7.11.1  Employee Plans Determination Letter Program

Manual Transmittal

September 23, 2014

Purpose

(1) This transmits revised IRM 7.11.1, Employee Plans Determination Letter Program, Employee Plans Determination Letter Program.

Material Changes

(1) This IRM is updated to reflect current procedures and revisions of annual revenue procedures (i.e., Rev. Proc. 2007-44, Rev. Proc. 2014-4, Rev. Proc. 2014-6 and Rev. Proc. 2014-8)

(2) IRM 7.11.1.7.1, Incorrect Determination Letters, is added.

(3) IRM 7.11.1.9, Determining the Scope/Verifying Prior Law, is added.

(4) IRM 7.11.1.26, International Issues, is added.

(5) IRM 7.11.1.27, Qualification issues for Certain Plans of Puerto Rico, is added.

(6) IRM 7.11.1.27.1, Dual-Qualified Plans, is added.

(7) IRM 7.11.1.27.2, Puerto Rican Plan Election Under ERISA section 1022(i)(2), is added.

(8) IRM 7.11.1.37, Normal Retirement Age for Pension Plans - Final Regulations is added.

(9) Exhibit 7.11.1-2, Commonly Used Acronyms is deleted and replaced with Case File Assembly Guide.

(10) Exhibit 7.11.1-3, Case File Assembly Guide is moved to Exhibit 7.11.1-2 and new Exhibit 7.11.1.-3, Code Sections which may be Incorporated by Reference is added.

(11) Exhibit 7.11.1-4, A List of Quality Assurance Bulletins is deleted and replaced with International Worksheet.

(12) IRM sections are updated and moved in order to improve readability. The following chart shows the IRM renumbering:

2008 version Modification Current version
IRM 7.11.1.1.1, Program Description updated, retitled and moved to IRM 7.11.1.2, Description of the EP Determinations Program
IRM 7.11.1.2.1, Areas Where Determination Letters are Issued updated and moved to IRM 7.11.1.3.1, Areas Where Determination Letters Are Issued
IRM 7.11.1.2.2, Types of Requests for which Determination Letters are NOT Issued updated and moved to IRM 7.11.1.3.2, Types of Requests for which Determination Letters are NOT Issued
IRM 7.11.1.3, Acronyms and Abbreviations obsolete  
IRM 7.11.1.4, Authorities updated, retitled and moved to IRM 7.11.1.11.3, Notice of Third Party Contacts and IRM 7.11.1.2, Description of the EP Determinations Program
IRM 7.11.1.5, Initial Processing Procedures and IRM 7.11.1.11, Processing Order updated and moved to IRM 7.11.1.5, Initial Processing Procedures
IRM 7.11.1.6, User Fees updated, retitled and moved to IRM 7.11.1.10, User Fee Requirements
IRM 7.11.1.7, EP/EO Determination System (EDS) and IRM 7.11.1.8, Tax Exempt Determination System (TEDS) / Modified Tax Exempt Determination System (MEDS) updated, retitled and moved to IRM 7.11.1.4, Computer Systems
IRM 7.11.1.9, Taxpayer Representatives updated and moved to IRM 7.11.1.11, Taxpayer Representatives
IRM 7.11.1.10, Individually Designed Plans updated and moved to IRM 7.11.1.21, Individually Designed Plans
IRM 7.11.1.12, Screening obsolete.  
IRM 7.11.1.13, Case Processing Procedures obsolete.  
IRM 7.11.1.14, Application Forms for EP Determination Letters obsolete.  
IRM 7.11.1.15.3, EP Alert Guidelines obsolete.  
IRM 7.11.1.16, Extent of Analysis obsolete.  
IRM 7.11.1.17, Additional Information Requests updated and moved to IRM 7.11.1.13, Additional Information Requests
IRM 7.11.1.18, IRC 401(b) Period updated and moved to IRM 7.11.1.12, IRC 401(b) Period
IRM 7.11.1.19, Case Disposition obsolete.  
IRM 7.11.1.20, Withdrawal of Applications updated and moved to IRM 7.11.1.16, Withdrawal of Applications
IRM 7.11.1.21, Assembly of Administrative File obsolete.  
IRM 7.11.1.22, EDS Closing Information and IRM 7.11.1.23, Favorable Determination Letters (FDL) updated, retitled and moved to IRM 7.11.1.7, Favorable Determination Letters (FDL)
IRM 7.11.1.24, Administrative File updated and moved to IRM 7.11.1.35, Administrative File
IRM 7.11.1.25, Status Conference about Delayed Determination Letter updated, retitled and moved to IRM 7.11.1.23, Delayed Determination Letter Conference
IRM 7.11.1.26, Special Processing Issues and Procedures obsolete.  
IRM 7.11.1.27, Abusive Transactions / Listed Transactions updated and moved to IRM 7.11.1.25, Abusive Transactions / Listed Transactions
IRM 7.11.1.28, Affiliated Service Groups and Leased Employees updated and moved to IRM 7.11.1.29, Affiliated Service Groups and Leased Employees
IRM 7.11.1.29, Church Plans updated and moved to IRM 7.11.1.30, Church Plans
IRM 7.11.1.30, Form 5310-A, Notice of Plan Merger, Consolidation, Spinoff or Transfer of Plan Assets or Liabilities - Notice of Qualified Separate Lines of Business obsolete.  
IRM 7.11.1.31, Governmental Plans updated and moved to IRM 7.11.1.33, Governmental Plans
IRM 7.11.1.32, Interested Party Notices Upon Plan removed from IRM and will be added to Termination removed from IRM and was added to IRM 7.12.1, Plan Terminations
IRM 7.11.1.32.1, Interested Party Comments updated and moved to IRM 7.11.1.28, Interested Party Comments
IRM 7.11.1.33, Multiple Employer Plans updated and moved to IRM 7.11.1.32, Multiple Employer Plans
IRM 7.11.1.34, Terminating Plans updated and moved to IRM 7.11.1.20, Terminating Plans
IRM 7.11.1.35, PBGC Notice on Plan Termination removed from IRM and will be added to IRM 7.12.1, Plan Terminations
IRM 7.11.1.36, Group Trust (Pooled Investment) updated and moved to IRM 7.11.1.34, Group Trust (Pooled Investment)
IRM 7.11.1.37, Plans Not Timely Amended updated, retitled and moved to IRM 7.11.1.36, Plan Document Failures/Qualification Issues
IRM 7.11.1.38, Suspense Cases updated and moved to IRM 7.11.1.19, Suspense Cases
IRM 7.11.1.39, Introduction to Pre-Approved Plans updated and moved to IRM 7.11.4, IRC Section 401(a) Pre-Approved Plans Program
IRM 7.11.1.40.1, Mandatory Review Cases through IRM 7.11.1.40.4, Cases Returned to the Group by QAS on Form 5456, Reviewers Memorandum EP/EO updated moved to IRM 7.11.9, Mandatory-TEQMS case reviews
IRM 7.11.1.40.5, Referrals via EP Classifications Unit updated, retitled and moved to IRM 7.11.10, EP Examination and Fraud Referral Procedures
IRM 7.11.1.40.6, Proposed Adverse Cases updated and moved to IRM 7.11.11, Proposed Adverse Cases
IRM 7.11.1.40.7, Fraud Referrals updated and moved to IRM 7.11.10, EP Examination and Fraud Referral Procedures
IRM 7.11.1.40.8, Technical Advice Requests updated and moved to IRM 7.11.12, Preparing Technical Advice Requests

