.01 This revenue procedure sets forth the procedures of the various offices of the Internal Revenue Service for issuing determination letters on the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans (ESOPs) under §§ 401, 403(a), 409 and 4975(e)(7) of the Internal Revenue Code of 1986, and the status for exemption of any related trusts or custodial accounts under § 501(a). Also see Rev. Proc. 2007-44, 2007-28 I.R.B. 54, which contains a description of the determination letter program, including when to submit a request for a determination letter within the 5-year and 6-year staggered remedial amendment cycles, that apply to individually designed and pre-approved plans.

.02 Part I of this revenue procedure contains instructions for requesting determination letters for various types of plans and transactions. Part II contains procedures for providing notice to interested parties and for interested parties to comment on determination letter requests. Part III contains procedures concerning the processing of determination letter requests and describes the effect of a determination letter.

.01 This revenue procedure is a general update of Rev. Proc. 2007-6, 2007-1 I.R.B 189, which contains the Service’s general procedures for employee plans determination letter requests.

.02 In addition to minor revisions, such as updating references, the following changes have been made:

(1) Section 2.03 is revised to reference the 2007 Cumulative List, Notice 2007-94, 2007-51 I.R.B. 1179 and Announcement 2007-90, 2007-42 I.R.B. 856.

(2) Section 3.03 is revised to reference the first submission period for Cycle C individually designed plans and § 414(d) governmental plans (including governmental multiemployer plans and governmental multiple employer plans).

(3) Section 6.05 is revised to require that all changes made to the prior plan document be identified and that all interim amendments be submitted with a determination letter application.

(4) Section 6.19 is clarified with respect to the submission of 30 or more on-cycle individually designed plans at one time.

(5) Section 7.01 is revised to reference section 14.02 of Rev. Proc. 2007-44, with respect to off-cycle submissions.

(6) Section 7.02 is revised to reference the first submission period for Cycle C individually designed plans and § 414(d) governmental plans (including governmental multiemployer plans and governmental multiple employer plans).

(7) Section 7.03 is revised to clarify the scope of a determination letter with regard to plan amendments that are effective before the beginning of the plan’s remedial amendment cycle.

(8) Section 7.04 is revised to clarify that all determination letter submissions (other than submissions for terminating plans) must include a restated plan or a working copy of the plan in a restated format.

(9) Section 11 is revised to indicate the Form 6406, Short Form Application for Determination for Minor Amendment of Employee Benefit Plan, has been eliminated. All references to Form 6406 have been deleted throughout this revenue procedure.

(10) Section 12.07 is revised to clarify that terminating plans, whether submitted during an on-cycle submission period or an off-cycle submission period, do not have to be restated.

.03 Other guidance affecting this revenue procedure:

Rev. Proc. 2005-16, 2005-1 C.B. 674, describes the procedures for the “pre-approval” of plans under the master and prototype (M&P) program and the volume submitter (VS) program. Rev. Proc. 2007-44 describes a new system of remedial amendment cycles that applies to pre-approved plans and individually designed plans, and the deadlines to submit applications for opinion, advisory and determination letters. The Service issues a Cumulative List every year identifying changes affecting plan qualification requirements to be used by plans whose remedial amendment cycle begins in the month of February following the publication of the Cumulative List. The 2004 Cumulative List is contained in Notice 2004-84, 2004-2 C.B. 1030, the 2005 Cumulative List is contained in Notice 2005-101, 2005-2 C.B. 1219, the 2006 Cumulative List is contained in Notice 2007-3, 2007-2 I.R.B. 255, and the 2007 Cumulative List is contained in Notice 2007-94. Announcement 2007-90 temporarily closes the determination letter program for pre-approved defined contribution plans.

.01 Determination letters may be requested on completed and proposed transactions as set forth in the table below:

.02 Determination letters issued in accordance with this revenue procedure do not include determinations on the following issues within the jurisdiction of the Commissioner, TE/GE:

(1) Issues involving §§ 72, 79, 105, 125, 127, 129, 402, 403 (other than 403(a)), 404, 409(l), 409(m), 412, 457, 511 through 515, and 4975 (other than 4975(e)(7)), unless these determination letters are authorized under section 7 of Rev. Proc. 2008-4, page , this Bulletin.

(2) Plans or plan amendments for which automatic approval is granted pursuant to section 19.01 of Rev. Proc. 2005-16.

