rp-15-36.pdf

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Part III

Administrative, Procedural, and Miscellaneous

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

Rev. Proc. 2015-36

Table of Contents

SECTION 1. PURPOSE
SECTION 2. BACKGROUND
SECTION 3. CHANGES TO REVENUE PROCEDURE 2011-49

PART I – M&P PLANS

SECTION 4. DEFINITIONS
SECTION 5. PROVISIONS REQUIRED IN M&P PLANS
SECTION 6. OPINION LETTERS - SCOPE
SECTION 7. OPINION LETTER APPLICATIONS - INSTRUCTIONS TO SPONSORS
SECTION 8. APPROVED PLANS - MAINTENANCE OF APPROVED STATUS
SECTION 9. WITHDRAWAL OF REQUESTS
SECTION 10. ABANDONED PLANS
SECTION 11. RECORD KEEPING REQUIREMENTS
SECTION 12. M&P MASS SUBMITTERS

PART II – VOLUME SUBMITTER PLANS

SECTION 13. DEFINITIONS
SECTION 14. PROVISIONS REQUIRED IN EVERY VS PLAN
SECTION 15. APPROVED PLANS - MAINTENANCE OF APPROVED STATUS
SECTION 16. ADVISORY LETTERS - SCOPE
SECTION 17. ADVISORY LETTER APPLICATIONS- INSTRUCTIONS TO VS
PRACTITIONERS
SECTION 18. VS MASS SUBMITTERS

PART III – ALL PRE-APPROVED PLANS

SECTION 19. EMPLOYER RELIANCE
SECTION 20. WHERE TO FILE AND OTHER RULES FOR APPLICATIONS AND
LETTERS
SECTION 21. AMENDMENTS
SECTION 22. REVOCATION
SECTION 23. SECOND ON-CYCLE SUBMISSION PERIOD (POST-EGTRRA) FOR
PRE-APPROVED DB PLANS

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SECTION 24. REMEDIAL AMENDMENT PERIOD
SECTION 25. EFFECT ON OTHER DOCUMENTS
SECTION 26. EFFECTIVE DATE
SECTION 27. PAPERWORK REDUCTION ACT

SECTION 1. PURPOSE

.01 This revenue procedure sets forth the procedures of the Internal Revenue
Service (IRS) for issuing opinion and advisory letters regarding the acceptability under
§§ 401, 403(a), and 4975(e)(7) of the Internal Revenue Code (Code) of the form of pre-
approved plans (that is, master and prototype (M&P) and volume submitter (VS) plans).
This revenue procedure modifies and supersedes Rev. Proc. 2011-49, 2011-44 I.R.B.
608. Section 3 describes the changes to Rev. Proc. 2011-49.

.02 This revenue procedure also extends to October 30, 2015, the deadline for
submitting on-cycle applications for opinion and advisory letters for pre-approved
defined benefit plans for the plans’ second six-year remedial amendment cycle. The
extension to October 30, 2015, applies to pre-approved defined benefit mass submitter
lead and specimen plans, word-for-word identical plans, M&P minor modifier
placeholder applications, and defined benefit non-mass submitter plans.

SECTION 2. BACKGROUND

.01 Prior to being superseded by this revenue procedure, procedures for the
issuance of opinion and advisory letters by the IRS regarding the acceptability of the
form of pre-approved plans were set forth in Rev. Proc. 2011-49 (as modified by Ann.
2012-3, 2012-4 I.R.B. 335; Ann. 2013-37, 2013-34 I.R.B. 155; Ann. 2014-4, 2014-7
I.R.B. 523; Ann. 2014-41, 2014- 52 I.R.B. 979; and Rev. Proc. 2015-6, 2015-1 I.R.B.
194). Sections 6.03(4) and 16.03(4) of Rev. Proc. 2011-49 provided that opinion and
advisory letters would not be issued for employee stock ownership plans (ESOPs).
Sections 6.03(6) and 16.03(6) provided that opinion and advisory letters would not be
issued for applicable defined benefit plans within the meaning of § 411(a)(13)(C)
(Hybrid Plans).

.02 Rev. Proc. 2015-6 sets forth the general procedures of the IRS on the
issuance of employee plans determination letters, including determination letters for
M&P and VS plans.

.03 Rev. Proc. 2007-44, 2007-2 C.B. 54, (as modified by Rev. Proc. 2008-56,
2008-2 C.B. 826; Rev. Proc. 2009-36, 2009-2 C.B. 304; Notice 2009-97, 2009-2 C.B.
972; Notice 2010-48, 2010-27 I.R.B. 9; Notice 2010-77, 2010-51 I.R.B. 851; Notice
2011-85, 2011-44 I.R.B. 605; Ann. 2012-3; Rev. Proc. 2012-50, 2012-50 I.R.B. 708;
Ann. 2013-37; Ann. 2014-4; Ann. 2014-41; and Rev. Proc. 2015-6) describes a system
of cyclical remedial amendment periods under the Code. Under this system, every

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individually designed plan qualified under § 401(a) or 403(a) has a regular five-year
remedial amendment cycle. These remedial amendment cycles are staggered and
spread over five-year periods, so that different categories of plans have different cycles.
The effect of this system is that plan sponsors may apply for new determination letters
generally only once every five years in order to continue to have a letter on which to
rely. In addition, under this system every pre-approved plan generally has a regular,
six-year remedial amendment cycle. Every pre-approved plan must be submitted to the
IRS for a new opinion or advisory letter every six years, during the applicable on-cycle
submission period at the beginning of the plan’s six-year cycle. Pre-approved defined
contribution plans have a different six-year cycle than pre-approved defined benefit
plans.

.04 Sponsors and VS practitioners maintaining pre-approved defined benefit
plans who sought opinion and advisory letters for the first six-year cycle submitted their
applications to the IRS between February 1, 2007, and January 31, 2008. The IRS’s
review took into account the requirements of the Economic Growth and Tax Relief
Reconciliation Act of 2001 (EGTRRA), Pub. L. 107-16, and other items identified in
Notice 2007-3, 2007-1 C.B. 255 (2006 Cumulative List). Adopting employers of these
pre-approved plans generally had until April 30, 2012, to adopt the plans and to apply
for a determination letter.

.05 Sponsors and VS practitioners maintaining pre-approved defined
contribution plans submitted their applications to the IRS from February 1, 2011, to April
2, 2012. The IRS’s review took into account the requirements of the Pension Protection
Act of 2006 (PPA ’06), Pub. L. 109-280, and other items identified in Notice 2010-90,
2010-52 I.R.B. 909 (2010 Cumulative List).
1
The 2010 Cumulative List consists of
statutory, regulatory, and guidance changes to plan qualification requirements that were
considered by the IRS in its review of the pre-approved defined contribution plans
submitted during the applicable on-cycle submission period for the second six-year
cycle as well as its review of single employer individually designed Cycle A plans.
Adopting employers have until April 30, 2016, to adopt these plans and to apply for a
determination letter, if eligible.

.06 The second six-year remedial amendment cycle for pre-approved defined
benefit plans began on February 1, 2013, and ends on January 31, 2019. Section
18.02(2) of Rev. Proc. 2007-44 provides that the 9-month applicable on-cycle
submission period for sponsors and VS practitioners maintaining defined benefit mass
submitter plans ended on October 31, 2013, and for sponsors and VS practitioners

1
This included requirements related to the following statutes: PPA ’06, the U.S. Troop Readiness,
Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, Pub. L. 110-28; the
Heroes Earnings Assistance and Relief Tax Act of 2008 (HEART Act), Pub. L. 110-245; the Worker,
Retiree, and Employer Recovery Act of 2008 (WRERA), Pub. L. 110-458; and the Small Business Jobs
Act of 2010 (SBJA), Pub. L. 111-240.

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maintaining non-mass submitter plans ended on January 31, 2014. Ann. 2013-37
extended the submission period for defined benefit mass submitter plans to January 31,
2014. Ann. 2014-4 provided an extension to February 2, 2015, for submissions of pre-
approved defined benefit plans by sponsors and VS practitioners seeking opinion and
advisory letters for the second six-year remedial amendment cycle. Ann. 2014-41
further extended the end of this period to June 30, 2015. Therefore, the 12-month on-
cycle submission period for both mass and non-mass submitter sponsors and VS
practitioners, word-for-word identical adopters, and M&P minor modifier placeholder
applications was scheduled to end on June 30, 2015. Section 23 of this revenue
procedure further extends this submission deadline to October 30, 2015. The 2012
Cumulative List of Changes in Plan Qualification Requirements, Notice 2012-76, 2012-
52 I.R.B. 775 (2012 Cumulative List), is to be used by plan sponsors and VS
practitioners submitting opinion or advisory letter applications for defined benefit plans
during the second remedial amendment cycle.

.07 The third six-year remedial amendment cycle for pre-approved defined
contribution plans begins on February 1, 2017, and ends on January 31, 2023. The
IRS will begin accepting opinion and advisory letter applications for pre-approved
defined contribution plans for the third six-year remedial amendment cycle on February
1, 2017. The 12-month applicable on-cycle submission period for non-mass submitter
sponsors and VS practitioners, word-for-word identical adopters, and M&P minor
modifier placeholder applications will end on January 31, 2018. As provided in section
18.02(1) of Rev. Proc. 2007-44, the 9-month applicable on-cycle submission period for
sponsors and VS practitioners maintaining defined contribution mass submitter plans
will end on October 31, 2017. The 2016 Cumulative List of Changes in Plan
Qualification Requirements, when issued, will be used by plan sponsors and VS
practitioners submitting opinion or advisory letter applications for plans during these
periods. The IRS will announce the deadline for timely adoption by employers when the
review of the pre-approved documents is close to being completed.

.08 Ann. 2011-82, 2011-52 I.R.B. 1052, describes changes to the Employee
Plans determination letter program. These changes, which eliminated features of the
determination letter program that were of limited utility, were first added by Rev. Proc.
2012-6, 2012-1 I.R.B. 197, and are currently reflected in Rev. Proc. 2015-6. Under
these procedures, many pre-approved plan adopters may no longer apply for
determination letters.

.09 It is expected that the procedures for applying for opinion and advisory
letters will be updated from time to time.

SECTION 3. CHANGES TO REVENUE PROCEDURE 2011-49

.01 Section 4 is modified to include definitions for ESOPs and cash balance
plans.
.02 Section 4.07 is modified to reduce the required number of adopting
employers necessary to qualify as a sponsor from 30 to 15 and to provide that if a

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sponsor requests an opinion letter for more than one basic plan document it must
represent to the IRS that it has at least 30 employer-clients in the aggregate, each of
which is expected to adopt at least one of the sponsor’s basic plan documents. The 30
unaffiliated sponsor requirement included in the definition of M&P Mass Submitter in
section 4.08 has been retained.

.03 Section 5 is modified to set forth additional provisions required by M&P
ESOPs and cash balance plans, as provided in section 5.15 and 5.16, respectively.
2
In
addition, section 15.13 is modified with regard to the eligibility of employees to
participate in an ESOP.

.04 Section 6.03(4) is deleted and replaced with section 6.03(4) and (5) in order
to allow sponsors to request opinion letters for ESOPs and to set forth the specific
areas for which opinion letters will not be issued for ESOPs. The remaining paragraphs
in section 6.03 have been renumbered to reflect these changes.

.05 Section 6.03(6) is deleted and replaced with section 6.03(7) in order to allow
sponsors to submit cash balance plans to the IRS and request opinion letters for plans
containing these features and to set forth specific areas for which opinion letters will not
be issued for cash balance plans.

.06 Section 7.04 is modified to eliminate the requirement that requests for
opinion letters for defined benefit plans containing integrated and nonintegrated
features must be submitted as separate filings.

.07 Section 13 is modified to make the qualification requirements for a VS Mass
Submitter consistent with those of a M&P Mass Submitter.

.08 Section 13 is modified to include definitions for ESOPs and cash balance
plans.

.09 Section 13.04 is modified to allow the submission for a VS plan to contain up
to ten related trusts for approval for each basic plan document, without an additional
user fee.

.10 Section 13.05 is modified to reduce the required number of adopting
employers necessary to qualify as a VS practitioner from 30 to 15 and to provide that if
a VS practitioner requests an advisory letter for more than one specimen plan

2
Employers currently using individually designed plans who wish to use the six-year remedial amendment
cycle, as described in Part IV of Rev. Proc. 2007-44, as an adopter of a pre-approved plan, should
complete Form 8905 Certification of Intent to Adopt Pre-Approved Plan, no later than the end of their
applicable remedial amendment cycle. For further information, see http://www.irs.gov/Retirement-Plans
.

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document it must represent to the IRS that it has at least 30 employer-clients in the
aggregate, each of which is expected to adopt at least one of the practitioner’s basic
plan documents. The 30 unaffiliated sponsor requirement included in the definition of
VS Mass Submitter in section 13.06 has been retained.

.11 Section 14 is modified to set forth additional provisions required for VS
ESOPs and cash balance plans, as provided in section 14.07 and 14.08, respectively.
In addition section 14.02 is modified with regard to the eligibility of employees to
participate in an ESOP.

.12 Section 16.03(4) is deleted and replaced with section 16.03(4) and (5) in
order to allow VS practitioners to request advisory letters for ESOPs and to set forth
specific areas for which advisory letters will not be issued for ESOPS. The remaining
paragraphs in section 16.03 have been renumbered to reflect these changes.

.13 Section 16.03(6) is deleted and replaced with section 16.03(7) in order to
allow VS practitioners to submit cash balance plans to the IRS and request advisory
letters for plans containing these features and to set forth specific areas for which
advisory letters will not be issued for cash balance plans.

.14 Section 19 is revised to delineate the scope of an employer’s reliance on an
opinion/advisory letter, pursuant to the changes to the determination letter program
described in Ann. 2011-82.

.15 Section 23 is revised to extend the deadline for submitting on-cycle
applications for opinion and advisory letters for pre-approved defined benefit plans for
the plans’ second six-year remedial amendment cycle to October 30, 2015.

PART I – M&P PLANS

SECTION 4. DEFINITIONS

.01 Master Plan - A "master plan" is a plan (including a plan covering self-
employed individuals) that is made available by a sponsor for adoption by employers
and for which a single funding medium (for example, a trust or custodial account) is
established, as part of the plan, for the joint use of all adopting employers. A master
plan consists of a basic plan document, an adoption agreement, and, unless included in
the basic plan document, a trust or custodial account document.