Effect on Other Documents

IRM 7.11.1 dated September 1, 2008 is superseded.
Quality Assurance Bulletin (QAB) 2012-1, Verification of Prior Plan Documents in the Absence of a Determination Letter dated October 24, 2011 is superseded.
Quality Assurance Bulletin (QAB) 2011-1, Normal Retirement Age Final Regulations and Notice 2007-69 dated October 27, 2010 is superseded.
Quality Assurance Bulletin (QAB) 2010-2, Code Sections which may be Incorporated by Reference dated December 7, 2009 is superseded.
Quality Assurance Bulletin (QAB) 2009-1, EGTRRA Staggered Remedial Amendment Period and Remedial Amendment Cycle for Pre-Approved Defined Contribution Plans (Revised) dated December 15, 2008 is superseded.
Quality Assurance Bulletin (QAB) 2007-2, EGTRRA Staggered Remedial Amendment Period and Remedial Amendment Cycle for Individually Designed Plans dated September 27, 2007 is superseded.
Quality Assurance Bulletin (QAB) 2006-5, Verification of Prior Plan Documents in the Absence of a Determination Letter dated September 8, 2006 is superseded.
Quality Assurance Bulletin (QAB) 2006-3, Part-Time Employees Revisited dated February 14, 2006 is superseded.
Quality Assurance Bulletin (QAB) 2004-1, Case File Assembly dated April 8, 2004 is superseded.
Quality Assurance Bulletin (QAB) 2003-2, Processing Determination Letter Applications Involving Plan Mergers, Consolidations, Spinoffs, or Transfers of Plan Assets or Liabilities dated February 26, 2003 is superseded.
Quality Assurance Bulletin (QAB) 2002-2, Interested Party Comments dated January 7, 2002 is superseded.
Quality Assurance Bulletin (QAB) 2001-3, Return of Applications for Lack of Response dated January 25, 2001 is superseded.
Quality Assurance Bulletin (QAB) 2001-2 , Fail Safe Provisions dated January 25, 2001 is superseded.
Quality Assurance Bulletin (QAB) 2000-2, Verification of Prior Plan Documents in the Absence of a Determination Letter dated July 18, 2001 is superseded.
Quality Assurance Bulletin (QAB) 1996-5, Determination Letter Issues dated February 16, 1996 is superseded.
Quality Assurance Bulletin (QAB) 1996-4, Avoiding Inflammatory Language in Case Files dated October 26, 1995 is superseded.

Audience

Tax Exempt and Government Entities (TE/GE) Employee Plans Personnel

Effective Date

(09-23-2014)

Robert Choi
Director, Employee Plans
Tax Exempt and Government Entities

7.11.1.1  (09-23-2014)
Overview

  1. This IRM provides procedures and technical guidance to employees reviewing applications for favorable determination letters.

  2. The procedures and guidance apply to:

    • Employee Plans (EP) Determinations specialists.

    • EP Determinations Quality Assurance Staff (QAS).

    • EP Determinations Group Managers.

  3. Taxpayers may submit requests for favorable determination letters (FDL) using any of the application forms listed under IRM 7.11.1.3, Application Forms for EP Determination Letters.

  4. Taxpayers may also submit requests for "pre-approved" opinion and advisory letters. Applications for pre-approved opinion and advisory letters are considered under the procedures described in IRM 7.11.4, Employee Plans Determination Letter Program, IRC Section 401(a) Pre-Approved Plans Program.

7.11.1.2  (09-23-2014)
Description of the EP Determinations Program

  1. Delegation Order 7-1 (formerly DO-112, Rev. 11) gives the TE/GE Director, Employee Plans authority to issue FDLs and, where the facts so indicate, notices of proposed adverse determination, in accordance with the currently applicable revenue procedures that set forth the procedures of the various offices of the Internal Revenue Service (the Service) for issuing determination letters on the qualified status of pension, profit-sharing, stock bonus, and employee stock ownership plans (ESOPs) under IRC 401, IRC 403(a), IRC 409, and IRC 4975(e)(7), and the status for exemption of any related trusts or custodial accounts under IRC 501(a), provided that the determination does not involve application of IRC 502 (feeder organizations) or IRC 511 (unrelated business income).