(3) Plan amendments described below (these amendments will, to the extent provided, be deemed not to alter the qualified status of a plan under § 401(a)).

(4) This section applies to determination letter requests with respect to plans that combine an ESOP (as defined in § 4975(e)(7) of the Code) with retiree medical benefit features described in § 401(h) (HSOPs).

.03 On February 1, 2008, the Service will begin to accept applications for determination letters for some individually designed plans (depending on their cycle)and § 414(d) governmental plans (including governmental multiemployer plans or governmental multiple employer plans) that take into account the qualification requirements of the Code as amended by EGTRRA, and other items identified on the 2007 Cumulative List in Notice 2007-94. This opening of the determination letter program for the initial remedial amendment cycle (i.e., EGTRRA remedial amendment period) is for individually designed plans and § 414(d) governmental plans (including governmental multiemployer plans and governmental multiple employer plans) that fall within Cycle C, and the submission period for Cycle C plans ends on January 31, 2009. The cycles commence in different years for different plans within a staggered five-year period, so not all individually designed plans will have the same cycle or submission period. Further, the submission periods for pre-approved defined contribution and defined benefit plans are different than those that apply to individually designed plans. See Rev. Proc. 2005-16 and Rev. Proc. 2007-44 for details.

.01 Other procedures for obtaining rulings, determination letters, opinion letters, etc., on matters within the jurisdiction of the Commissioner, TE/GE are contained in the following revenue procedures:

(1) Employee Plans Technical (EP Technical) letter rulings, information letters, etc.: See Rev. Proc. 2008-4, page , this Bulletin.

(2) M&P and VS plans: See Notice 2001-42, 2001-2 C.B. 70, Notice 2001-57, 2001-2 C.B. 279, Rev. Proc. 2001-55, 2001-2 C.B. 552, Rev. Proc. 2002-29, 2002-1 C.B. 1176 (as modified by Rev. Proc. 2003-10, 2003-1 C.B. 259), Rev. Proc. 2002-73, 2002-2 C.B. 932, Rev. Proc. 2003-72, 2003-2 C.B. 578, Rev. Proc. 2004-25, 2004-1 C.B. 791, Notice 2004-84, 2004-2 C.B. 1030, Rev. Proc. 2005-16, and Rev. Proc. 2007-44.

(3) Technical advice requests: See Rev. Proc. 2008-5, page , this Bulletin.

.02 For the procedures for obtaining letter rulings, determination letters, etc., on matters within the jurisdiction of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), or within the jurisdiction of other offices of Chief Counsel, see Rev. Proc. 2008-1, page , this Bulletin.

.01 This section delineates, generally, the scope of an employee plan determination letter. It identifies certain qualification requirements, relating to nondiscrimination, that are considered by the Service in its review of a plan only at the election of the applicant. This section also identifies certain qualification requirements that are not considered by the Service in its review of a plan and with respect to which determination letters do not provide reliance. This section applies to all determination letters other than letters relating to the qualified status of group trusts; and certain letters relating solely to the requirements of § 420, regarding the transfer of assets in a defined benefit plan to a health benefit account described in § 401(h). For additional information pertaining to the scope of reliance on a determination letter, see sections 8, 9 and 21 of this revenue procedure, and section 19 of Rev. Proc. 2005-16.

.02 In general, employee plans are reviewed by the Service for compliance with the form requirements (that is, those plan provisions that are required as a condition of qualification under § 401(a)). In addition, as described below, certain nondiscrimination requirements are considered if the applicant specifically requests that they be considered. For terminating plans, the requirements are those that apply as of the date of termination. See Rev. Proc. 2007-44 for further details on the scope of the Service’s review of determination letter applications.

.03 Unless the applicant elects otherwise, a plan will not be reviewed for, and a determination letter may not be relied on with respect to, whether a plan satisfies one of the safe harbors or the general test for nondiscrimination in amount of contributions or benefits requirements under § 1.401(a)(4)-1(b)(2) of the Income Tax Regulations.

.04 Unless the applicant elects otherwise, a plan will not be reviewed for, and a determination letter may not be relied on with respect to, the minimum coverage requirements of § 410(b). If the applicant demonstrates that the plan satisfies the coverage requirements of § 410(b), the determination letter may also be relied on with respect to the participation requirements of § 401(a)(26).