.02 Prototype Plan - A "prototype plan" is a plan (including a plan covering self-
employed individuals) that is made available by a sponsor for adoption by employers
and under which a separate funding medium is established for each adopting employer.
A prototype plan consists of a basic plan document, an adoption agreement, and,
unless the basic plan document incorporates a trust or custodial account agreement the

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provisions of which are applicable to all adopting employers, a trust or custodial account
document.

.03 Basic Plan Document - A "basic plan document" is the portion of a plan
containing all of the non-elective provisions applicable to all adopting employers. No
options (including blanks to be completed) may be provided in the basic plan document,
except as provided in section 12.03(1) of this revenue procedure regarding flexible
plans.

.04 Adoption Agreement - An "adoption agreement" is the portion of the plan
containing the options that may be selected by an adopting employer.

.05 Trust or Custodial Account Document (Note: This definition does not apply
if the basic plan document includes a trust or custodial account agreement the
provisions of which apply to all adopting employers.)

(1) A "trust or custodial account document" is the portion of a M&P plan
that contains the trust agreement or custodial account agreement and includes
provisions covering such matters as the powers and duties of trustees, investment
authority, and the kinds of investments that may be made.

(2) Except as provided in section 5.09 and this section 4.05, all provisions
of the trust or custodial account document must be applicable to all adopting employers
of that trust, and no options (including blanks to be completed) may be provided in the
trust or custodial account document.

(3) With respect to prototype plans, a sponsor or mass submitter may
provide up to 10 separate trust or custodial account documents that are intended for
use with any single basic plan document. Notwithstanding the preceding sentence, a
sponsor or mass submitter may submit more than 10 separate trust or custodial
account documents intended for use with any single basic plan document, provided that
an additional user fee is submitted for each trust document in excess of 10. See
section 6 of Rev. Proc. 2015-8.

(4) As provided in section 5.09, a sponsor or M&P mass submitter may
provide a trust or custodial account document designated for use only by adopters of
nonstandardized plans that provides for blanks to be completed with respect to
administrative provisions of the trust or custodial account agreement.

(5) Any trust or custodial account document (including one to be used by
adopters of standardized plans) may provide for blanks to be completed that merely
enable the adopting employer to specify the names of the plan, employer, trustee or
custodian, plan administrator and other fiduciaries, the trust year, and the name of any
pooled trust in which the plan's trust will participate.

8

.06 Opinion Letter - An "opinion letter" is a written statement issued by the IRS
to a sponsor or M&P mass submitter as to the acceptability of the form of a M&P plan
under § 401(a), 403(a), or both §§ 401(a) and 4975(e)(7) and, in the case of a master
plan, the acceptability of the master trust under § 501(a).

.07 Sponsor - A "sponsor" is any person that (1) has an established place of
business in the United States where it is accessible during every business day and (2)
represents to the IRS that it has at least 15 employer-clients, each of which is
reasonably expected to adopt the same basic plan document of the plan sponsor.

A sponsor may request an opinion letter for more than one basic plan document
provided it represents to the IRS that it has at least 30 employer-clients in the
aggregate, each of which is reasonably expected to adopt at least one of the sponsor’s
basic plan documents. The IRS reserves the right at any time to request from the
sponsor a list of the employers that have adopted or are expected to adopt the
sponsor’s M&P plans, including the employers’ business addresses and employer
identification numbers.

Notwithstanding the preceding two paragraphs, any person that has an
established place of business in the United States where it is accessible during every
business day may sponsor a plan as a word-for-word identical adopter or minor modifier
adopter of a plan of a M&P mass submitter, regardless of the number of employers that
are expected to adopt the plan.

By submitting an application for an opinion letter for a M&P plan under this
revenue procedure (or by having an application filed on its behalf by a M&P mass
submitter), a person represents to the IRS that it is a sponsor, as defined in this section
4.07, and agrees to comply with any requirements imposed on sponsors by this
revenue procedure. Failure to comply with these requirements may result in the loss of
eligibility to sponsor M&P plans and the revocation of opinion letters that have been
issued to the sponsor.

.08 M&P Mass Submitter - A "M&P mass submitter" is any person that (1) has
an established place of business in the United States where it is accessible during
every business day and (2) submits opinion letter applications on behalf of at least 30
unaffiliated sponsors each of which is sponsoring, on a word-for-word identical basis,
the same basic plan document. A flexible plan (as defined in section 12.03(1)) that is
adopted by a sponsor will be considered a word-for-word identical plan. For purposes
of determining whether 30 unaffiliated sponsors sponsor, on a word-for-word basis, the
same basic plan document, the mass submitter is treated as an unaffiliated sponsor.
For purposes of this definition, affiliation is determined under § 414(b) and (c).
Additionally, the following will be considered to be affiliated: any law firm, accounting
firm, consulting firm, etc., with its partners, members, associates, etc. A M&P mass
submitter will be treated as a M&P mass submitter with respect to all of its M&P plans

9

provided the 30 unaffiliated sponsor requirement is met with respect to at least one
basic plan document.

Notwithstanding the preceding paragraph, any person that received a favorable
opinion letter under the Tax Reform Act of 1986, Pub. L. No. 99-514, for a plan as a
M&P mass submitter under Rev. Proc. 89-9, 1989-1 C.B. 780, will continue to be
treated as a M&P mass submitter with respect to all of its M&P plans if it submits
applications on behalf of at least 10 sponsors (regardless of affiliation), each of which is
sponsoring the same basic plan document on a word-for-word identical basis. For
purposes of determining whether 10 sponsors sponsor the same basic plan document
on a word-for-word identical basis, the mass submitter is counted as one of the 10
sponsors.

.09 Standardized Plan - A "standardized plan" is a M&P plan (other than an
ESOP or Hybrid Plan) that meets the following requirements:

(1) Under the provisions governing eligibility and participation, the plan by
its terms benefits all employees described in section 5.13 (regardless of whether any
employer is treated as operating separate lines of business under § 414(r)) except
those that may be excluded under § 410(a)(1) or (b)(3). The adoption agreement may
provide options as to whether some or all of the employees described in § 410(a)(1) or
(b)(3) are to be excluded, provided that the criteria for excluding employees described
in § 410(a)(1) or (b)(3) apply uniformly to all employees. A standardized plan generally
may not deny an accrual or allocation to an employee eligible to participate merely
because the employee is not an active employee on the last day of the plan year or has
failed to complete a specified number of hours of service during the year. However, the
plan may deny an allocation or accrual to an employee who is eligible to participate if
the employee terminates service during the plan year with not more than 500 hours of
service and is not an active employee on the last day of the plan year.

A plan will not fail to satisfy the requirements of this paragraph (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 5.13, as the result of a “§ 410(b)(6)(C) transaction” will be excluded
from eligibility to participate in the plan during the period beginning on the date of the
transaction and ending on a date that is not later than the last day of the first plan year
beginning after the date of the transaction. A “§ 410(b)(6)(C) transaction” is an asset or
stock acquisition, merger, or other similar transaction involving a change in the
employer of the employees of a trade or business.

(2) The eligibility requirements under the plan are not more favorable for
highly compensated employees (as defined in § 414(q)) than for other employees.

(3) Under the plan, allocations, in the case of a defined contribution plan
(other than any cash or deferred arrangement part of the plan), or benefits, in the case

10

of a defined benefit plan, are determined on the basis of total compensation. For this
purpose, total compensation means a definition of compensation that includes all
compensation within the meaning of § 415(c)(3) and excludes all other compensation,
or that otherwise satisfies § 414(s) and § 1.414(s)-1(c).

(4) Unless the plan is a target benefit plan or a § 401(k) and/or 401(m)
plan, the plan must, by its terms, satisfy one of the design-based safe harbors
described in § 1.401(a)(4)-2(b)(2) (taking into account § 1.401(a)(4)-2(b)(4)) or §
1.401(a)(4)-3(b)(3), (4), or (5) (taking into account § 1.401(a)(4)-3(b)(6)).

(5) All benefits, rights, and features under the plan (other than those, if any,
that have been prospectively eliminated) are currently available to all employees
benefiting under the plan.

(6) Any past service credit under the plan must meet the safe harbor
in § 1.401(a)(4)-5(a)(3).

(7) Any hardship distribution must satisfy the safe harbor standards in the
regulations under § 401(k).

.10 Nonstandardized Plan - A “nonstandardized plan” is a M&P plan (including
an ESOP or Hybrid Plan that meets the requirements of this revenue procedure) that is
not a standardized plan.

.11 ESOP Definitions

(1) ESOP - An “ESOP” is an employee stock ownership plan within the
meaning of § 4975(e)(7).

(2) Exempt Loan - An “exempt loan” is a loan described in § 4975(d)(3) that
meets the requirements for exemption from the excise tax imposed under § 4975(a)
and (b) described in § 54.4975-7(b).

(3) Readily Tradable Employer Securities - “Readily tradable employer
securities” are publicly traded securities as defined in § 1.401(a)(35)-1(f)(5).

.12 Hybrid Plan Definitions

(1) Cash Balance Formula - A “cash balance formula” is a statutory hybrid
benefit formula as defined in § 1.411(a)(13)-1(d)(4) used to determine all or any part of
a participant’s accumulated benefit, 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 hypothetical interest credits.

11

(2) A Cash Balance Plan - A “cash balance plan” is a defined benefit plan
that includes a cash balance formula.

(3) Conversion Amendment - A “conversion amendment” is defined in
§ 1.411(b)(5)-1(c)(4), as (i) an amendment 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, 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 determined under a statutory hybrid
benefit formula.

(4) Hypothetical Interest - “Hypothetical interest” is an interest credit as
defined in § 1.411(b)(5)-1(d)(1)(ii)(A), which refers to 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.

(5) Offset - An “offset” is 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.

(6) Principal Credit - “Principal credit” is defined in § 1.411(b)(5)-
1(d)(1)(ii)(D) as any increase in a participant’s hypothetical account balance that is not
hypothetical interest.

(7) Statutory Hybrid Plan - A “statutory hybrid plan” is a defined benefit plan
that contains a statutory hybrid benefit formula.

(8) Variable Annuity Plan - A “variable annuity plan” is any defined benefit
plan that includes a variable annuity benefit formula as defined in § 1.411(a)(13)-
1(d)(6).

SECTION 5. PROVISIONS REQUIRED IN M&P PLANS

.01 Sponsor Amendments - M&P plans must provide a procedure for sponsor
amendment, so that changes in the Code, regulations, revenue rulings, other
statements published by the IRS, or corrections of prior approved plans may be applied
to all employers who have adopted the plan. Sponsors must make reasonable and
diligent efforts to ensure that adopting employers of the sponsor’s M&P plan have
actually received and are aware of all plan amendments and that such employers
complete and sign new adoption agreements if necessary. See section 5.11. The
provision for sponsor amendment must provide that, for purposes of reliance on the
opinion letter, the sponsor will no longer have the authority to amend the plan on behalf
of the adopting employer as of the date of the adoption of an employer amendment to
the plan to incorporate a type of plan not allowable in the M&P program described in

12

section 6.03 (e.g. the addition of enabling language for multiemployer plan features) or
as of the date the IRS notifies the sponsor that the plan is being treated as an
individually designed plan pursuant to section 24.03. Failure to comply with this
requirement may result in the loss of eligibility to sponsor M&P plans and the revocation
of opinion letters that have been issued to the sponsor.

.02 Employer Amendments - An employer that amends any provision of an
approved M&P plan including its adoption agreement (other than to change the choice
of options selected, if the plan permits or contemplates such a change) or an employer
that chooses to discontinue participation in a plan as amended by its sponsor without
substituting another approved M&P plan is considered to have adopted an individually
designed plan. However, this rule does not apply in the case of amendments permitted
under sections 5.06 and 5.09 and sample or model amendments published by the IRS
that specifically provide that their adoption by an adopter of a M&P plan will not cause
such plan to be treated as individually designed. Additionally, a plan will not be treated
as individually designed if a closing agreement under the Audit Closing Agreement
Program or a compliance statement under the Voluntary Correction Program of the
Employee Plans Compliance Resolution System (EPCRS) has been issued with
respect to the employer’s plan with regard to the amendment.
3
Also see section 19.03
regarding the effect of employer amendments on an employer’s ability to rely on an
opinion letter, and section 24 with respect to applicable remedial amendment periods.
An employer that amends a M&P plan because of a waiver of the minimum funding
requirement under § 412(d) will also be considered to have an individually designed
plan. The procedures set forth in Rev. Proc. 2015-6, as amended annually and as
related to the issuance of determination letters for individually designed plans, will then
apply to the plan as adopted by the employer. See also section 19 of Rev. Proc. 2007-
44 regarding the effect employer amendments have on eligibility for the six-year
remedial amendment cycle applicable to pre-approved plan adopters.

.03 Compensation Requirements in Nonstandardized Plans - Each
nonstandardized M&P plan must give the adopting employer the option to select total
compensation as the compensation to be used in determining allocations or benefits.
For this purpose, total compensation means a definition that includes all compensation
within the meaning of § 415(c)(3) and excludes all other compensation or that otherwise
satisfies § 414(s) under § 1.414(s)-1(c).

.04 Automatic or Optional Safe Harbor Provisions in Nonstandardized Plans -
Each nonstandardized M&P plan, other than a statutory hybrid plan as described in
section 4.12, must automatically or by option allow the adopting employer to satisfy one
of the design-based safe harbors described in § 1.401(a)(4)-2(b)(2) or in §1.401(a)(4)-
3(b)(3), (4), and (5).

3
See Section 6.05(5)(b) of Rev. Proc. 2013-12, 2013-4 I.R.B. 313.

13

.05 Anti-Cutback Provisions - M&P plans must specifically provide for the
protection provided under § 411(a)(10) and (d)(6), to the extent required, in the event
that the employer amends the plan in any manner, such as by revising the options
selected in the adoption agreement or by adopting a new M&P plan. A sponsor may
not amend its plan in a manner that could result in the elimination of a benefit to the
extent the benefit is required to be protected under § 411(d)(6) with respect to the plan
of any adopting employer, unless permitted to do so under §§ 1.401(a)-4 and 1.411(d)-
4. In addition, a M&P plan that does not contain vesting rules for all years that are at
least as favorable to participants as those provided in § 416(b), must specifically
provide that any vesting that occurs while the plan is top-heavy will not be cut back if
the plan ceases to be top-heavy. See §§ 411(d)(6)(C) and 1.411(d)-4(d) for certain
exceptions applicable to ESOPs.