  2. The re-delegation of authority under Delegation Order 7-1 can be no lower than to Internal Revenue Agents, GS-11, or Tax Law Specialists, GS-11 (collectively referred to as Determination Specialists).

    Note:

    See IRM 1.2.46. Delegations of Authorities for the Rulings and Agreements Process

  3. EP Determinations is part of EP Rulings and Agreements within Tax Exempt and Government Entities (TE/GE).

  4. Determination Letters are generally issued in the name of the Director, EP Rulings and Agreements, or Manager, EP Determinations.

  5. EP Determinations Program is structured as follows:

    1. The Manager, EP Determinations oversees the EP Determinations Letter Program. Two Area Managers report directly to the Manager, EP Determinations. Frontline Managers report to one of the two Area Managers and assume responsibility for a group of EP Determinations Specialists.

    2. The Manager, EP Determinations Quality Assurance, with a staff of senior Determination Specialists, independently oversees the review of cases and ensures quality case assessment.

      Note:

      QAS reviews EP Determinations cases designated for mandatory review or selected for Tax Exempt Quality Measurement System (TEQMS) review. See IRM 7.11.3, Tax Exempt Quality Measurement System (TEQMS) and IRM 7.11.9, Mandatory and TEQMS Case Reviews. A Form 3198-A, TE/GE Special Handling Notice should be completed and attached to the front of any case file being forwarded to QAS.

  6. Rev. Proc. 2014-6 (revised annually) provides directions on HOW to submit a determination letter application while Rev. Proc. 2007-44 provides directions on WHEN to submit a determination letter application.

  7. In general, employee plans are reviewed by the Service for compliance with the form requirements (stated in IRC 401(a)). In addition, certain nondiscrimination requirements are considered if the taxpayer specifically requests that they be considered.

7.11.1.3  (09-23-2014)
Application Forms for EP Determination Letters

  1. Determination letters (DL) may be requested on the following forms:

    Form # Form Title Purpose
    Form 5300 Application for Determination for Employee Benefit Plan Used for individually designed plans and for adopters of pre-approved plans under certain circumstances.
    Form 5307 Application for Determination for Adopters of Modified Volume Submitter Plans Used for volume submitter plans where the employer has made limited modification to the language of the approved specimen plan.
    Form 5309 Application for Determination of Employee Stock Ownership Plan Submitted as an attachment to Form 5300 for ESOPs.
    Form 5310 Application for Determination for Terminating Plans Used for terminating plans, however, partial termination DL requests must be submitted on Form 5300.
    Form 5316 or Cover Letter Application for Group or Pooled Trust Ruling See IRM 7.11.1.34, Group Trust (Pooled Investment).
  2. See Rev. Proc. 2014-6 (revised annually) for more information on what is required to be submitted with the application.

7.11.1.3.1  (09-23-2014)
Areas Where Determination Letters Are Issued

  1. Per Rev. Proc. 2014-6 (revised annually) section 3.01, taxpayers may request determination letters (DLs) for the following plans/issues:

    1. Individually Designed Plans (including collectively bargained plans).

    2. Employee Stock Ownership Plans (ESOP's).

    3. Adoption of volume submitter plans (where the employer has made limited modifications to the language of the approved specimen plan).

