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Retirement Plans FAQs regarding the EGTRRA Determination Letter Program for Pre-Approved Defined Benefit Plans

These frequently asked questions and answers provide general information and should not be cited as any type of legal authority. They provide the user with information responsive to general inquiries. Because these answers do not apply to every situation, yours may require additional research.

 

  1. I restated my pre-approved plan document for EGTRRA but filed a request for a new opinion or advisory letter after the end of the submission period, that is, after January 31, 2008. When can I expect to receive my new opinion or advisory letter and when will employers have to adopt their pre-approved defined benefit plan to be within the six-year cycle?

  2. I created a new pre-approved plan document after the end of the submission period and filed an application for an opinion or advisory letter at that time. When can I expect to receive my opinion or advisory letter, and will employers that adopt my plan be within the six-year cycle?

  3. I am an adopter of a volume submitter plan and I wish to make certain changes to the pre-approved document. When I file a determination letter application, must I incorporate these changes in the pre-approved plan document or may I make the changes as separate amendments to the plan?

  4. I am an adopter of an Master & Prototype defined benefit plan and I wish to make certain changes to the pre-approved documents, other than choosing among options in the adoption agreement and amending the plan in the manner described in sections 5.02 and 19.03 of Rev. Proc. 2011-49. When I file a determination letter application, may I incorporate these changes, as well as interim amendments for changes in qualification requirements on post-2006 Cumulative Lists, in the pre-approved plan document or should I these adopt these changes and interim amendments separately?

  5. I am filing Form 5310 to terminate my pre-approved Master & Prototype or volume submitter plan. Must I include copies of interim amendments with my application?

  6. I’m an employer and I have adopted discretionary plan amendments to my pre-approved plan since my last determination letter. Should I include copies of these amendments when I apply for a new determination letter on my pre-approved plan?

  7. I will be submitting an application for a determination letter on my pre-approved defined benefit plan. I understand that the IRS’s review of my application will be based on the 2006 Cumulative List in Notice 2007-3 and will not take into account subsequent changes in the qualification requirements. If I have not timely adopted interim amendments for changes in the qualification requirements subsequent to the 2006 Cumulative List, can this affect my reliance on a favorable determination letter?

  8. If I file a determination letter application for my pre-approved defined benefit plan by April 30, 2012, and the IRS determines that additional remedial amendments are needed, will I have time to adopt the amendments?

  9. I have an individually designed defined benefit plan which I have timely amended in good faith for EGTRRA and subsequent guidance. Before the 5-year cycle for my plan ended, I signed Form 8905, Certification of Intent to Adopt Pre-approved Plan, because I intended to replace my individually designed plan with an EGTRRA M&P plan. I have now decided to retain my individually designed plan rather than adopt the M&P plan. If I need to adopt any amendments to my plan for EGTRRA and subsequent guidance, when will the remedial amendment period end?

  10. I am an adopting employer of a pre-approved defined benefit plan. How do I obtain a determination from the IRS as to whether I am a member of an affiliated service group?

 


1. I restated my pre-approved plan document for EGTRRA but filed a request for a new opinion or advisory letter after the end of the submission period, that is, after January 31, 2008. When can I expect to receive my new opinion or advisory letter and when will employers have to adopt their pre-approved defined benefit plan to be within the six-year cycle?

Opinion and advisory letters for “late-filed” restated pre-approved plans will be issued after letters have been issued for timely submitted plans. Regardless of when the letters are issued, employers must adopt their pre-approved defined benefit plans by no later than April 30, 2012, to be within the six-year cycle.

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2. I created a new pre-approved plan document after the end of the submission period and filed an application for an opinion or advisory letter at that time.  When can I expect to receive my opinion or advisory letter, and will employers that adopt my plan be within the six-year cycle?

Opinion and advisory letters for new plans created and submitted after the end of the submission period will be issued after letters have been issued for timely submitted plans. Employers that timely adopt these plans will have retroactive reliance. See Revenue Procedure 2008-56 and Revenue Procedure 2011-49.

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3. I am an adopter of a volume submitter plan and I wish to make certain changes to the pre-approved document.  When I file a determination letter application, must I incorporate these changes in the pre-approved plan document or may I make the changes as separate amendments to the plan?