.06 Adopting Employer Modification to Satisfy §§ 415 and 416 - M&P plans must
provide that plan provisions may be amended by plan language completed by the
employer in the adoption agreement if such overriding language is necessary to satisfy
§ 415 or 416 because of the required aggregation of multiple plans under these
sections. Generally, a space should be provided in the adoption agreement with
instructions for the employer to add such language as necessary to satisfy §§ 415 and
416. In addition, a space must be provided in the adoption agreement for the employer
to specify the interest rate and mortality tables used for purposes of establishing the
present value of accrued benefits in order to compute the top-heavy ratio under § 416.
Such a space must be included in both defined contribution plans and defined benefit
plans.

.07 Aggregation for § 415 compliance - Plan language must be incorporated that
aggregates all defined contribution M&P plans and all defined benefit M&P plans to
satisfy § 415(c) and (f).

.08 Top-heavy Requirements - Each plan must either provide that all of the
additional requirements applicable to 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 adoption agreement is completed. In any such 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.)

.09 Adopting Employer Modification of Trust or Custodial Account Document -
An employer that adopts a nonstandardized M&P plan will not be considered to have an
individually designed plan merely because the employer amends administrative
provisions of the trust or custodial account document (such as provisions relating to
investments and the duties of trustees), provided the amended provisions are not in
conflict with any other provision of the plan and do not cause the plan to fail to qualify
under § 401(a). For this purpose, an amendment includes modification of the language
of the trust or custodial account document and the addition of overriding language.

14

An employer that adopts a standardized M&P plan may amend the trust or
custodial account document, provided such amendment merely involves the
specification of the names of the plan, employer, trustee or custodian, plan
administrator and other fiduciaries, the trust year, or the name of any pooled trust in
which the plan's trust will participate.

.10 Provisions Required in Adoption Agreements Regarding Reliance - The
adoption agreement of every standardized and nonstandardized M&P plan must
include, in close proximity to the signature blank, a statement that describes the
limitations on employer reliance on an opinion letter. See section 19.

.11 Other Provisions Required in Adoption Agreements - Each M&P plan must
contain a dated employer signature line. The employer must sign the adoption
agreement when it first adopts the plan and must complete and sign a new adoption
agreement if the plan has been restated. In addition, the employer must complete a
new signature page if it modifies any prior elections or makes new elections in its
adoption agreement. The signature requirement may be satisfied by an electronic
signature that reliably authenticates and verifies the adoption of the adoption
agreement, or restatement, amendment or modification thereof, by the employer. The
adoption agreement must state that it is to be used with one and only one specific basic
plan document. In addition, the adoption agreement must contain a cautionary
statement to the effect that the failure to properly fill out the adoption agreement may
result in failure of the plan to qualify under § 401(a), 403(a), or 4975(e)(7), as
applicable. The adoption agreement must also contain a statement that provides that
the sponsor will inform the adopting employer of any amendments made to the plan or
of the discontinuance or abandonment of the plan.

.12 Sponsor Telephone Numbers - M&P plan adoption agreements
must include the sponsor's name, address, and telephone number (or a space for the
address and telephone number of the sponsor's authorized representative) for inquiries
by adopting employers regarding the adoption of the plan, the meaning of plan
provisions, or the effect of the opinion letter.

.13 Definition of Employee under § 414(b), (c), (m), (n), and (o) - Each M&P plan
must include a definition of employee as any employee of the employer maintaining the
plan or any other employer aggregated under § 414(b), (c), (m), or (o) and the
regulations thereunder. The definition of employee shall also include any individual
treated under § 414(n) or under the regulations under § 414(o) as an employee of any
employer described in the preceding sentence.

With respect to ESOPs, employees who meet this definition cannot participate in
the ESOP unless they are employed by the employer corporation who issues the stock
held by the ESOP or by any corporation that is a member of the same controlled group
of corporations as the employer corporation (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 1563(e)(3)(C)). With respect to ESOPs, for all other purposes, including

15

nondiscrimination testing and coverage, employees who meet the definition of
employee in the immediately preceding paragraph are treated as employees.

.14 Definition of Service under § 414(b), (c), (m), (n), and (o) - Each M&P plan
must specifically credit all service with any employer aggregated under § 414(b), (c),
(m), or (o) and the regulations thereunder as service with the employer maintaining the
plan. In addition, in the case of an individual treated under § 414(n) (or under
regulations under § 414(o)) as the employee of any employer described in the previous
sentence, service with such employer must be credited to such individual.

.15 Additional Provisions Required for ESOPs - ESOPs will not receive
favorable opinion letters under this revenue procedure unless, in addition to complying
with the requirements of subsections 5.01 through 5.14 of this revenue procedure, the
plan documents include the following:

(1) 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) A provision that defines employer stock in accordance with § 409(l)(1)
or (2);

(3) Provisions that meet the diversification requirements of § 401(a)(28)(B),
or, if applicable, § 401(a)(35);

(4) 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 C.B. 84;

(5) Provisions that meet the voting requirements of § 409(e);

(6) Provisions that meet the right to demand and put option requirements of
§ 409(h), to the extent applicable;

(7) Provisions that meet the distribution requirements of § 409(o);

(8) 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) 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, the requirements described in § 415(c)(6);

(10) If an ESOP provides for forfeitures, provisions that meet the forfeiture
requirement of § 54.4975-11(d)(4);

16

(11) If an ESOP holds employer securities consisting of stock in an S
corporation, provisions that meet the requirements of § 409(p) and § 1.409(p)-1;

(12) If an ESOP is maintained by employers that are C corporations,
provisions that meet the requirements of § 409(n); and

(13) Provisions (in the adoption agreement) that identify the plan sponsor
as being either a C corporation or an S corporation.

.16 Additional Provisions Required for Cash Balance Plans - Plans containing
cash balance features will not receive favorable opinion letters unless, in addition to
complying with the requirements of subsections 5.01 through 5.14 of this revenue
procedure, they meet the following requirements:

(1) Prior benefit structures protected - All cash balance plans must ensure
compliance with the anti-cutback provisions of § 411(d)(6). To receive a favorable
opinion letter under this revenue procedure, a cash balance plan must provide that, at
all times, prior accrued benefits (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 must comply with § 1.411(b)(5)-
1(c). However, a favorable 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
contain any structure of principal credits that increase with age, service, or 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 M&P basic plan
document and/or adoption agreement.

SECTION 6. OPINION LETTERS - SCOPE

.01 General Limits on Opinion Letters - Opinion letters will be issued only to
sponsors or M&P mass submitters. Opinion letters constitute determinations as to the
qualification of the plans as adopted by particular employers only under the
circumstances, and to the extent, described in section 19. In the case of prototype
plans, opinion letters do not constitute rulings or determinations as to the exempt status
of related trusts or custodial accounts.

17

.02 Nonapplicability of this Revenue Procedure to IRAs (including traditional
IRAs, Roth IRAs, SEPS, and Simple IRAs) and section 403(b) Plans - Opinion letters
will not be issued under this revenue procedure for prototype plans intended to meet
the requirements for individual retirement arrangements under § 408 or for § 403(b)
plans (see Rev. Proc. 87-50, 1987-2 C.B. 647; Rev. Proc. 97-29, 1997-1 C.B. 698; Rev.
Proc. 98-59, 1998-2 C.B. 727; Rev. Proc. 2010-48, 2010-50 I.R.B. 828; Rev. Proc.
2013-22, 2013-18 I.R.B. 985; Rev. Proc. 2014-28, 2014-16 I.R.B. 944; and Rev. Proc.
2015-22, 2015-11 I.R.B. 754).

.03
Areas Not Covered by Opinion Letters - Opinion letters will not be issued for:

(1) Multiemployer plans;

(2) Union plans (this does not preclude a M&P plan from covering
employees of the employer who are included in a unit covered by a collective
bargaining agreement or the adoption of a M&P plan pursuant to such agreement as a
single-employer plan that covers only employees of the employer);

(3) Stock bonus plans other than ESOPs;

(4) ESOPs that are a combination of a stock bonus plan and a money
purchase plan;

(5) ESOPs that provide for the holding of preferred employer stock, even if
such stock is described in § 409(l)(3);

(6) Pooled fund arrangements contemplated by Rev. Rul. 81-100, 1981-1
C.B. 326 (as modified by Rev. Rul. 2004-67, 2004-2 C.B 28; Rev. Rul. 2011-1, 2011-2
I.R.B. 251; Notice 2012-6, 2012-3 I.R.B. 293; and Rev. Rul. 2014-24, 2014-37 I.R.B.
529);

(7) Statutory hybrid plans with any of the following features:

(a) Any 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”);

(b) Provisions that allow for hypothetical interest crediting 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).

(c) Provisions that allow a rate used to determine hypothetical interest to
be based on actual return on plan assets or a subset of plan assets (as described in

18

§1.411(b)(5)-1(d)(5)(ii)) or the rate of return on certain RICs (as described in
§1.411(b)(5)-1(d)(5)(iv)).

(d) 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”);

(e) Provisions that use 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);

(f) Provisions that provide for funding exclusively through insurance
contracts as described in § 412(e)(3); and

(g) Provisions that provide for offsets of benefits accrued under another
plan (the “offsetting plan”), unless:

(i) 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;

(ii) The cash balance formula is treated as a lump sum-based
benefit formula under § 1.411(a)(13)-1(d)(3) only if 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;

(iii) The offset meets the safe-harbor requirements of § 1.401(a)(4)-
8(d) (except that the offset can be computed by subtracting the account balance under
the offsetting plan from the hypothetical account balance under the cash balance
formula), including the requirement that the offsetting plan cannot be a section 401(k)
plan or a section 401(m) plan;

(iv) 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;

(v) The offset is applied on a uniform basis for all participants;

(vi) 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;

19

(vii) Accrued benefits, considered in conjunction with defined
contribution accounts subject to any offset, meet nondiscrimination requirements; and

(viii) 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.

(8) Plans described in § 414(k) (relating to a defined benefit plan that
provides a benefit derived from employer contributions that is based partly on the
balance of the separate account of a participant);

(9) Target benefit plans, other than plans that, by their terms, satisfy each
of the safe harbor requirements described in § 1.401(a)(4)-8(b)(3)(i), as well as the
additional rules in § 1.401(a)(4)-8(b)(3)(ii) through (vii);

(10) Defined benefit plans that provide for employee contributions (other
than statutory hybrid plans that accepted employee contributions prior to the first plan
year after the effective date of this revenue procedure);

(11) Plans that would not satisfy the qualification requirements except as
governmental plans as described in § 414(d);

(12) Church plans described in § 414(e) that have not made the election
provided by § 410(d);

(13) Plans under which the § 415 limitations are incorporated by reference;

(14) Plans that incorporate the ADP test under § 401(k)(3) or the ACP test
under § 401(m)(2) by reference;

(15) Section 401(k) plans (standardized and nonstandardized) that provide
for hardship distributions under circumstances other than those described in the safe
harbor standards in the regulations under § 401(k);

(16) Fully-insured § 412(e)(3) plans, other than non-statutory hybrid plans
that by their terms satisfy the safe harbor in § 1.401(a)(4)-3(b)(5);

(17) Plans that fail to contain a provision reflecting the requirements of §
414(u) (see Rev. Proc. 96-49, 1996-2 C.B. 369);

(18) Plans that include purported fail-safe provisions for § 401(a)(4) or the
average benefit test under § 410(b);

20

(19) Plans that include blanks or fill-in provisions for the employer to
complete, unless the provisions have parameters that preclude the employer from
completing the provisions in a manner that could violate the qualification requirements;

(20) Plans designed to satisfy the provisions of § 105;

(21) Plans that include § 401(h) accounts;

(22) Eligible combined plans within the meaning of § 414(x)(2); or

(23) Variable annuity plans and plans that provide for accruals that are
determined in whole or in part based on the value of or rate of return on identified
assets, including plan assets.

.04 The IRS may, in its discretion, decline to issue opinion letters for other types
of plans not described in this section.

SECTION 7. OPINION LETTER APPLICATIONS - INSTRUCTIONS TO SPONSORS

.01 The IRS Issues Opinion Letters -The IRS will, upon the request of a
sponsor, issue an opinion letter as to the acceptability of the form of the sponsor's M&P
plan and any related trust or custodial account documents under §§ 401(a), 403(a),
501(a), and 4975(e)(7).

.02 Procedure for Requesting Opinion Letters - A request for an opinion letter
relating to a M&P plan must be submitted on the current version of Form 4461,
Application for Approval of Master or Prototype or Volume Submitter Defined
Contribution Plans, Form 4461-A, Application for Approval of Master or Prototype or
Volume Submitter Defined Benefit Plan, or Form 4461-B, Application for Approval of
Master or Prototype or Volume Submitter Plans (Mass Submitter Adopting Sponsor or
Practitioner), as appropriate. Additionally, the M&P request must be accompanied by
the required user fee submitted with Form 8717-A, User Fee for Employee Plan Opinion
or Advisory Letter Request, a signed certification that all necessary amendments
required by the IRS to retain the qualified status of the sponsor’s plan have been made
and communicated to all adopting employers, and Attachment I to Form 4461, or
Attachment I-A to Form 4461-A, as applicable. These forms may be downloaded from
the Internet at the following address: http://www.irs.gov/Retirement-Plans
/Preapproved-
Plan-Submission-Procedures. All information on the first page of the application must
be typed. The request must be sent to the address in section 20 of this revenue
procedure.

