regulations, an Adopting Employer (or, if the plan is a multiple employer qualified plan,
the controlling member) that files a determination letter request that includes, but is not
limited to, whether the plan satisfies § 1.401(a)-1(b)(2) of the proposed regulations, and
that has made additional modifications to the terms of the plan that are not extensive.
(vi) An Adopting Employer of a Nonstandardized Plan that makes
modifications to the terms of the plan that are extensive (see section 25.02(1)(a)(i) for
what changes will be determined to be extensive and section 13.05(4) for changes that
cause a plan to be treated as individually designed and thus subject to
section 25.04(1)(a)).
(b) Prior favorable determination letter. An Adopting Employer eligible to file
for a determination letter submitted on Form 5300 under this section 25.03 may file on a
Form 5300 under this section 25.03 regardless of whether a prior favorable
determination letter has been issued with respect to the plan.
(c) An Adopting Employer that applies for a determination letter for a Preapproved Plan for one or more of the reasons described in section 25.03(1)(a) must
identify the applicable reason(s) in a cover letter to the application and include a copy of
the Opinion Letter for the Pre-approved Plan.
(2) Timing. For each Cycle, an Adopting Employer that is eligible to file for a
determination letter submitted on Form 5300 under this section 25.03 generally must file
the determination letter application during the Employer Adoption Window for the Cycle.
However, if the Adopting Employer had not previously adopted a Pre-approved Plan
that had received an Opinion Letter for the preceding Cycle, the Adopting Employer has
until the start of the Employer Adoption Window for the next Cycle to apply for a
determination letter submitted on Form 5300 under this section 25.03. For example, if a
controlling member of a multiple employer plan did not previously adopt a Cycle 2 Pre-

68

approved Plan, adopts a Cycle 3 Nonstandardized Plan, and makes amendments that
are not extensive, the Adopting Employer will not be limited to the Cycle 3 Adoption
Window to file for a Form 5300 determination letter (for example, the Employer may
have adopted the Cycle 3 Nonstandardized Plan for the first time after the Cycle 3
Adoption Window). Instead, the Adopting Employer has until the start of the Cycle 4
Employer Adoption Window to file for a Form 5300 determination letter under this
section 25.03 for the Cycle 3 plan. If the Adopting Employer then adopts a newly
approved Cycle 4 Nonstandardized Plan during the Cycle 4 Employer Adoption Window
and makes amendments that are not extensive, the Employer only has until the end of
the Cycle 4 Employer Adoption Window to file for a Form 5300 determination letter
under this section 25.03 for the Cycle 4 plan.
(3) Scope of Review. For a determination letter submitted on Form 5300 under
this section 25.03, the Adopting Employer's plan is reviewed using the Cumulative List
that was used to review the underlying Pre-approved Plan.
.04 Form 5300 application filed by an Adopting Employer for a plan treated as
individually designed: eligibility to file, timing, and scope of review using the Required
Amendments List.
(1) Eligibility to file.
(a) In general. An Adopting Employer whose plan is treated as individually
designed pursuant to section 13.05 (for example, if the Adopting Employer makes
amendments that, due to the nature and extent of the amendments, result in the IRS
determining that the plan should be treated as individually designed, as described in
section 13.05(4)) must use a Form 5300 to apply for a determination letter under this
section 25.04:
(b) If eligible under Rev. Proc. 2022-40, including the criteria that the plan
previously had not been filed for a determination letter submitted on a Form 5300 and
had not been issued a determination letter as an individually designed plan.
(2) Timing. At any time, to the extent permitted under Rev. Proc. 2022-40.
(3) Scope of Review. In accordance with Rev. Proc. 2022-40, the plan is
reviewed based on the Required Amendments List that was issued during the second
calendar year preceding the submission of the determination letter application.
.05 Form 5300 application for a partial termination. An Adopting Employer of a
Qualified Pre-approved Plan (or, if the plan is a multiple employer plan, the controlling
member) that requests a determination regarding partial termination must file using
Form 5300. Applicants may not request a determination letter with respect to the entire
plan unless the plan is otherwise eligible to be submitted for a determination letter. If the
request is limited to whether a partial termination has occurred, the Employer may file

69

on Form 5300 at any time, regardless of whether the Employer is otherwise eligible to
submit a determination letter application. If the request is not limited to whether a partial
termination has occurred, the Employer must be otherwise eligible to submit a
determination letter application pursuant to Rev. Proc. 2022-40.
.06 Procedures provided in annual revenue procedure. Determination letter filing
procedures are set forth in Rev. Proc. 2023-4, which is updated annually.
PART V.