Regardless of whether the application is filed on Form 5307 or is required to be filed on Form 5300 (because, for example, the changes are very extensive), the changes to the pre-approved volume submitter plan may be either incorporated into the pre-approved document or made as separate “tack-on” amendments to the plan. If the changes are incorporated into the document, the application must also include a list describing the changes.

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4. I am an adopter of an Master & Prototype defined benefit plan and I wish to make certain changes to the pre-approved documents, other than choosing among options in the adoption agreement and amending the plan in the manner described in sections 5.02 and 19.03 of Revenue Procedure 2011-49. When I file a determination letter application, may I incorporate these changes, as well as interim amendments for changes in qualification requirements on post-2006 Cumulative Lists, in the pre-approved plan document or should I these adopt these changes and interim amendments separately?

The changes and interim amendments must be in the form of a separate amendment to the plan and not incorporated into the underlying M&P plan documents. See section 19.05 of Revenue Procedure 2011-49.

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5. I am filing Form 5310 to terminate my pre-approved Master & Prototype or volume submitter plan.  Must I include copies of interim amendments with my application?

Yes. The application must include copies of all interim amendments adopted since the plan’s last determination letter, including interim amendments required to bring the plan into compliance with changes in the qualification requirements that are effective as of the proposed date of termination.

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6. I’m an employer and I have adopted discretionary plan amendments to my pre-approved plan since my last determination letter. Should I include copies of these amendments when I apply for a new determination letter on my pre-approved plan?

Yes. Although you may not be required to submit EGTRRA good faith and interim amendments with your application, you should include copies of discretionary amendments you adopted, in addition to the restated plan or completed adoption agreement.

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7. I will be submitting an application for a determination letter on my pre-approved defined benefit plan. I understand that the IRS’s review of my application will be based on the 2006 Cumulative List in Notice 2007-3 and will not take into account subsequent changes in the qualification requirements. If I have not timely adopted interim amendments for changes in the qualification requirements subsequent to the 2006 Cumulative List, can this affect my reliance on a favorable determination letter?

Because your determination letter will not take into account changes in the plan qualification requirements subsequent to the 2006 Cumulative List, the failure to timely adopt interim amendments for subsequent changes may jeopardize your plan’s qualified status beginning with the earliest effective date of those changes, which may be before the date of your favorable letter.

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8. If I file a determination letter application for my pre-approved defined benefit plan by April 30, 2012, and the IRS determines that additional remedial amendments are needed, will I have time to adopt the amendments?

Yes. The remedial amendment period will not end before the expiration of 91 days following issuance of the determination letter.

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9. I have an individually designed defined benefit plan which I have timely amended in good faith for EGTRRA and subsequent guidance. Before the 5-year cycle for my plan ended, I signed Form 8905, Certification of Intent to Adopt Pre-approved Plan, because I intended to replace my individually designed plan with an EGTRRA M&P plan. I have now decided to retain my individually designed plan rather than adopt the M&P plan. If I need to adopt any amendments to my plan for EGTRRA and subsequent guidance, when will the remedial amendment period end?

April 30, 2012. However, if you file an application for a determination letter by that date, the remedial amendment period will not end before the expiration of 91 days following the issuance of the determination letter. This answer would be the same if you had signed a Form 8905 intending to adopt a volume submitter plan rather than an M&P plan and subsequently decided to retain your plan as an individually designed plan.

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10. I am an adopting employer of a pre-approved defined benefit plan.  How do I obtain a determination from the IRS as to whether I am a member of an affiliated service group?
 
You may request a determination of affiliated service group status by filing Form 5300, Application for Determination for Employee Benefit Plan, and checking the appropriate box under line 3a.  Include a cover letter stating that you are requesting an EGTRRA determination letter for a pre-approved defined benefit plan and a determination of affiliated service group status. Also include the EGTRRA approved plan document and the user fee for an application filed on Form 5300. Assuming the affiliated service group status request is the only reason for filing using the Form 5300, the determination letter that is issued will consider EGTRRA and the 2006 Cumulative List, and will include a determination regarding affiliated service group status. You would follow these procedures if you make any special ruling request in conjunction with your request for a determination letter as a pre-approved defined benefit plan adopter, such as for a partial termination or leased employee determination.

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Page Last Reviewed or Updated: 21-Nov-2013