.03 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 21.03. To expedite the review of substantially identical
plans that are not mass submitter plans, the IRS encourages plan drafters and

21

sponsors 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 sponsor);

(2) A list of all plans written by the plan drafter that are substantially
identical to the lead plan (including the information described in paragraph (1) above);

(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 penalty of perjury by the plan drafter, that
the information described in paragraph (3) above is true and complete. If the sponsor
or plan drafter is aware that a lead plan or any substantially identical plan has been
assigned for review to a specialist, the cover letter should also indicate the name of the
specialist, if possible. To the extent feasible, lead plans and substantially identical
plans should be submitted together. The IRS will regard the information and
certification described in paragraph (3) above and this paragraph (4) as a material
representation for purposes of issuing an opinion letter.

.04 Separate Applications Required for Different Categories of M&P Plans/Use
of Same Basic Plan Document by Multiple Plans - A M&P adoption agreement may not
contain any combination of profit-sharing, money purchase (other than target benefit),
ESOP, target benefit, or defined benefit plan features. Thus for example, a single
adoption agreement may not contain features of both a money purchase plan and a
target benefit plan. In addition, one basic plan document may not be used for both
defined benefit and defined contribution plans. Provided that the provisions of the basic
plan document are identical for all plans using that document (that is, the basic plan
document contains no elective or optional features), separate defined contribution plans
may use the same basic plan document and separate defined benefit plans may use
the same basic plan document. Accordingly, separate defined contribution adoption
agreements may be associated with the same defined contribution basic plan
document. For example, a sponsor may submit one defined contribution basic plan
document with adoption agreements for a money purchase plan, a target benefit plan,
and a profit-sharing plan. The adoption agreement submitted for a defined benefit plan
may contain any combination of plan provisions providing integrated (that is, that
provide for permitted disparity) and non-integrated traditional formulas, and a cash
balance formula. A separate adoption agreement and completed application form must
be submitted with respect to each defined benefit plan and each defined contribution
plan. In the case of a simultaneous submission of plans using the same basic plan
document, only one copy of the basic plan document should be provided. If the
requests are not simultaneous, the sponsor must submit a copy of the basic plan

22

document with each submission and include a cover letter identifying the original
submission. The number of such basic plan document must remain the same as in the
prior submission.

.05 Sample Language - A Listing of Required Modifications (LRM) containing
sample language to be used in drafting M&P plans is available from the IRS. Such
language is not automatically required in M&P plans but should be used as a guide in
drafting such plans. To expedite the review of their plans, sponsors are encouraged to
use LRM language and to identify the location of such language in their plan
documents. LRMs may be downloaded from the Internet at the following address:
http://www.irs.gov/Retirement-Plans/Listing-of-Required-Modifications-LRMs

.06 Material Furnished to Adopting Employers - A sponsor must furnish each
adopting employer with a copy of the approved plan, copies of any subsequent
amendments, and the most recently issued opinion letter from the IRS.

.07 Timing of Issuance of Opinion Letters - The IRS intends to issue opinion
letters to M&P mass submitters and sponsors (as well as advisory letters to VS mass
submitters and VS practitioners) at approximately the same time within the applicable
six-year cycle. In the interim, the IRS will send a notification to the applicable M&P or
VS mass submitter, sponsor, or VS practitioner, if the IRS determines that the plan
appears to be in full compliance with the applicable qualification requirements, based
on the submissions and the completed review. Notwithstanding the preceding
sentence, this notification only provides assurance that the IRS believes the plan
appears to meet the applicable qualification requirements under review as of the date of
the notification. This notification is for the convenience of the applicable sponsor, VS
practitioner, or mass submitter, but does not constitute an official opinion or advisory
letter. Until issuance of the official opinion or advisory letter, no reliance exists. In
addition, the IRS reserves the right to require changes after the notification is sent, in its
sole discretion.

SECTION 8. APPROVED PLANS - MAINTENANCE OF APPROVED STATUS

.01 Cumulative List in Six-Year Cycle - Rev. Proc. 2007-44 provides that
sponsors of pre-approved M&P plans must submit requests for opinion letters during
the applicable on-cycle submission period for a six-year cycle in order to continue to
rely on their opinion letters. Sponsors may apply for opinion letters at other times, but
these filings will be “off-cycle” filings as described in section 21.03 of this revenue
procedure. The IRS will review the plans that have been submitted during the
applicable on-cycle submission period for a six-year cycle taking into account the
applicable Cumulative List that identifies changes in the qualification requirements of
the Code as well as items of published guidance relating to the plan qualification
requirements, such as regulations and revenue rulings. However, in order to be
qualified, a plan must comply in operation with all relevant qualification requirements,
not just those on the applicable Cumulative List.

23

.02 Subsequent Required Interim Amendments - Except as otherwise provided
in future guidance, in the event of changes in qualification requirements resulting from
future guidance, or other regulatory or statutory changes that were not taken into
account in issuing the opinion letter, an approved M&P plan must be amended by the
sponsor and, if necessary, the employer, to retain its approved status if any provisions
therein fail to meet the requirements of law, regulations, or other issuances and
guidelines affecting qualification. See section 5.01 of Rev. Proc. 2007-44 regarding the
time by which such amendments must be adopted. Failure to so amend could result in
the loss of a plan’s qualified status. However, this does not change the applicable on-
cycle submission period for the six-year cycle when sponsors must request opinion
letters, which will still occur only once every six years. Sponsors are required to make
reasonable and diligent efforts to ensure that each employer that, to the best of the
sponsor’s knowledge, continues to maintain the plan as a M&P plan amends its plan
when necessary.

The plan must operationally comply with any changes in qualification
requirements and the terms of the plan as ultimately amended to reflect the changes.

.03 Loss of Qualified Status - If a sponsor reasonably concludes that an
employer’s M&P plan may no longer be a qualified plan and the sponsor does not or
cannot submit a request to correct the qualification failure under EPCRS, it is
incumbent on the sponsor to notify the employer that the plan may no longer be
qualified, advise the employer that adverse tax consequences may result from loss of
the plan’s qualified status, and inform the employer about the availability of EPCRS.
See Rev. Proc. 2013-12.

SECTION 9. WITHDRAWAL OF REQUESTS

.01 Notification and Effect - A sponsor may withdraw its request for an opinion
letter at any time prior to the issuance of such letter by notifying the IRS in writing of
such withdrawal, at the address provided in section 20.01. The sponsor must also
notify each employer who adopted the plan that the request has been withdrawn. The
plan of such an employer will become an individually designed plan unless the
employer adopts another pre-approved plan. See Rev. Proc. 2007-44.

.02 IRS Retains Information - Even though a request is withdrawn, the IRS will
retain all correspondence and documents associated with that request and will not
return them to the sponsor. If a request is withdrawn, the case may be referred to IRS
Employee Plans Examinations, which has audit jurisdiction over the returns of any
employers that have adopted the plan.

SECTION 10. ABANDONED PLANS

.01 Notification to the IRS - A sponsor must notify the IRS in writing if an
approved M&P plan is no longer used by any employer and the sponsor no longer
intends to offer the plan for adoption. Such written notification must be sent to the

24

address in section 20 and must refer to the file folder number appearing on the latest
opinion letter issued.

.02 Notification to Employers - A sponsor that intends to abandon an approved
M&P plan that is in use by any adopting employer must inform each adopting employer
that the form of the plan has been terminated, and that the employer's plan will become
an individually designed plan (unless the employer adopts another pre-approved plan).
After so informing all adopting employers, the sponsor should notify the IRS in
accordance with subsection 10.01 above.

SECTION 11. RECORD KEEPING REQUIREMENTS

.01 Filing of Opinion Letter Application Constitutes Agreement to Comply with
Record Keeping Requirements - By submitting an application for an opinion letter under
this revenue procedure (or by having an application filed on its behalf by a M&P mass
submitter), a M&P plan sponsor agrees, as provided in section 4.07, to comply with the
requirements imposed on the sponsor by this revenue procedure, including the record
keeping requirements of this section. Failure to comply with the requirements imposed
on the sponsor by this revenue procedure may result in the loss of eligibility to sponsor
M&P plans and the revocation of opinion letters that have been issued to the sponsor.

.02 Maintenance and Availability of Records of Adopting Employers - A M&P
plan sponsor must maintain, or have maintained on its behalf, for each of its plans, a
record of the names, business addresses, and taxpayer identification numbers of all
employers that have adopted the plan. However, a sponsor need not maintain records
with respect to employers that, to the best of the sponsor's knowledge, ceased to
maintain the plan as a M&P plan more than three years earlier. Upon written request, a
sponsor must provide to the IRS a list of such adopting employers that indicates, to the
best of the sponsor's knowledge, which of such employers continue to maintain the plan
as a M&P plan and which of such employers have ceased to maintain the plan as a
M&P plan within the preceding three years.

SECTION 12. M&P MASS SUBMITTERS

.01 Opinion Letters Issued to M&P Mass Submitters

(1) The IRS will, upon request by a M&P mass submitter, issue an opinion
letter as to the acceptability of the form of the mass submitter's M&P plan and any
related trust or custodial account documents under §§ 401(a), 403(a), 4975(e)(7), and
501(a). With respect to its plan, the M&P mass submitter must submit a completed
Form 4461 or 4461-A, and Attachment I to Form 4461 or Attachment I-A to Form 4461-
A, as applicable, to the address in section 20. The first page of the Form 4461 or 4461-
A must be typed. In the case of an initial submission of a basic plan document under
this revenue procedure, the M&P mass submitter’s application must also be
accompanied by applications for opinion letters filed on behalf of the requisite number
of identical adopters (as determined under section 4.08), unless the M&P mass

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submitter has already satisfied this requirement in connection with a previous
application under this revenue procedure involving another basic plan document. Any
plan submitted by a M&P mass submitter must include language designating the M&P
mass submitter as agent for the sponsor for purposes of making plan amendments.
The M&P request must be accompanied by the required user fee submitted with Form
8717-A, and a signed certification that all necessary amendments required by the IRS
to retain the qualified status of the M&P mass submitter’s plan have been made and
communicated to all adopting sponsors.

These forms and attachments may be
downloaded from the Internet at the following address: http://www.irs.gov/Retirement-
Plans/Preapproved-Plan-Submission-Procedures.

(2) After satisfying the requirement as to the number of adopting sponsors,
the M&P mass submitter may submit additional applications on behalf of other sponsors
that wish to adopt a word-for-word identical plan or a plan that contains minor
modifications from the mass submitter plan, as provided in section 12.03(2). In
addition, the M&P mass submitter may then submit requests for opinion letters under
this section 12.01 for its other plans, regardless of the number of identical adopters of
such other plans.

(3) The IRS intends to issue opinion letters to M&P mass submitters and
sponsors (as well as advisory letters to VS mass submitters and VS practitioners) at
approximately the same time within the applicable six-year cycle. In the interim, the
IRS will send a notification to the applicable M&P or VS mass submitter, sponsor, or VS
practitioner, if the IRS determines that the plan appears to be in full compliance with the
applicable qualification requirements based on the submissions and the completed
review. Notwithstanding the preceding sentence, this notification only provides
assurance that the IRS believes the plan appears to meet the applicable qualification
requirements under review as of the date of the notification. This notification is for the
convenience of the applicable sponsor, VS practitioner, or mass submitter, but does not
constitute an official opinion or advisory letter. Until issuance of the official opinion or
advisory letter, no reliance exists. The IRS reserves the right to require changes after
the notification is sent, in its sole discretion.

.02 Reduced Procedural Requirements for Sponsors That Use Mass Submitter
Plans - A sponsor of a M&P plan of a mass submitter must obtain an opinion letter. For
qualification, or if the sponsor's plan includes modifications, the M&P mass submitter
must submit on behalf of the sponsor a completed Form 4461-B which contains a
declaration by the M&P mass submitter under penalty of perjury that the sponsor has
adopted a M&P plan that is word-for-word identical to a plan of the M&P mass
submitter, or a M&P plan that is a minor modification of the mass submitter's plan. The
Form 4461-B must be typed. If the sponsor is sponsoring a word-for-word identical plan
(including a flexible plan), a copy of the plan need not be submitted. If the M&P mass
submitter submits a plan with minor modifications, it must comply with the requirements
of section 12.03(2). The request must be accompanied by the required user fee
submitted with Form 8717-A and a signed certification that all necessary amendments
required by the IRS to retain the qualified status of the sponsor’s plan have been made

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and communicated to all adopting employers. Upon receipt of the request for an
opinion letter, the IRS will, as soon as administratively feasible, issue an opinion letter
with respect to the sponsor’s plan (provided that an opinion letter has been issued with
respect to the M&P mass submitter’s plan).

.
03 Definitions - (1) Flexible Plan

(a) In general - A "flexible plan" is a plan submitted by a M&P mass
submitter that contains optional provisions (as defined in (b) below). Sponsors that
adopt the flexible plan may include or delete any optional provision that is designated
as such in the M&P mass submitter's plan, provided the inclusion or deletion of specific
optional provisions conforms to the M&P mass submitter's written representation to the
IRS concerning the choices available to sponsors and the coordination of optional
provisions. A M&P mass submitter must bracket and identify the optional provisions
when submitting such plan, and must also provide the IRS a written representation
describing the choices available to sponsors and the coordination of optional provisions.
Thus, such a representation must indicate whether a sponsor's plan may contain only
one of a certain group of optional provisions, may contain only a specific combination of
provisions, or may exclude the provisions entirely. Similarly, if the inclusion (or deletion)
of a specific optional provision in a sponsor's plan will automatically result in the
inclusion (or deletion) of any other optional provision, this must be set forth in the M&P
mass submitter's representation. A flexible plan may contain only optional provisions
that meet the requirements of (b) below, and must be drafted so that the qualification of
any sponsor's plan will not be affected by the inclusion or deletion of optional
provisions. For example, if a sponsor's defined contribution plan contains an optional
provision that allows a portion of a participant's account to be invested in life insurance,
then under the terms of the sponsor's plan, the application of the proceeds must meet
the requirements of §§ 401(a)(11) and 417. A flexible plan adopted by a sponsor that
differs from the M&P mass submitter plan only because the sponsor has deleted certain
optional provisions from its plan in conformance with the M&P mass submitter's
representation described in this paragraph will be treated as a word-for-word identical
plan to the M&P mass submitter plan. The IRS encourages M&P mass submitters to
limit the number of optional provisions described in (b)(i) and (ii) below, that they
provide under a flexible plan to six investment provisions and six administrative
provisions.