.05 If the applicant demonstrates that the plan satisfies the coverage requirements of § 410(b), the determination letter may also be relied on as to whether the plan satisfies the nondiscriminatory current availability requirements of § 1.401(a)(4)-4(b) with respect to those benefits, rights, and features that are currently available (within the meaning of § 1.401(a)(4)-4(b)(2)) to all employees in the plan’s coverage group. The plan’s coverage group consists of those employees who are treated as currently benefiting under the plan (within the meaning of § 1.410(b)-3(a)) for purposes of demonstrating that the plan satisfies the minimum coverage requirements of § 410(b). Applications will not be reviewed as to, and determination letters may not be relied on with respect to, whether the plan satisfies the requirements of § 1.401(a)(4)-4(b) with respect to any benefit, right, or feature other than the ones described above, except those that are specified by the applicant and for which the applicant has provided information relevant to the determination.

.06 An applicant may also ask that the review of its plan consider certain other nondiscrimination requirements which are described in Schedule Q (Form 5300), such as whether a definition of compensation satisfies § 414(s).

.07 A favorable determination letter may be relied on with respect to whether a plan satisfies a coverage or nondiscrimination requirement only if the application, demonstrations and other information submitted to the Service in support of a favorable determination is retained by the applicant.

.08 In no event will any plan be reviewed to determine, and a determination letter may not be relied on with respect to, whether any benefit, right, or feature under the plan satisfies the effective availability requirement of § 1.401(a)(4)-4(c).

.09 Determination letters may generally be relied on with respect to whether the timing of a plan amendment (or series of amendments) satisfies the nondiscrimination requirements of § 1.401(a)(4)-5(a) of the regulations, unless the plan amendment is part of a pattern of amendments that significantly discriminates in favor of highly compensated employees. A favorable determination letter does not provide reliance for purposes of § 404 and § 412 with respect to whether an interest rate (or any other actuarial assumption) is reasonable. Furthermore, a favorable determination letter will not constitute a determination with respect to the use of the substantiation guidelines contained in Rev. Proc. 93-42, 1993-2 C.B. 540, e.g., a determination letter will not consider whether data submitted with an application is substantiation quality. Lastly, a favorable determination letter will not constitute a determination with respect to whether any requirements of § 414(r), relating to whether an employer is operating qualified separate lines of business, are satisfied. However, if an employer is relying on § 414(r) to satisfy the minimum coverage or § 401(a)(26) participation requirements, and the applicant so requests, a determination letter will take into account whether the plan satisfies the nondiscriminatory classification test of § 410(b)(5)(B). In this case, if the requirements of § 410(b) or § 401(a)(26) are to be applied on an employer-wide basis under the special rules for employer-wide plans, a determination letter will take into account whether the requirements of the applicable special rule set forth in § 1.414(r)-1(c)(2)(ii) or § 1.414(r)-1(c)(3)(ii) are met.

.10 Publication 794, Favorable Determination Letter, contains other information regarding the scope of a determination letter, including the requirement that all information submitted with the application be retained as a condition of reliance. In addition, the specific terms of each letter may further define its scope and the extent to which it may be relied upon.

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

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

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

.04 An applicant requesting a determination letter must file the material required by this revenue procedure with the Employee Plans Determinations manager (EP Determinations) at the address in section 6.17. The filing of the application, when accompanied by all information and documents required by this revenue procedure, will generally serve to provide the Service with the information required to make the requested determination. However, in making the determination, the Service may require the submission of additional information. Information submitted to the Service in connection with an application for determination may be subject to public inspection to the extent provided by § 6104. The applicant should include Employee Plans Compliance Resolution System documentation, if any, (e.g., closing agreement or compliance statement) with the determination letter application.

.05 Except in the case of applications involving master and prototype plans filed on Form 5307 or determination letters for volume submitter plans under section 9.02(2)(d), a complete copy of the plan and trust instrument is required to be included with the determination letter application. All changes made to the most recently approved version of the plan must be redlined or highlighted. An application will be returned as incomplete if it fails to include a copy of the plan that redlines or highlights the changes to the most recently approved version of the plan. The determination letter application must also include a copy of the signed and dated timely good faith EGTRRA amendments, required interim and other plan amendments (even if these amendments are dated earlier than a previous determination letter issued with respect to the plan) to show that the conditions for eligibility for the EGTRRA remedial amendment period as set forth in Notice 2001-42 are satisfied. Also see sections 7.03 and 7.04 for what must be included with applications involving plan amendments.