MISCELLANEOUS

SECTION 26. EFFECT ON OTHER DOCUMENTS
.01 Part I and III of Rev. Proc. 2016-37 are clarified, modified, and superseded with
respect to a Cycle 4 (or later) Qualified Pre-approved Plan.
.02 Rev. Proc. 2017-41 is clarified, modified, and superseded with respect to a
Cycle 4 (or later) Qualified Pre-approved Plan.
.03 Sections 4, and 10 through 12 of Rev. Proc. 2019-39 are clarified, modified, and
superseded with respect to a Cycle 3 (or later) Section 403(b) Pre-approved Plan.
.04 Sections 4 through 22 and 25 of Rev. Proc. 2021-37 are clarified, modified, and
superseded with respect to a Cycle 3 (or later) Section 403(b) Pre-approved Plan.
SECTION 27. EFFECTIVE DATE
.01 In general. Except as provided in section 27.02 through .03, this revenue
procedure is effective on November 21, 2023.
.02 Sections 9 through 24 (regarding procedures for applications for Opinion
Letters) are effective with respect to:
(1) A Cycle 4 (or later) defined contribution Qualified Pre-approved Plan;
(2) A Cycle 4 (or later) defined benefit Qualified Pre-approved Plan; and
(3) A Cycle 3 (or later) Section 403(b) Pre-approved Plan.
.03 Section 25 (regarding procedures for applications for a determination letter) is
effective with respect to:
(1) An application for a determination letter submitted by an Adopting Employer
with respect to a Cycle 4 (or later) defined contribution Qualified Pre-approved Plan;
(2) An application for a determination letter submitted by an Adopting Employer

70

with respect to a Cycle 4 (or later) defined benefit Qualified Pre-approved Plan; and
(3) An application for a determination letter submitted by an Adopting Employer
with respect to a Cycle 2 (or later) Section 403(b) Pre-approved Plan. 22
SECTION 28. PUBLIC COMMENTS
The Department of the Treasury (Treasury Department) and the IRS invite
comments on this revenue procedure. Comments may be submitted electronically via
the Federal eRulemaking Portal at www.regulations.gov (type
“Revenue Procedure 2023-37” in the search field on the Regulations.gov home page to
find this revenue procedure and submit comments). Alternatively, comments may be
submitted by mail to:
Internal Revenue Service
Attn: CC:PA:LPD:PR (Revenue Procedure 2023-37), Room 5203
P.O. Box 7604
Ben Franklin Station
Washington, D.C. 20044.
The Treasury Department and the IRS will publish for public availability any
comment submitted electronically or on paper to its public docket.
SECTION 29. PAPERWORK REDUCTION ACT
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520) (PRA) requires that a
Federal agency obtain the approval of the Office of Management and Budget (OMB)
before collecting information from the public, whether such collection of information is
mandatory, voluntary, or required to obtain or retain a benefit. A Federal agency may
not conduct or sponsor, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid control number.
The collections of information in this revenue procedure are third-party disclosures,
recordkeeping, and reporting requirements listed in sections 6.04, 9.02(8), 9.06(6),
13.01, 14.03, 14.04, 14.05, 15, 23.01 and 23.02. This information is required to enable
the Commissioner, Tax Exempt and Government Entities Division of the IRS, to make
determinations in connection with compliance with the Qualification Requirements or
Section 403(b) Requirements. This information will be used to determine whether a plan
is entitled to favorable tax treatment. The likely respondents are banks, insurance
companies, other financial institutions, law, actuarial, and consulting firms, employee
benefit practitioners and employers. Any collection burden associated with this revenue
The rules regarding an Adopting Employer’s application for a determination letter apply for Cycle 2
Section 403(b) Pre-approved Plans because, although Cycle 2 has begun, Cycle 2 Opinion Letters have
not been issued and the Employer Adoption Window for Cycle 2 (during which an application for a
determination letter would generally be submitted) has not begun.
22

71

procedure is accounted for and approved by OMB under OMB control
numbers 1545-1674 and 1545-0169.
The reporting requirements mentioned within this revenue procedure are related to
the application process for an opinion letter as detailed in section 14.03. Additional
application information is needed related to: Interim Amendments as detailed in
section 14.04; substantially identical plans as detailed in section 14.05; and Mass
Submitter applications as detailed in section 15. These collection requirements are
included within the OMB approval for 1545-0169. This revenue procedure does not alter
these previously approved information collection requirements and does not create new
collection requirements not already approved by OMB.
The third-party disclosure requirements mentioned within this revenue procedure are
related to the notification requirements for Providers to inform the Adopting Employers
of plan amendments (including Interim Amendments) or the discontinuance of the plan
as detailed in sections 9.02(8), 9.06(6), and 13.01 (and section 6.04 regarding Interim
Amendments). These collection requirements are included within the OMB approval for
1545-1674. This revenue procedure does not alter these previously approved
information collection requirements and does not create new collection requirements not
already approved by OMB.
The recordkeeping requirements mentioned within this revenue procedure are
related to keeping records of the of the Opinion Letter application as detailed in
section 23.01; and amendment notifications as detailed in sections 9.02(8), 9.06(6), and
13.01. Additionally, Providers must keep records of the Adopting Employers as detailed
in section 23.02. These collection requirements are included within the OMB approval
for 1545-1674. This revenue procedure does not alter these previously approved
information collection requirements and does not create new collection requirements not
already approved by OMB.
Books or records relating to a collection of information must be retained as long as
their contents may become material in the administration of any internal revenue law.
Generally, tax returns and tax return information are confidential, as required by § 6103.
DRAFTING INFORMATION
The principal author of this revenue procedure is Patrick Gutierrez of the Office of
Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment
Taxes). For further information regarding this revenue procedure, contact Employee
Plans at (513) 975-6319 (not a toll-free number).