(b) Optional Provisions - A flexible plan may contain optional provisions
that comply with the requirements set forth in this paragraph. The optional provisions
may be arranged as separate optional articles or as separate optional provisions within
a single article. A flexible plan may also contain optional provisions in the adoption
agreement. For example, if a M&P mass submitter flexible plan basic plan document
contains an optional provision that would allow for loans under a sponsor's M&P plan,
the adoption agreement could also include an optional provision that would enable an
adopting employer to elect whether loans will be available under the plan it adopts. If
the sponsor does not wish to enable adopting employers to make loans available under

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their plans, both the basic plan document optional provision and the adoption
agreement optional provision would be deleted from the sponsor's M&P plan. Sponsors
may include or delete optional provisions of M&P mass submitter plans, but once the
sponsor has decided to include an optional provision, it must offer that provision to all
adopting employers. Any optional provision that the IRS determines does not meet the
requirements of this section will have to be changed to a non-optional provision or
deleted from the M&P mass submitter's plan. The following is an exclusive list of the
allowable optional provisions that a flexible plan may contain:

(i) Investment Provisions - A M&P mass submitter may offer a
variety of investment provisions in its plan for sponsors to include or delete from their
version of the plan. However, the plan as adopted by the sponsor must provide some
method for investing trust assets. Investment provisions are those provisions that
describe the plan's methods of investing the trust or custodial funds, including
provisions such as the availability of loans and investments in insurance contracts or
other funding media, and self-directed investments. (Also see sections 4.05 and 5.09
regarding flexibility permitted in trust or custodial account documents.)

(ii) Administrative Provisions - A M&P mass submitter may offer a
variety of administrative provisions in its plan for sponsors to include or delete from their
version of the plan. However, the plan as adopted by the sponsor must describe how
the plan will be administered. Administrative provisions are those provisions that
describe the administration of the plan, including the powers, duties, and
responsibilities of a plan's custodian, trustee, administrator, employer, and other
fiduciaries. Administrative provisions include the allocation of responsibilities among
fiduciaries, the resignation or replacement of fiduciaries, claims procedures under the
plan, and record-keeping requirements. However, procedural provisions that are
required for plan qualification are not administrative provisions under this section. For
example, provisions that provide for the notice to participants required by § 417 and
record-keeping required by regulations under §§ 401(k) and (m) are not administrative
provisions for purposes of this revenue procedure, and may not be optional provisions.

(iii) Cash or Deferred Arrangement - A M&P defined contribution
mass submitter (other than an ESOP) may include a self-contained cash or deferred
arrangement (as defined in § 401(k)) for sponsors to include or delete.

(c) Addition of Optional Provisions by the M&P Mass Submitter - A M&P
mass submitter may add additional optional provisions to its plan after a favorable
opinion letter is issued. Generally, the addition of such optional provisions will not be
treated as a plan amendment for purposes of this revenue procedure, Rev. Proc 2015-
6, and Rev. Proc. 2015-8, 2015-1 I.R.B. 235. Accordingly, sponsors and adopting
employers will not be required to obtain new opinion and determination letters in order
to preserve reliance. However, the addition of a cash or deferred arrangement or any
change to the language of the adoption agreement subsequent to the issuance of an
opinion letter will be treated as a plan amendment to the M&P mass submitter's plan,

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and the requirements of subsection .04 of this section 12 will then apply. The M&P
mass submitter must submit such additional optional provisions to the IRS, along with a
completed Form 4461 or 4461-A, as applicable, and a check or money order in the
amount specified in section 6.04(6) of Rev. Proc. 2015-8. No opinion letter will be
issued to the M&P mass submitter or any adopting sponsor with respect to the addition
of these optional provisions. Instead, a letter will be issued to the M&P mass submitter
notifying it that the addition of such optional provisions will not affect the status of
favorable opinion and determination letters issued to sponsors and adopting employers.

(d) Notification to Employer - If a M&P mass submitter adds optional
provisions, as described in the preceding paragraph, all adopting sponsors who wish to
include the additional optional provisions must furnish each adopting employer with a
copy of the plan that includes such additional provisions. If a sponsor decides to
include or delete an optional provision after it initially adopted the plan, it must also
furnish each adopting employer with a copy of the new plan. However, if such inclusion
or deletion results in a change to the language of the adoption agreement, such change
will be treated as a plan amendment and the sponsor and its adopting employers may
not continue to rely on previously issued opinion letters.

(2) Minor Modifications

(a) A "minor modification" is a minor change to an otherwise word-for-
word identical plan of the M&P mass submitter that does not require an in-depth
technical review. For example, a change from five-year 100% vesting to three-year
100% vesting is a minor modification. On the other hand, a change in the method of
accrual of benefits in a defined benefit plan would not be considered a minor
modification. A minor modification must be submitted by the M&P mass submitter on
behalf of the sponsor that will adopt the modified plan. Subject to sections 12.05 and
21.03 and the provisions of this section, submissions with respect to minor
modifications will be reviewed on an expedited basis and opinion letters will be issued
to the sponsor as soon as possible.

(b) The IRS reserves the right to determine if such changes are actually
minor. If it is determined that the changes are extensive or require an in-depth
technical review, the plan submitted under the next paragraph will not be entitled to
expedited review and will otherwise be treated as a non-mass submitter plan. In the
event the plan is treated as a non-mass submitter plan, the IRS will notify the M&P
mass submitter in writing of its determination. Within 30 days following the date of such
communication, either the M&P mass submitter may revise the plan so that the
modifications are minor and resubmit the revised plan, or the sponsor may submit Form
4461 or 4461-A, whichever is applicable, and an additional user fee in an amount equal
to the difference between a non-mass submitter plan application user fee and a minor
modifier application user fee. If, after such 30 day period neither action has been
taken, the application may be considered withdrawn.

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(c) The M&P mass submitter must initially submit the first page of the
applicable Form 4461-B, as a placeholder. Such form must be typed. When the IRS
sends a notification to the applicable sponsor with respect to the lead plan indicating
that the IRS has determined that the plan appears to be in full compliance with the
applicable qualification requirements, as described above, the M&P mass submitter
must submit a copy of the M&P mass submitter's plan with the modifications
highlighted, as well as a statement indicating the location and effect of each change.
The M&P mass submitter must certify under penalty of perjury that the plan of the
sponsor, except for the delineated changes, is word-for-word identical to the plan for
which the M&P mass submitter received a favorable opinion letter. If a M&P mass
submitter fails to identify each modification, such failure will be considered a material
misrepresentation, and an employer may not rely on any opinion letter that may be
issued with respect to the plan. If a M&P mass submitter repeatedly fails to identify
such modifications, the IRS may deny permission to that M&P mass submitter to submit
additional modifications.

.04 Amendments of M&P Mass Submitter Plans - If a M&P mass submitter
amends the plan, the mass submitter must provide copies of the amendment to
sponsors who have adopted the plan. Any sponsor that does not wish to make the
amendments made by a M&P mass submitter may switch to another M&P mass
submitter or may submit an application for an opinion letter on its own behalf during the
next applicable on-cycle submission period for pre-approved plans. A M&P mass
submitter should not submit an application for an opinion letter with respect to plan
amendments. The IRS will not issue an opinion letter with respect to amendments
made between the applicable on-cycle submission periods, and the M&P mass
submitter should submit a restated plan, including the amendments, during the next six-
year cycle.

.05 Expeditious Processing Accorded M&P Mass Submitter Plans - Subject to
section 21.03, all M&P mass submitter plans, including the adoption of approved M&P
mass submitter plans by sponsors, will be accorded more expeditious processing than
M&P plans submitted by non-mass submitters, to the extent administratively feasible
.

PART II – VOLUME SUBMITTER PLANS

SECTION 13. DEFINITIONS

.01 Volume Submitter Plan - A “volume submitter plan” or “VS plan” refers to
either a specimen plan of a VS practitioner or a plan of a client of the VS practitioner
that is substantially similar to the VS practitioner’s approved specimen plan.

.02 Specimen Plan - A “specimen plan” is a sample plan of a VS practitioner
(rather than the actual plan of an employer). A specimen plan may be a single
document that does not use an adoption agreement, or it may consist of a basic plan

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document and an adoption agreement, within the meaning of section 4.03 and section
4.04, respectively.

.03 Advisory Letter - An “advisory letter” is a written statement issued by the IRS
to a VS practitioner or VS mass submitter as to the acceptability of the form of a
specimen plan and any related trust or custodial account documents under § 401(a),
403(a), or 4975(e)(7).

.04 Trust or Custodial Account Document - A "trust or custodial account
document" is the portion of a VS plan that contains the trust agreement or custodial
account agreement and includes provisions covering such matters as the powers and
duties of trustees, investment authority, and the kinds of investments that may be
made. Under this revenue procedure, each VS plan may be submitted with up to 10
separate trust or custodial account documents for approval, per specimen document,
without an additional user fee. If more than 10 trust documents are submitted, a user
fee is due for each trust in excess of 10.

.05 VS Practitioner - A VS practitioner is any person that (1) has an established
place of business in the United States where it is accessible during every business day
and (2) represents to the IRS that it has at least 15 employer-clients each of which is
reasonably expected to adopt a plan that is substantially similar to the VS practitioner’s
specimen plan.

A VS practitioner may submit more than one specimen plan for an advisory letter
provided it represents to the IRS that it has at least 30 employer-clients in the
aggregate, each of which is reasonably expected to adopt at least one of the
practitioner’s specimen plans on a substantially similar basis. The IRS reserves the
right at any time to request from the VS practitioner a list of the employers that have
adopted or are expected to adopt the VS practitioner’s specimen plans, including the
employers’ business addresses and employer identification numbers. Notwithstanding
the preceding two sentences, any person that has an established place of business in
the United States where it is accessible during every business day may sponsor a
specimen plan as a word-for-word identical adopter of a specimen plan of a VS mass
submitter, regardless of the number of employers that are expected to adopt the plan.

By submitting an application for an advisory letter for a specimen plan under this
revenue procedure (or by having an application filed on its behalf by a VS mass
submitter), a person represents to the IRS that it is a VS practitioner, as defined in this
section 13.05. If the VS practitioner’s specimen plan permits the VS practitioner to
amend the VS plan on behalf of adopting employers, as permitted by section 15, the
VS practitioner also agrees to comply with any requirements imposed on sponsors of
M&P plans by this procedure. Failure to comply with these requirements may result in
the loss of eligibility to sponsor specimen plans and the revocation of advisory letters
that have been issued to the VS practitioner.

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.06 VS Mass Submitter - A VS mass submitter is any person that (1) has an
established place of business in the United States where it is accessible during every
business day and (2) submits advisory letter applications on behalf of at least 30
unaffiliated VS practitioners each of which is sponsoring on a word-for-word identical
basis the same specimen plan. For purposes of determining whether 30 unaffiliated VS
practitioners sponsor on a word-for word basis the same specimen plan, the VS mass
submitter is treated as one of the 30 unaffiliated VS practitioners. For purposes of this
definition, affiliation is determined under § 414(b) and (c). Additionally, the following will
be considered to be affiliated: any law firm, accounting firm, consulting firm, etc., with its
partners, members, associates, etc. A VS mass submitter will be treated as a VS mass
submitter with respect to all of its specimen plans provided the 30 unaffiliated VS
practitioner requirement is met with respect to at least one of its specimen plans.

.07 ESOP Definitions

(1) ESOP - An “ESOP” is an employee stock ownership plan within the
meaning of § 4975(e)(7).

(2) Exempt Loan - An “exempt loan” is a loan described in § 4975(d)(3) that
meets the requirements for exemption from the excise tax imposed under § 4975(a)
and (b) described in § 54.4975-7(b).

(3) Readily Tradable Employer Securities - “Readily tradable employer
securities” are publicly traded securities as defined in § 1.401(a)(35)-1(f)(5).

.08 Hybrid Plan Definitions

(1) Cash Balance Formula - A “cash balance formula” is a statutory hybrid
benefit formula as defined in § 1.411(a)(13-1(d)(4) used to determine all or any part of a
participant’s accumulated benefit, 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 hypothetical interest credits.

(2) Cash Balance Plan - A “cash balance plan” is a defined benefit plan
that includes a cash balance formula.

(3) Conversion Amendment - A “conversion amendment” is defined in
§ 1.411(b)(5)-1(c)(4), as (i) an amendment 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, 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 determined under a statutory hybrid
benefit formula.

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(4) Hypothetical Interest - “Hypothetical interest” is an interest credit as
defined in § 1.411(b)(5)-1(d)(1)(ii)(A), which refers to 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.

(5) Offset - An “offset” is 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.

(6) Principal Credit - “Principal credit” is defined in § 1.411(b)(5)-
1(d)(1)(ii)(D) as any increase in a participant’s hypothetical account balance that is not
hypothetical interest.

(7) Statutory Hybrid Plan - A “statutory hybrid plan” is a defined benefit
plan that contains a statutory hybrid benefit formula.

(8) Variable Annuity Plan - A “variable annuity plan” is any defined benefit
plan that includes a variable annuity benefit formula as defined in § 1.411(a)(13)-
1(d)(6).

SECTION 14. PROVISIONS REQUIRED IN EVERY VS PLAN

.01 Anti-Cutback Provisions - VS plans must specifically provide for the
protection provided under § 411(a)(10) and (d)(6), to the extent required, in the event
that the employer amends the plan in any manner. If a VS plan authorizes the VS
practitioner to amend the plan on behalf of employers, the VS practitioner may not
amend the plan in a manner that could result in the elimination of a benefit to the extent
the benefit is required to be protected under § 411(d)(6) with respect to the plan of any
adopting employer, unless permitted to do so under §§ 1.401(a)-4 and 1.411(d)-4. In
addition, a VS plan that is not exempt from the top-heavy requirements and that does
not contain vesting rules for all years that are at least as favorable to participants as
those provided in § 416(b), must specifically provide that any vesting that occurs while
the plan is top-heavy will not be cut back if the plan ceases to be top-heavy. See
§ 411(d)(6)(C) and §1.411(d)-4(d) for certain exceptions applicable to ESOPs.

.02 Definition of Employee under § 414(b), (c), (m), (n), and (o) - Each VS plan
must include a definition of employee as any employee of the employer maintaining the
plan or any other employer aggregated under § 414(b), (c), (m), or (o) and the
regulations thereunder. The definition of employee shall also include any individual
treated under § 414(n) or under the regulations under § 414(o) as an employee of any
employer described in the preceding sentence.