.06 Section 9 of Rev. Proc. 2008-4 is generally applicable to requests for determination letters under this revenue procedure.

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

.08 An applicant may request that the plan be reviewed to determine that the ratio percentage test of § 410(b)(1) is satisfied or that the plan satisfies one of the design-based safe harbors under § 401(a)(4) by completing the appropriate elective lines on Form 5300 or Form 5307. Schedule Q (Form 5300) may be filed with the application to request consideration of the general test under § 401(a)(4), the average benefit test of § 410(b)(2), or any of the other requirements described on Schedule Q. The applicant must include with the application form the material and demonstrations called for in the instructions to Form 5300 or Form 5307, and, if applicable, Schedule Q.

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

.10 The appropriate user fee, if applicable, must be paid according to the procedures of Rev. Proc. 2008-8, page , this Bulletin. Form 8717, User Fee for Employee Plan Determination, Opinion, and Advisory Letter Request, must accompany each determination letter request. If the criteria for the user fee exemption are met in accordance with Notice 2003-49, 2003-2 C.B. 294, the certification on Form 8717 must be signed. Stamped signatures are not acceptable.

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

.12 If the application for determination involves an issue where contrary authorities exist, failure to disclose or distinguish such significant contrary authorities may result in requests for additional information, which will delay action on the application.

.13 The Service ordinarily does not make determinations regarding the existence of an employer-employee relationship as part of its determination on the qualification of a plan, but relies on the applicant’s representations or assumptions, stated or implicit, regarding the existence of such a relationship. The Service will, however, make a determination regarding the existence of an employer-employee relationship when so requested by the applicant. In such cases, the application with respect to the qualification of the plan should be filed in accordance with the provisions of this revenue procedure, contain the information and documents in the instructions to the application, and be accompanied by a completed Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, and any information and copies of documents the organization deems appropriate to establish its status. The Service may, in addition, require further information that it considers necessary to determine the employment status of the individuals involved or the qualification of the plan. After the employer-employee relationships have been determined, EP Determinations may issue a determination letter as to the qualification of the plan.

.14 If an applicant requesting a determination letter does not comply with all the required provisions of this revenue procedure, EP Determinations, in its discretion, may return the application and point out to the applicant those provisions which have not been met. The failure to provide information required by an application, including any supplemental information required by the instructions for the application, may result in the application being returned to the applicant as incomplete. The request may also be returned pursuant to Rev. Proc. 2008-8 if the correct user fee is not attached. If such a request is returned to the applicant, the 270-day period described in § 7476(b)(3) will not begin to run until such time as the provisions of this section have been satisfied.

.15 The Service may determine, based on the application form, the extent of review of the plan document. A failure to disclose a material fact or misrepresentation of a material fact on the application may adversely affect the reliance that would otherwise be obtained through issuance by the Service of a favorable determination letter. Similarly, failure to accurately provide any of the information called for on any form required by this revenue procedure may result in no reliance.

.16 The applicant is responsible for the accuracy of any factual representations and conclusions contained in the application. In some circumstances, applicants may not be able to use precise data in preparing demonstrations or schedules that may be required to be submitted with the application. Therefore, the use of estimated data in these demonstrations and schedules is not prohibited. In addition, the data used may be for a prior plan year, provided the following conditions are satisfied: (1) the data is the most recent data available, (2) there is no misstatement or omission of material fact with respect to such prior year’s data, (3) there has been no material change in the facts (including a change in the benefits provided under the plan and employee demographics) since such prior plan year, (4) the same data is used throughout the application, (5) the data is relevant to the operational effect of the plan provisions that are under review, and (6) the applicant clearly discloses that prior year’s data is being submitted with the application. The use of estimated or prior year’s data is not a misrepresentation of material fact. A determination letter that is based on estimated or prior year’s data, however, may not be relied upon to the extent that such data does not satisfy the substantiation guidelines in Rev. Proc. 93-42. Regardless of whether the data is actual or estimated, or whether it is for the current or a prior year, data that is presented in a determination letter application must reflect any changes in the law that are considered by the Service in its determination of the plan’s qualified status.

.17 Requests for determination letters are to be addressed to EP Determinations at the following address:

Requests shipped by Express Mail or a delivery service should be sent to:

Determination letter applications will not be accepted via fax.