With respect to ESOPs, employees who meet this definition cannot participate in
the ESOP unless they are employed by the employer corporation who issues the stock

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held by the ESOP or by any corporation that is a member of the same controlled group
of corporations as the employer corporation (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 1563(e)(3)(C)). With respect to ESOPs, for all other purposes, including
nondiscrimination testing and coverage, employees who meet the definition of
employee in the immediately preceding paragraph are treated as employees.

.03 Definition of Service under § 414(b), (c), (m), (n), and (o) - Each VS plan
must specifically credit all service with any employer aggregated under § 414(b), (c),
(m), or (o) and the regulations thereunder as service with the employer maintaining the
plan. In addition, in the case of an individual treated under § 414(n) (or under
regulations under § 414(o)) as the employee of any employer described in the previous
sentence, service with such employer must be credited to such individual.

.04 Adopting Employer Modification of Trust or Custodial Account Document -
An employer will not be considered to have an individually designed plan merely
because the employer amends administrative provisions of the trust or custodial
account document (such as provisions relating to investments and the duties of
trustees), provided the amended provisions are not in conflict with any other provision
of the plan and do not cause the plan to fail to qualify under § 401(a). For this purpose,
an amendment includes modification of the language of the trust or custodial account
document and the addition of overriding language.

.05 Other Provisions Required in Adoption Agreements - Each VS plan must
contain a dated employer signature line. The employer must sign the adoption
agreement when it first adopts the plan and must complete and sign a new adoption
agreement if the plan has been restated. In addition, the employer must complete a
new signature page if it modifies any prior elections or makes new elections in its
adoption agreement. The signature requirement may be satisfied by an electronic
signature that reliably authenticates and verifies the adoption of the adoption
agreement, or restatement, amendment or modification thereof, by the employer. The
adoption agreement must state that it is to be used with one and only one specimen
plan. In addition, the adoption agreement must contain a cautionary statement to the
effect that the failure to properly fill out the adoption agreement may result in failure of
the plan to qualify under § 401(a) or 403(a). If the VS practitioner has the authority to
amend the plan on behalf of employers who have adopted the plan, as described under
section 15.03 below, the adoption agreement must also contain a statement that
provides that the VS practitioner will inform the adopting employer of any amendments
made to the plan or of the discontinuance or abandonment of the plan.

.06 VS Practitioner Telephone Numbers - VS plan adoption agreements must
include the VS practitioner’s name, address, and telephone number (or a space for the
address and telephone number of the VS practitioner's authorized representative) for
inquiries by adopting employers regarding the adoption of the plan, the meaning of plan
provisions, or the effect of the advisory letter.

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.07 Additional Provisions Required for ESOPs -, ESOPs will not receive
favorable advisory letters under this revenue procedure unless, in addition to complying
with the requirements of subsections 14.01 through 14.06 of this revenue procedure,
they include the following:

(1) 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) A provision that defines employer stock in accordance with § 409(l)(1)
or (2);

(3) Provisions that meet the diversification requirements of § 401(a)(28)(B),
or, if applicable, § 401(a)(35);

(4) 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 C.B. 84;

(5) Provisions that meet the voting requirements of § 409(e);

(6) Provisions that meet the right to demand and put options requirements
of § 409(h), to the extent applicable;

(7) Provisions that meet the distribution requirements of § 409(o);

(8) 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) 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,
the requirements described in § 415(c)(6);

(10) If an ESOP provides for forfeitures, provisions that meet the forfeiture
requirement of § 54.4975-11(d)(4);

(11) If an ESOP holds employer securities consisting of stock in an S
corporation, provisions that meet the requirements of § 409(p) and § 1.409(p)-1;

(12) If an ESOP is maintained by employers that are C corporations,
provisions that meet the requirements of § 409(n); and

(13) Provisions that identify the plan sponsor as being either a C
corporation or an S corporation.

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.08 Additional Provisions Required for Cash Balance Plans - Plans containing
cash balance features will not receive favorable advisory letters unless, in addition to
complying with the requirements of subsections 14.01 through 14.06 of this revenue
procedure, they meet the following requirements:

(1) Prior benefit structures protected - All cash balance plans must ensure
compliance with the anti-cutback provisions of § 411(d)(6). To receive a favorable
advisory letter under this revenue procedure, a cash balance plan must provide that, at
all times, prior accrued benefits (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 must comply with § 1.411(b)(5)-
1(c). However, a favorable advisory 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 contain
any structure of principal credits that increase with age, service, or other measure
during a participant’s employment must be definitely determinable, operationally
nondiscriminatory, and at all times in compliance with the “133 1/3 % rule” of §
411(b)(1)(B) and the regulations thereunder. Employers may not rely on the advisory
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 advisory letter with respect to the requirements of
§ 411(b)(1) for increasing principal credit schedules specified in the specimen plan.

SECTION 15. APPROVED PLANS - MAINTENANCE OF APPROVED STATUS

.01 Cumulative List in Six-Year Cycle - Rev. Proc. 2007-44 provides that VS
practitioners of pre-approved VS plans must submit requests for advisory letters during
the applicable on-cycle submission period for a six-year cycle in order to continue to
rely on their advisory letters. VS practitioners may apply for advisory letters at other
times, but these filings will be “off-cycle” filings, as described in section 21.03 of this
revenue procedure. The IRS will review the plans that have been submitted during the
applicable on-cycle submission period for a six-year cycle taking into account the
applicable Cumulative List that identifies changes in the qualification requirements of
the Code as well as items of published guidance relating to the plan qualification
requirements, such as regulations and revenue rulings. However, in order to be
qualified, a plan must comply in operation with all relevant qualification requirements,
not just those on the applicable Cumulative List.

.02 Subsequent Required Interim Amendments - Except as otherwise provided
in future guidance, in the event of changes in qualification requirements resulting from
future guidance, or other regulatory or statutory changes that were not taken into
account in issuing the advisory letter, an approved VS plan must be amended by the
VS practitioner and, if necessary, the employer, to retain its approved status if any

36

provisions therein fail to meet the requirements of law, regulations, or other issuances
and guidelines affecting qualification. See section 5.01 of Rev. Proc. 2007-44
regarding the time by which such amendments must be adopted. Failure to so amend
could result in the loss of a plan’s qualified status. This does not change the applicable
on-cycle submission period for the six-year cycle when VS practitioners must request
advisory letters, which will still occur only once every six years. VS practitioners are
required to make reasonable and diligent efforts to ensure that each employer that, to
the best of the VS practitioner’s knowledge, continues to maintain the plan as a VS plan
amends its plan when necessary.

The plan must operationally comply with any changes in qualification
requirements and the terms of the plan as ultimately amended to reflect the changes.

.03 Option to Permit VS Practitioner Amendment - A VS practitioner may amend
its specimen plan. Ordinarily the amendments will apply only to the plans of employers
who adopt the plan after it has been amended and will not apply to plans of employers
who adopted the plan prior to the amendment. However, a VS plan may, but is not
required to, include a provision that authorizes the VS practitioner to amend the plan on
behalf of employers who have previously adopted the plan, so that changes in the
Code, regulations, revenue rulings, other statements published by the IRS (including
model and sample amendments that specifically provide that their adoption will not
cause such plan to be individually designed), or corrections of prior approved plans may
be applied to all employers who have adopted the plan. The provision for VS
practitioner amendment must provide that, for purposes of reliance on the advisory
letter, the VS practitioner will no longer have the authority to amend the plan on behalf
of the adopting employer as of the date of the adoption of an employer amendment to
the plan to incorporate a type of plan not allowable in the VS program described in
section 16.03 (e.g., the addition enabling language for multiemployer plan features) or
as of the date the IRS notifies the VS practitioner that the plan is being treated as an
individually designed plan pursuant to section 24.03.

.04 Responsibilities of VS Practitioner - A VS practitioner must comply with the
requirements in this section 15 as well as sections 7.06 and 9 through 11 that apply to
M&P sponsors. Thus, the VS practitioner must maintain, or have maintained on its
behalf, a record of the employers that have adopted the plan, and the VS practitioner
must make reasonable and diligent efforts to ensure that adopting employers have
actually received and are aware of all plan amendments and that such employers adopt
new documents when necessary.

.05 Loss of Qualified Status - If a VS practitioner reasonably concludes that an
employer’s VS plan may no longer be a qualified plan and the VS practitioner does not
or cannot submit a request to correct the qualification failure under EPCRS, it is
incumbent on the VS practitioner to notify the employer that the plan may no longer be
qualified, advise the employer that adverse tax consequences may result from loss of

37

the plan’s qualified status, and inform the employer about the availability of EPCRS.
See Rev. Proc. 2013-12.

SECTION 16. ADVISORY LETTERS - SCOPE

.01 General Limits on Advisory Letters - Advisory letters will be issued only to
VS practitioners or VS mass submitters. Advisory letters constitute determinations as
to the qualification of the plans as adopted by particular employers only under the
cir cumstances, and to the extent, described in section 19. Advisory letters do not
constitute rulings or determinations as to the exempt status of related trusts or custodial
accounts.

.02 Nonapplicability of this Revenue Procedure to section 403(b) Plans –
Advisory letters will not be issued under this revenue procedure for plans intended to
meet the requirements under § 403(b). See Rev. Proc. 2013-22, 2013-18 I.R.B. 985,
as modified by Rev. Proc. 2014-28 and Rev. Proc. 2015-22) for administrative
procedures for the purpose of seeking opinion/advisory letters for § 403(b)
arrangements.

.03 Areas Not Covered by Advisory Letters - Advisory letters will not be issued
for:

(1) Multiemployer plans;

(2) Union plans (this does not preclude a VS plan from covering employees
of the employer who are included in a unit covered by a collective bargaining
agreement or the adoption of a VS plan pursuant to such agreement as a single-
employer plan that covers only employees of the employer);

(3) Stock bonus plans other than ESOPs;

(4) ESOPs that are a combination of a stock bonus plan and a money
purchase plan;

(5) ESOPS that provide for the holding of preferred employer stock, even if
such stock is described in § 409(l)(3);

(6) Pooled fund arrangements contemplated by Rev. Rul. 81-100 (as
modified by Rev. Rul. 2004-67, Rev. Rul. 2011-1, Notice 2012-6, and Rev. Rul. 2014-
24);

(7) Statutory hybrid plans with any of the following features:

(a) Any statutory hybrid benefit formula that is not a cash balance
formula, such as a formula under which benefits are determined by reference to the

38

current value of an accumulated percentage of the participant’s average compensation
(a Pension Equity Plan or “PEP”);

(b) Provisions that allow for hypothetical interest crediting 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).

(c) Provisions that allow a rate used to determine hypothetical interest to
be based on actual return on plan assets or a subset of plan assets (as described in
§1.411(b)(5)-1(d)(5)(ii)) or the rate of return on certain RICs (as described in
§1.411(b)(5)-1(d)(5)(iv)).

(d) 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”);

(e) Provisions that use the 3-percent accrual rule or the fractional
accrual rule under § 1.411(b)(1)(A) or (C) to satisfy the accrued benefit requirements
under § 411(b)(1);

(f) Provisions that provide for funding exclusively through insurance
contracts as described in § 412(e)(3); and

(g) Provisions that provide for offsets of benefits accrued under another
plan (the “offsetting plan”), unless:

(i) 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;

(ii) The cash balance formula is treated as a lump sum-based
benefit formula under § 1.411(a)(13)-1(d)(3) only if 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;

(iii) The offset meets the safe-harbor requirements of §
1.401(a)(4)-8(d) (except that the offset can be computed by subtracting the account
balance under the offsetting plan from the hypothetical account balance under the cash
balance formula), including the requirement that the offsetting plan cannot be a section
401(k) plan or a section 401(m) plan;

(iv) For the purpose of determining the amount of the offset
against any defined benefit plan formula, the offset reflects the value of any

39

distributions from the offsetting plan made prior to the participant’s annuity starting date
under the cash balance plan;

(v) The offset is applied on a uniform basis for all participants;

(vi) 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;

(vii) Accrued benefits, considered in conjunction with defined
contribution accounts subject to any offset, meet nondiscrimination requirements; and

(viii) 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.

(8) Plans described in § 414(k) (relating to a defined benefit plan that
provides a benefit derived from employer contributions that is based partly on the
balance of the separate account of a participant);

(9) Target benefit plans, other than plans which, by their terms, satisfy
each of the safe harbor requirements described in § 1.401(a)(4)-8(b)(3)(i), as well as
the additional rules in § 1.401(a)(4)-8(b)(3)(ii) through (vii);

(10) Church plans described in § 414(e) that have not made the election
provided by § 410(d);

(11) Governmental defined benefit plans that include “deferred retirement
option plan” (DROP) features, 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;

(12) Plans under which the § 415 limitations are incorporated by reference;

(13) Plans that incorporate the ADP test under § 401(k)(3) or the ACP test
under § 401(m)(2) by reference;

(14) Section 401(k) plans that provide for hardship distributions under
circumstances not described in the safe harbor standards in the regulations under §
401(k), unless these distributions are subject to nondiscriminatory and objective criteria
contained in the plan;

40

(15) Fully-insured § 412(e)(3) plans, other than non-statutory hybrid plans
that by their terms satisfy the safe harbor in § 1.401(a)(4)-3(b)(5);

(16) Plans that fail to contain a provision reflecting the requirements of §
414(u) (see Rev. Proc. 96-49);

(17) Plans that include purported fail-safe provisions for § 401(a)(4) or the
average benefit test under § 410(b);

(18) Plans that include blanks or fill-in provisions for the employer to
complete, unless the provisions have parameters that preclude the employer from
completing the provisions in a manner that could violate the qualification requirements;

(19) Plans designed to satisfy the provisions of § 105;

(20) Plans that include § 401(h) accounts;

(21) Eligible combined plans within the meaning of § 414(x)(2); or

(22) Variable annuity plans and plans that provide for accruals that are
determined in whole or in part based on the value of or rate of return on identified
assets, including plan assets.

The IRS may, in its discretion, decline to issue advisory letters for other types of plans
not described in this section 16.03.

SECTION 17. ADVISORY LETTER APPLICATIONS - INSTRUCTIONS TO VS
PRACTITIONERS

.01 The IRS Issues Advisory Letters - The IRS will, upon the request of a VS
practitioner, issue an advisory letter as to the acceptability of the form of the VS
practitioner’s specimen plan under § 401(a), 403(a), or 4975(e)(7).

.02 Procedure for Requesting Advisory Letters - A request for an advisory letter
relating to a specimen plan must be submitted on the current version of Form 4461,
Application for Approval of Master or Prototype or Volume Submitter Defined
Contribution Plans, Form 4461-A, Application for Approval of Master or Prototype or
Volume Submitter Defined Benefit Plan, or Form 4461-B, Application for Approval of
Master or Prototype or Volume Submitter Plans Mass Submitter Adopting Sponsor or
Practitioner, as appropriate. Additionally, the request must be accompanied by the
required user fee submitted with Form 8717-A, User Fee for Employee Plan Opinion
and Advisory Letter Request, a signed certification that all necessary amendments
required by the IRS to retain the qualified status of the VS practitioner’s specimen plan
have been made and communicated to all adopting employers, and Attachment I to
Form 4461 or Attachment I-A to Form 4461-A, as applicable. These forms and

41

attachments may be downloaded from the Internet at the following address:
http://www.irs.gov/Retirement-Plans/Preapproved-Plan-Submission-Procedures. All
information on the first page of the application must be typed. The request must be
sent to the address in section 20.

.03 Separate Specimen Plans and Applications Required for Different
Categories of Plans -

(1) Specimen plans that consist of a basic plan document and adoption
agreement. Except as provided in this section 17.03(1), the rules in section 7.04
(disregarding references therein to standardized and nonstandardized plans) apply to a
specimen plan that consists of a basic plan document and adoption agreement as if the
specimen plan were a M&P plan.

In addition, the same basic plan document may not be used for both
nongovernmental specimen plans (i.e., specimen plans that are not described in
§ 414(d)) and governmental specimen plans. However, separate governmental defined
contribution specimen plans may have the same basic plan document and separate
governmental defined benefit specimen plans may have the same basic plan
document.

A separate application form is required to be submitted for each specimen plan,
that is, for each basic plan document/adoption agreement combination (if the specimen
plan consists of a basic plan document and adoption agreement). In the case of a
simultaneous submission of plans using the same basic plan document, only one copy
of the basic plan document should be provided. If the requests are not simultaneous,
the sponsor must submit a copy of the basic plan document with each submission and
include a cover letter identifying the original submission. The plan number of such
basic plan document must remain the same as in the prior submission.

(2) Specimen plans that consist of a single document without an adoption
agreement. A separate specimen plan and application is required for each of the
following categories of specimen plans that consist of a single document without an
adoption agreement: a profit-sharing plan (with or without a § 401(k) arrangement), a
money purchase pension plan that is not a target benefit plan, a target benefit plan, an
ESOP, and a defined benefit plan. In addition, a separate specimen plan and
application is required for each of the categories of plans in the preceding sentence if
the specimen plan is a governmental plan. Different categories may not be combined
in a single specimen plan or application. Thus, for example, separate specimen plans
and application forms must be submitted for a governmental defined benefit specimen
plan that consists of a single document without an adoption agreement and a
nongovernmental defined benefit specimen plan that consists of a single document
without an adoption agreement.

42

.04 Sample Language - A Listing of Required Modifications (LRM) containing
sample plan language is available from the IRS. Although the sample language is
designed for use in M&P plans, which use an adoption agreement format, VS
practitioners should refer to the sample language as a guide in drafting VS plans. To
expedite the review of their plans, VS practitioners are encouraged to use LRM
language if appropriate and to identify the location of such language in their plan
documents. LRMs may be downloaded from the Internet at
http://www.irs.gov/Retirement-Plans/Listing-of-Required-Modifications-LRMs
.

.05 Timing of Issuance of Advisory Letters - The IRS intends to issue advisory
letters to VS practitioners and VS mass submitters (as well as opinion letters to M&P
mass submitters and sponsors) at approximately the same time within the applicable
six-year cycle. In the interim, the IRS will send a notification to the applicable M&P or
VS mass submitter, sponsor, or VS practitioner if the IRS determines that the plan
appears to be in full compliance with the applicable qualification requirements, based
on the submissions and the completed review. Notwithstanding the preceding
sentence, this notification only provides assurance that the IRS believes the plan
appears to meet the applicable qualification requirements under review as of the date of
the notification. This notification is for the convenience of the applicable sponsor, VS
practitioner, or mass submitter, but does not constitute an official opinion or advisory
letter. Until issuance of the official opinion or advisory letter no reliance exists. The IRS
reserves the right to require changes after the notification is sent, in its sole discretion.

SECTION 18. VS MASS SUBMITTERS

.01 Advisory Letters Issued to VS Mass Submitters - The IRS will, upon request
by a VS mass submitter issue an advisory letter as to the acceptability of the form of the
VS mass submitter’s specimen plan under § 401(a), 403(a), or 4975(e)(7). See section
20 for the address to file the application. The provisions of section 17.05 on the timing
of the issuance of advisory letters and an interim notification by the IRS also apply
under this section.

.02 As noted in section 17.02, a VS mass submitter’s application must be
submitted on the current version of Form 4461 or Form 4461-A and include a
completed Attachment I for a defined contribution plan or Attachment I-A for a defined
benefit plan. Form(s) 4461-B are completed for the requisite number of unaffiliated VS
practitioners (as described in section 13.06) and submitted along with the mass
submitter’s application and must be signed by both the mass submitter and the
unaffiliated VS practitioner. Additionally, the VS request must be accompanied by the
required user fee submitted with Form 8717-A and a signed certification that all
necessary amendments required by the IRS to retain the qualified status of the VS
practitioner’s specimen plan have been made and communicated to all adopting
employers. These forms may be downloaded from the Internet at the following
address: http://www.irs.gov/Retirement-Plans/Preapproved
-Plan-Submission-

43

Procedures. All information on the first page of the application must be typed. The
request must be sent to the address in section 20.

PART III – ALL PRE-APPROVED PLANS

SECTION 19. EMPLOYER RELIANCE

.01 Standardized M&P Plans - An employer adopting a standardized M&P plan
may rely on that plan's opinion letter, except as provided in (1) through (3) and section
19.03 below, if the sponsor of such plan or plans has a currently valid favorable opinion
letter, the employer has followed the terms of the plan(s), and the coverage and
contributions or benefits under the plan(s) are not more favorable for highly
compensated employees (as defined in § 414(q)) than for other employees. Opinion
letters will not be issued for standardized M&P Plans that include either an ESOP or a
Hybrid Plan formula.

(1) An employer may not rely on an opinion letter for a standardized M&P
plan with respect to the requirements of §§ 415 and 416, without obtaining a
determination letter, if the employer maintains at any time, or has maintained at any
time, another plan, including a standardized plan, that was qualified or determined to be
qualified covering some of the same participants. An employer that adopts a
standardized defined contribution plan will not be considered to have maintained
another plan merely because the employer has maintained another defined contribution
plan(s), provided such other plan(s) has been terminated prior to the effective date of
the standardized plan and no annual additions have been credited to the account of any
participant under such other plan(s) as of any date within a limitation year of the
standardized plan. For this purpose, a plan that has been properly replaced by the
adoption of a standardized plan is not considered another plan. To be considered a
replacement 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 plan that has been replaced and the standardized plan must be of the same
type (for example, both defined benefit plans). An employer’s addition of language to a
standardized M&P plan to satisfy the requirements of §§ 415 and 416, given the
required aggregation of plans, would require submission on Form 5300 in order to
preserve reliance on the opinion/advisory letter, pursuant to section 8.02 of Rev. Proc.
2015-6.

(2) An employer that has adopted a standardized defined benefit plan may
rely on an opinion letter with respect to the requirements of § 401(a)(26) only if the plan
satisfies the requirements of § 401(a)(26) with respect to its prior benefit structure or is
deemed to satisfy § 401(a)(26) pursuant to regulations thereunder.

(3) An employer that adopts a standardized plan may not rely on an
opinion letter with respect to: (a) whether the timing of any amendment to the plan (or
series of amendments) satisfies the nondiscrimination requirements of § 1.401(a)(4)-
5(a), except with respect to plan amendments granting past service that meet the safe

44

harbor described in § 1.401(a)(4)-5(a)(3) and are not part of a pattern of amendments
that significantly discriminates in favor of highly compensated employees; or (b)
whether the plan satisfies the effective availability requirement of § 1.401(a)(4)-4(c) with
respect to any benefit, right, or feature. An employer that adopts a standardized plan
as an amendment to a plan other than a standardized plan may not rely on an opinion
letter with respect to whether a benefit, right, or feature that is prospectively eliminated
satisfies the current availability requirements of § 1.401(a)(4)-4.
.02 Nonstandardized M&P Plans and Volume Submitter Plans - An employer
adopting a nonstandardized M&P or VS plan may rely on that plan’s opinion or advisory
letter as described in this section 19 if the employer’s plan is identical to an approved
M&P or specimen plan with a currently valid favorable opinion or advisory letter, the
employer has not amended the plan other than to choose options provided under the
approved plan or to make amendments as described in section 19.03(3), and the
employer has followed the terms of the plan.

(1) Except as provided in section 19.02(2), (3) and (4), adopting employers
of nonstandardized M&P plans and VS plans may not rely on a favorable opinion or
advisory letter with respect to the requirements of:
(a) § 401(a)(4), 401(a)(26), 401(l), 410(b), or 414(s); or
(b) if the employer maintains or has ever maintained another plan
covering some of the same participants, §§ 415 or 416.
For this purpose, whether an employer maintains or has ever maintained another plan
will be determined using principles consistent with section 19.01 above.
(2) Adopting employers of nonstandardized M&P plans and VS plans may
rely on the opinion or advisory letter with respect to the requirements of §§ 410(b) and
401(a)(26) (other than the § 401(a)(26) requirements that apply to a prior benefit
structure) if 100 percent of all nonexcludable employees benefit under the plan.
(3) Nonstandardized M&P plans must give adopting employers the option
to elect a safe harbor allocation or benefit formula and a safe harbor compensation
definition, unless the only formula under the plan is a cash balance formula. Adopting
employers of nonstandardized M&P plans that elect a safe harbor allocation or benefit
formula and a safe harbor compensation definition may rely on an opinion letter with
respect to the nondiscriminatory amounts requirement under § 401(a)(4). Adopting
employers of nonstandardized M&P plans that are § 401(k) and/or § 401(m) plans may
rely on an opinion letter with respect to whether the form of the plan satisfies the actual
deferral percentage test of § 401(k)(3) or the actual contribution percentage test of
§ 401(m)(2) if the employer elects to use a safe harbor definition of compensation in the
test. Adopting employers of nonstandardized M&P plans described in § 401(k)(11)
and/or § 401(m)(12) may rely on an opinion letter with respect to whether the form of
the plan satisfies these requirements unless the plan provides for the safe harbor
contribution to be made under another plan.

45

(4) A VS plan may give an adopting employer the ability to select an
allocation formula for employer nonelective contributions that satisfies one of the
design-based safe harbors in § 1.401(a)(4)-2(b)(2) or a benefit formula that satisfies
one of the design-based safe harbors under § 1.401(a)(4)-3(b)(3), (4), or (5), and the
ability to select a safe harbor compensation definition for such formula that satisfies
§ 1.414(s)-1(c). If the plan of the adopting employer allocates contributions or provides
benefits using one of the designed based safe harbors in § 1.401(a)(4)-2(b)(2) or §
1.401(a)(4)-3(b)(3), (4), or (5), and the plan defines compensation using a definition that
satisfies § 1.414(s)-1(c) then the adopting employer may rely on an advisory letter with
respect to the nondiscriminatory amounts requirement under § 401(a)(4).

(5) Except as provided in sections 5.16(2) and 14.08(2), adopting
employers of M&P plans and VS plans that contain a cash balance formula with a
structure of principal credits that increase with age, service, or other measure during a
participant’s employment may not rely on a favorable opinion or advisory letter with
respect to the requirements of § 411(b)(1).

.03 Other Limitations and Conditions on Reliance - The following conditions and
limitations apply with respect to both M&P and VS plans:

(1) An adopting employer can rely on a favorable opinion or advisory letter
for a plan that amends or restates a plan of the employer only if the plan that is being
amended or restated was qualified.
(2) An adopting employer has no reliance if the employer’s adoption of the
plan precedes the issuance of an opinion or advisory letter for the plan.

(3) An adopting employer will not have reliance on the opinion or advisory
letter if the adoption agreement or other elective provisions in the plan are not
completed correctly when adopted by the employer.

(4) An adopting employer may rely on an opinion or advisory letter only if
the requirements of this section 19 are met, and the employer’s plan is identical to an
approved M&P or specimen plan with a currently valid favorable opinion or advisory
letter; that is, the employer has not added any terms to the approved M&P or VS plan
and has not modified or deleted any terms of the plan other than choosing options
permitted under the plan or, in the case of a M&P plan, amended the document as
permitted under section 5.06 or 5.09 or, in the case of a VS plan, modified the
document as permitted under sections 14 and 15. Thus, for example, in the case of a
VS plan, the employer’s plan must be identical to the approved specimen plan except
as the result of the employer’s selection among options that are permitted under the
terms of the approved specimen plan and modifications permitted under sections 14
and 15.

For purposes of this section 19.03(3), a plan will not fail to be identical to an
approved M&P or specimen plan if:

46

(a) The employer modifies or amends the plan to add or change a
provision and/or to specify or change the effective date of a provision, provided the
employer is permitted to make the modification or amendment under the terms of the
approved M&P or specimen plan as well as under § 401(a) or 403(a), and, except for
the effective date, the provision is identical to a provision in the approved plan;

(b) The employer, sponsor or VS practitioner adopts an interim or
discretionary amendment in accordance with section 21 or Rev. Proc. 2007-44; or

(c) The employer adopts a model or sample amendment that the IRS
has indicated will not cause the plan to be treated as an individually designed plan.