.18 If applications for two or more plans of the same employer are submitted together, each application should include a cover letter that identifies the name of the employer and the plan numbers and employer identification numbers of all the related plans submitted together.

.19 An authorized representative who will be submitting determination letter applications for 30 or more on-cycle individually designed plans at one time should pre-notify the Service of the submissions so that the Service can endeavor to ensure that the applications will be reviewed in one area. The pre-notification should be e-mailed to David.J.Nelson@irs.gov and should include the following information: the firm name, the names of the authorized representative(s) submitting the plans, the name and phone number of the contact person, the approximate number of submissions, and the expected date(s) of the submissions. Upon receipt of the e-mail, the representative will be contacted and assigned a number that must be entered in green ink at the upper left hand corner of the applications. For further discussion, see the Spring/Summer 2002 edition of the Employee Plans Newsletter available at www.irs.gov/retirement.

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

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

.22 A request for a status conference with the EP Determinations Manager is to be made in writing and is to be sent to the specialist assigned to review the application or, if the applicant does not know who is reviewing the application, to the EP Determinations Manager at the address in section 6.17. If, pursuant to section 15, the application for a determination letter has been submitted to Employee Plans Technical (EP Technical) together with a request for a waiver of minimum funding, the request for a status conference should be sent to the address in section 15.03. In this case, the right to a status conference will be with the EP Technical Manager or designee.

.01 This section 7 contains the procedures for requesting determination letters for individually-designed defined contribution and defined benefit plans including employee stock ownership plans in the following circumstances:

(1) Initial qualification.

(2) Amendment.

(3) Restatement of plan.

(4) Qualification of a plan in the event of a partial termination.

(5) Change in scope of determination letter. This means that the applicant has previously received a favorable determination letter for the plan and now wishes to modify the scope of the letter, for example, by requesting the Service to review the plan for certain nondiscrimination requirements that were not within the scope of the earlier letter.

(6) Other circumstances (excluding plan termination) such as a change in the demographics of the employer or a change in the method of testing the plan that was used in a demonstration submitted in support of an earlier application.

.02 A determination letter request for the items listed in section 7.01 is made by filing the appropriate form according to the instructions to the form and any prevailing revenue procedures, notices, and announcements. In addition, all determination letter submissions must be submitted timely under the procedures set forth in Rev. Proc. 2007-44. The timing of the submission period for any particular individually designed plan within staggered remedial amendment cycles will depend on the plan’s particular cycle. The first submission period for Cycle C individually designed plans and § 414(d) governmental plans (including governmental multiemployer plans and governmental multiple employer plans) will begin February 1, 2008 and will end on January 31, 2009. See, Rev. Proc. 2007-44 for details. Generally, an off-cycle application will not be reviewed until all on-cycle plans have been reviewed and processed. See, Rev. Proc. 2007-44, section 14.02. Section 14.02, (1)-(3) of Rev. Proc. 2007-44 lists the types of applications that may be submitted off-cycle and given the same priority as on cycle applications.

(1) Form 5300, Application for Determination for Employee Benefit Plan, must be filed to request a determination letter for individually designed plans, including collectively bargained plans.

(2) Form 5309, Application for Determination of Employee Stock Ownership Plan, must be filed as an attachment with a Form 5300, in order to request a determination whether the plan is an ESOP under § 409 or § 4975(e)(7).

(3) Schedule Q, (Form 5300), Elective Determination Requests, may be filed as an attachment with Form 5300.

.03 Because a plan amendment may affect other portions of a plan so as to cause plan disqualification, a determination letter issued on such an amendment to a plan will express an opinion on the entire plan, as amended. Therefore, the determination letter application must include a copy of the plan and trust instrument plus all plan amendments made to the date of the application. The application must also include a statement explaining how any amendments made since the last determination letter affect the plan or any other plan maintained by the employer. In addition, the applicant must send the Service any amendments that are adopted and/or proposed after the date of the determination letter application and before the Service issues the determination letter. The applicant must submit a cover letter that references the date that the pending application was submitted, the identity of the employer and the plan, and any other helpful identifying information. The amendments must be attached to the letter. Send the cover letter and the attachments to: Internal Revenue Service, TE/GE Correspondence Unit, P.O. Box 2508, Room 4024, Cincinnati, Ohio 45201. Although all such amendments must be provided to the Service, it is possible that the determination letter may not provide reliance for all of these amendments. See, Rev. Proc. 2007-44 for the scope of the Service’s review with respect to a particular determination letter application.