For example, an employer is not required to restate its M&P or VS plan in order to
change options under the plan or to specify different effective dates. Also see section
5.02, which limits an employer’s ability to amend a M&P plan without causing the plan
to be treated as an individually designed plan, and section 5.11, which requires the
employer to complete a new signature page when the employer changes options in a
M&P adoption agreement. An adopting employer cannot rely on an opinion or advisory
letter if the adopting employer has modified the terms of the plan’s approved trust in a
manner that would cause the plan to fail to be qualified under § 401(a).

(5) An adopting employer of any pension plan in which the normal
retirement age selected by the employer is less than age 62 will not have reliance on
the opinion/advisory 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).

.04 Reliance Equivalent to Determination Letter - If an employer can rely on a
favorable opinion or advisory letter pursuant to this section, the opinion or advisory
letter shall be equivalent to a favorable determination letter. For example, the favorable
opinion or advisory letter shall be treated as a favorable determination letter for
purposes of section 21 of Rev. Proc. 2015-6, regarding the effect of a determination
letter, and section 4.03 of Rev. Proc. 2013-12, regarding the definition of “favorable
letter” for purposes of EPCRS. Of course, the extent of the employer’s reliance may be
limited, as provided in this section.

SECTION 20. WHERE TO FILE AND OTHER RULES FOR APPLICATIONS AND
LETTERS

.01 Opinion/advisory Letters - Applications for opinion and advisory letters,
including applications filed by M&P and VS mass submitters, should be sent to:

Internal Revenue Service
Attn: Pre-Approved Plans Coordinator
Room 5106, Group 7521
P.O. Box 2508

47

Cincinnati, OH 45201-2508

.02 For purposes of .01 and .02 above, a request shipped by Express Mail or a
delivery service should be sent to the attention of the Pre-Approved Plans Coordinator,
to:
Internal Revenue Service
550 Main Street
Room 5106, Group 7521
Cincinnati, OH 45202

.03 Effect of Failure to Disclose Material Fact or to Accurately Provide
Information - The IRS may determine, based on the application, the extent of review of
the pre-approved plan. A failure to disclose a material fact or misrepresentation of a
material fact in the application may adversely affect the reliance that would otherwise
be obtained through issuance by the IRS of a favorable opinion or advisory letter.
Similarly, failure to accurately provide any of the information called for on any form
required by this revenue procedure may result in no reliance on the favorable opinion
letter or advisory letter.

.04 Additional Information May Be Requested - The IRS may, at its discretion,
require any additional information that it deems necessary, including a demonstration of
how the variables (options or alternatives) in the M&P or specimen plan interrelate to
satisfy the qualification requirements of the Code. If a letter requesting changes to plan
documents is sent to the sponsor or VS practitioner or an authorized representative, the
changes must be received no later than 30 days from the date of the letter, and the
response must include either a copy of the plan with the changes highlighted or, if the
changes are not extensive, replacement pages. If the changes are not received within
30 days, the application may be considered withdrawn. An extension of the 30-day
time limit will only be granted for good cause.

.05 Inadequate Submissions - The IRS will return, without further action, plans
that are not in substantial compliance with the qualification requirements of § 401(a),
403(a), or 4975(e)(7), or plans that are so deficient that they cannot be reviewed in a
reasonable amount of time. A plan may be considered not to be in substantial
compliance if, for example, it omits or merely incorporates qualification requirements by
reference to the applicable Code section. The IRS will not consider these plans until
after they are revised, and they will be treated as new requests as of the date they are
resubmitted. No additional user fee will be charged if an inadequate submission is
amended to be in substantial compliance and is resubmitted to the IRS within 30 days
following the date the sponsor or VS practitioner is notified of such inadequacy.

.06 Nonidentification of Questionable Issues May Cause Delay - If the plan
document submitted as part of an opinion or advisory letter request contains a provision
that gives rise to an issue for which contrary published authorities exist, failure to
disclose and address significant contrary authorities, as required in section 6.11 of Rev.

48

Proc. 2015-6, may result in requests for additional information, which will delay action
on the request.

.07 DOL Participant Loan Regulations not Addressed by Opinion or Advisory
Letter - Pre-approved plans may adopt procedures to comply with the Department of
Labor's (DOL) participant loan regulations under section 408(b)(1) of ERISA in the plan
or in a separate document. The adoption of procedures outside of the plan document
that are intended to comply with these regulations will not cause a pre-approved plan to
be considered an individually designed plan. The IRS will not review loan program
procedures (whether in the plan or in a separate written document) to determine
whether they comply with the requirements of the DOL regulations. Also, any opinion
or advisory letter issued for a pre-approved plan will not consider whether loan program
procedures may, in the operation of the plan, have an adverse effect on the qualified
status of the plan. However, the loan program procedures under the plan may not be
inconsistent with the qualification requirements of § 401(a) of the Code.

.08 Nontransferability of Opinion and Advisory Letters - An opinion or advisory
letter issued to a sponsor or VS practitioner is not transferable to any other entity. In
the case of a change in entity, a letter issued to a sponsor or VS practitioner may not be
relied upon by a different entity. If a different entity assumes sponsorship of the plan, it
must submit an application for a new letter. Such an application may be filed at the
time of the assumption of sponsorship and the filing is not limited to the applicable on-
cycle submission period. The application will be subject to a reduced user fee as
provided in section 6.03(8) or 6.04(4) of Rev. Proc. 2015-8. The new letter will
recognize the change in sponsorship and will not modify the scope of or change the
reliance on the original letter. The IRS may in appropriate circumstances request
documentation of the assumption of sponsorship prior to issuing a letter to the new
entity. Examples of a change in entity include, but are not limited to, a change in the
employer identification number, the acquisition of a sponsor by another entity or the
sale or transfer of the stock or assets of the sponsor to another entity.

SECTION 21. AMENDMENTS

.01 Opinion or Advisory Letters for Sponsor or VS Practitioner Amendments - A
plan must be operated in accordance with the written plan document. When there are
changes with respect to plan qualification requirements that will impact the provisions of
the written plan document, the adoption of interim amendments will generally be
required in accordance with the rules set forth in Rev. Proc. 2007-44. Interim
amendments adopted by a pre-approved sponsor or VS practitioner on behalf of
adopting employers must be provided to the adopting employers. The date on which
each amendment is adopted by the sponsor or VS practitioner must be provided with
the amendment. The requirement to provide the date for each amendment is effective
for amendments adopted by the sponsor or VS practitioner on or after October 31,
2011. However, this does not change the applicable on-cycle submission period for the
six-year cycle when sponsors or VS practitioners must request opinion or advisory

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letters, which will still only occur once every six years. The IRS will entertain a request
for an opinion or advisory letter as to the acceptability, for purposes of § 401(a), 403(a),
or 4975(e)(7), of the form of the plan as restated, during the applicable on-cycle
submission period for the six-year cycle, as provided in section 8.01 and section 15.01.
The sponsor or VS practitioner must, except as provided in section 12 or section 18,
submit an application under the procedures in section 7 or section 17, together with a
copy of the plan’s certification regarding interim amendments, a cover letter
summarizing the changes to the plan that are affected by such amendment(s), and a
copy of the plan that is being restated. The IRS retains the right to request and secure
from the sponsor/VS practitioner in appropriate circumstances copies of all interim
amendments reflected on the applicable Cumulative List that the sponsor / VS
practitioner has adopted on behalf of its adopting employers.

.02 Loss of Qualified Status for Certain Amendments - A pre-approved plan will
not lose its qualified status merely because amendments are made that cover any of
the following:

(1) Amendments to conform a plan to the requirements of section 402(a) of
Title I of the Employee Retirement Income Security Act of 1974 (ERISA), Pub. L. 93-
406, 1974-3 C.B. 1, relating to named fiduciaries.

(2) Amendments to conform a plan to the requirements of section 503 of
ERISA, relating to claims procedures.

(3) Amendments to conform the plan to the requirements of DOL Field
Assistance Bulletin No. 2008-1, which provides guidance on the need for plans to
specify the duties of trustees with respect to the responsibility for collection of
delinquent contributions.

(4) Amendments that adjust the limitations under §§ 415, 402(g),
401(a)(17), and 414(q)(1)(B) to reflect annual cost-of-living increases, other than
amendments that add automatic cost-of-living adjustment provisions to the plan.

(5) Amendments that reflect a change of a sponsor's or VS practitioner’s
name. The sponsor or VS practitioner must notify the IRS, in writing, of the change in
name and certify that it still meets the conditions for sponsorship described in section
4.07 or 13.05. (Also see section 20 regarding changes in employer identification
numbers.)

.03 Off-Cycle Filing - An application for an opinion or advisory letter for a plan
that is word-for-word identical to an approved mass submitter that has a current
advisory or opinion letter will not be treated as off-cycle merely because it is submitted
after the end of the applicable on-cycle submission period for the six-year cycle.

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Any other application for an opinion or advisory letter that is submitted after the
applicable on-cycle submission period for the six-year cycle will be treated as an off-
cycle filing. If such an off-cycle application is submitted before the beginning of the two
year period for employer adoption announced by the IRS for an applicable six-year
cycle, the application will not be reviewed until all on-cycle plans (including applications
for determination letters for individually designed plans within their staggered five-year
cycle) have been reviewed and processed. However, the IRS may, in its discretion,
determine whether the processing of off-cycle filings may be prioritized and accelerated
under certain circumstances. Off-cycle applications that are submitted during or after
the two-year period will not be accepted.

SECTION 22. REVOCATION

Revocation of Opinion or Advisory Letter by the IRS - An opinion or advisory
letter found to be in error or not in accord with the current views of the IRS may be
revoked. Also, see sections 4.07 and 13.05. Except in rare or unusual circumstances,
such revocation will not be applied retroactively. See sections 13 and 14 of Rev. Proc.
2015-4. For this purpose, opinion and advisory letters will be given the same effect as
rulings. Revocation may be effected by a notice to the sponsor or VS practitioner to
which the letter was originally issued, or by publication in the Internal Revenue Bulletin.
The sponsor or VS practitioner should then notify each adopting employer of the
revocation as soon as possible. The content of the notification to each adopting
employer must explain how the revocation affects any reliance an adopting employer
has on the applicable advisory or opinion letter and on any determination letter issued.

SECTION 23. SECOND ON-CYCLE SUBMISSION PERIOD (POST–EGTRRA) FOR
PRE-APPROVED DB PLANS

The second on-cycle submission period (post-EGTRRA) began on February 1,
2013, and was scheduled to end on January 31, 2014, for applications for opinion and
advisory letters for defined benefit plans that take into account the changes identified
on the 2012 Cumulative List. Anns. 2014-4 and 2014-41 extended the deadline to
submit on-cycle applications for opinion and advisory letters for such defined benefit
plans to June 30, 2015. Pursuant to this revenue procedure, the deadline to submit on-
cycle applications for opinion and advisory letters for such defined benefit plans is
extended to October 30, 2015. Plans submitted in accordance with this extension will
continue to be reviewed based on the 2012 Cumulative List. However, a plan must
comply in operation with all relevant qualification requirements, not just those on the
2012 Cumulative List. In addition, if a plan has not been previously reviewed for items
on earlier cumulative lists, the plan must still take those items into account. For
example, pre-approved defined benefit plans have not yet been reviewed for items on
the 2007 Cumulative List, so those items have been retained on the 2012 Cumulative
List. The IRS will announce the deadline for timely adoption by employers when the
review of the pre-approved documents is close to being completed.

SECTION 24. REMEDIAL AMENDMENT PERIOD

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.01 Rev. Proc. 2007-44 contains the IRS’s procedures for issuing letters for pre-
approved plans under a regular, six-year remedial amendment cycle and individually
designed plans under a staggered five-year remedial amendment cycle. It explains the
conditions under which an adopting employer that timely adopts a pre-approved plan
will be treated as having adopted the plan within the employer’s six-year remedial
amendment cycle, and which Cumulative List will apply in the case of plans that
become individually designed under the circumstances described in section 24.02.

.02 An employer that has adopted a M&P plan or a VS specimen plan may have
modified the plan in such a way that the plan, as adopted by the employer, would not
be considered a M&P plan or a VS plan. The effect of employer amendments or the
adoption of an individually designed plan on employers eligible for the six-year remedial
amendment cycle is described in section 19 of Rev. Proc. 2007-44.

.03 In addition to the provisions described in section 19 of Rev. Proc. 2007-44,
the IRS may in its discretion determine that a plan is an individually designed plan that
will not receive an extended remedial amendment cycle, due to the nature and extent of
the amendments.

SECTION 25. EFFECT ON OTHER DOCUMENTS

Rev. Proc. 2011-49 is modified and superseded.

SECTION 26. EFFECTIVE DATE

This revenue procedure is effective June 8, 2015.

SECTION 27. PAPERWORK REDUCTION ACT

The collection of information contained in this revenue procedure has been
reviewed and approved by the Office of Management and Budget in accordance with
the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545-1674.

An agency may not conduct or sponsor, and a person is not required to respond
to, a collection of information unless the collection of information displays a valid OMB
control number.

The collection of information in this revenue procedure is in sections 5.11, 8.02,
11.02, 12, 14.05, 15.02, 18, and 24. This information is required to enable the
Commissioner, Tax Exempt and Government Entities Division of the Internal Revenue
IRS to make determinations in connection with plan qualification. This information will
be used to determine whether a plan is entitled to favorable tax treatment. The likely
respondents are banks, insurance companies, other financial institutions, law, actuarial,
and consulting firms, employee benefit practitioners and employers.

52

The estimated total annual reporting and/or recordkeeping burden is 988,290
hours.

The estimated annual burden per respondent/recordkeeper varies from 1/2 to
2,000 hours, depending on individual circumstances, with an estimated average of 3.18
hours. The estimated number of respondents and/or recordkeepers is 310,315.

The estimated frequency of responses is occasional.

Books or records relating to a collection of information must be retained as long
as their contents may become material in the administration of any internal revenue
law. Generally, tax returns and tax return information are confidential, as required by 26
U.S.C. § 6103.

DRAFTING INFORMATION

The principal author of this revenue procedure is Kathleen Herrmann of the
Office of Associate Chief Counsel (Tax Exempt and Government Entities). For further
information regarding this revenue procedure, contact Kathleen Herrmann at (202) 317-
6799 (not a toll-free number).
.