In general, a determination letter may not be relied upon for any period preceding the beginning of the remedial amendment cycle for which the letter is issued. Thus, for example, if an application for a determination letter includes a plan amendment that was effective before the beginning of the plan’s current remedial amendment cycle, the determination letter may not be relied upon with respect to the effect of the amendment for the period preceding the beginning of the cycle.

.04 Individually designed plans must be restated when they are submitted for determination letter applications. For this purpose, submission of a working copy of the plan in a restated format will suffice. Where a working copy is submitted with executed amendments integrated into the working copy, all such amendments must also be separately submitted. The Service considers a working copy as a document that incorporates all previously executed amendments into one restated document. The intended purpose of a working copy in a restated format is only for ease of review and plan administration. The Service reserves the right to make a determination as to whether the working copy is in a restated format that will facilitate the review of the plan.

.05 For a controlled group of corporations as defined in § 414(b), trades or businesses under common control as defined in § 414(c), an affiliated service group within the meaning of § 414(m), and entities utilizing the services of leased employees within the meaning of § 414(n), the coverage items on the application forms referred to in this revenue procedure must be completed as though the controlled group, commonly controlled trades or businesses, affiliated service group, etc., constitutes a single entity. Leased employees within the meaning of § 414(n) must be included as employees of the recipient entity (except in the case of a safe-harbor plan described in § 414(n)(5)). See sections 9 through 11 of Rev. Proc. 2007-44 for a discussion of the five-year remedial amendment cycle that applies in certain special circumstances, including the cycle that applies to plans maintained by multiple members of a controlled group and to plans maintained by employers that are members of an affiliated service group under § 414(m).

.01 The conditions under which, and the extent to which, adopting employers of M&P and volume submitter plans may rely on favorable opinion or advisory letters without having to request individual determination letters are set forth in section 19 of Rev. Proc. 2005-16. Rev. Proc. 2005-16 describes the requirements that apply to M&P and volume submitter plans and the procedures for requesting opinion letters and advisory letters on M&P and volume submitter plans. Section 9 of this revenue procedure describes the procedures for requesting determination letters on M&P and volume submitter plans for adopting employers who need to obtain a determination letter in order to have reliance or who otherwise wish to obtain a determination letter, for example to expand the scope of reliance.

.02 If an employer can rely on a favorable opinion or advisory letter pursuant to section 19 of Rev. Proc. 2005-16, the opinion or advisory letter shall be equivalent to a favorable determination letter. For example, the favorable opinion or advisory letter shall be treated as a favorable determination letter for purposes of section 21 of this revenue procedure, regarding the effect of a determination letter, and section 5.01(4) of Rev. Proc. 2006-27, 2006-1 C.B. 945, regarding the definition of “favorable letter” for purposes of the Employee Plans Compliance Resolution System.

.01 This section contains procedures for requesting determination letters for adopting employers of volume submitter plans and M&P plans.

.02 With respect to determination letters for adopting employers of volume submitter plans:

(1) A request for a determination letter for an employer’s adoption of an approved volume submitter plan must be sent to the address provided in section 6.17.

(2) The request for a determination letter must include the following:

(3) Deviations from the language of the approved specimen plan will be evaluated based on the extent and complexities of the changes. If the changes are determined not to be compatible with the volume submitter program, the Service may require the applicant to file Form 5300 and pay the higher user fee. See also, Rev. Proc. 2007-44, section 19.

(4) An employer will not be treated as having adopted a volume submitter plan if the employer has signed or otherwise adopted the plan prior to the date on the volume submitter specimen plan’s advisory letter. In this case, the determination letter application for the employer’s plan may not be filed on Form 5307 and will not be eligible for a reduced user fee. A determination letter application for a volume submitter plan must be based on the approved volume submitter specimen plan with any applicable modifications.

(5) In addition, the practitioner will be able to file determination letter requests on behalf of employers adopting substantially similar plans who need a determination letter to have reliance or who otherwise desire a determination letter.

.03 Form 5307 must be filed to request a determination letter for the adoption of an M&P plan by an adopting employer. Schedule Q may be filed as an attachment to Form 5307.

.04 The determination letter request must include the following:

(1) An adoption agreement showing which elections the employer is making with respect to the elective provisions contained in the plan;

(2) A copy of the plan’s most recent opinion letter; and </