    4. Multiple Employer Plans.

    5. Group Trusts.

    6. IRC 414(x) Combined Plans.

    7. Terminating Plans.

    8. Partial Terminations.

    9. Multiemployer plan covered by Pension Benefit Guaranty Corporation (PBGC) insurance.

  2. Special procedures apply with regard to the following plans/issues:

    1. Affiliated Service Group status under IRC 414(m). See Rev. Proc. 2014-6 (revised annually) section 14.

    2. Leased Employee status under IRC 414(n). See Rev. Proc. 2014-6 (revised annually) section 14.

    3. Partial Terminations. See Rev. Proc. 2014-6 (revised annually) section 14.

    4. Minimum Funding Waivers. See Rev. Proc. 2014-6 (revised annually) section 15.

    5. IRC 401(h) DL requests. See Rev. Proc. 2014-6 (revised annually) section 16.

    6. IRC 420 DL requests. See Rev. Proc. 2014-6 (revised annually) section 16.

  3. If a request for a DL relates to a pending issue concerning the prior status of the plan or trust, the request will be held until the pending issue is resolved.

7.11.1.3.2  (09-23-2014)
Areas Where Determination Letters Are Not Issued

  1. Per Rev. Proc. 2014-6 (revised annually) section 3.02, a DL will not be issued for applications involving the following issues:

    1. IRC 72, IRC 79, IRC 105 , IRC 125, IRC 127, IRC 129, IRC 402, IRC 403 (other than IRC 403(a)), IRC 404, IRC 409(l), IRC 409(m), IRC 412, IRC 457, IRC 511 through IRC 515, and IRC 4975 (other than IRC 4975(e)(7)), unless the DL is authorized under Rev. Proc. 2014-4 (revised annually) section 7.

    2. Plans or plan amendments for which automatic approval is granted pursuant to section 19.01 of Rev. Proc. 2011-49 which superseded Rev. Proc. 2005-16.

    3. Certain plan amendments that are deemed not to alter the qualified status of a plan under IRC 401(a).

  2. In general, a DL will not be issued to plans that combine an ESOP (as defined in IRC 4975(e)(7)) with retiree medical benefit features described in IRC 401(h) (HSOPs). The DL will also not rule on whether the combination of an ESOP with an HSOP in the plan adversely affects its qualification under IRC 401(a).

  3. A DL will not be issued for certain plan amendments, including an amendment which:

    1. Permits a trust forming part of a plan to participate in a pooled fund arrangement described in Rev. Rul. 81-100, as clarified and modified by Rev. Rul. 2004-67 and Rev. Rul. 2011-1 which was modified by Rev. Rul. 2014-24.

    2. Adjusts the maximum limitations under IRC 415 to reflect annual cost-of-living increases, other than an amendment to the plan that adds an automatic cost-of-living adjustment.

    3. Includes language pursuant to Section 403(c)(2) of Title I of the Employee Retirement Income Security Act (ERISA) concerning the reversion of employer contributions made as the result of a mistake of fact.

    Note:

    See Rev. Proc. 2014-6 (revised annually) section 3 for full list.

7.11.1.3.2.1  (09-23-2014)
Procedures When Not Authorized to Issue a DL

  1. If EP Determinations is not authorized to issue a DL for the type of plan submitted, return the case to the taxpayer using the following procedures:

    1. Complete Form 5621, Technical Analysis Control Sheet and add explanation of why not authorized to rule in the Notes section.

    2. Refund any user fee paid with the application. See IRM 7.11.1.10.3, Specialist User Fee Responsibilities.

    3. Prepare the closing Letter 1924 (DO/CG), Letter to Return Application if not Authorized to Rule. Use caveat 2 to show authority for returning case (i.e., Rev. Proc. 2007-44) and caveat 5998 if there is a valid Power of Attorney (POA). See IRM 7.13.5., Letter Generation.

    4. Close case using closing code "03" , Returned Incomplete.

    5. Complete the law indicator. If the plan has a prior DL, use the same law indicator as before. However, if the last law indicator for the prior law was anything but K, M, or J or if the plan has no prior DL, use "Z" .

7.11.1.4  (09-23-2014)
Computer Systems

  1. To process DL applications, EP Determinations uses two computer systems. The systems are:

    • Employee Plans and Exempt Organization Determination System (EDS).

    • Tax Exempt Determination System (TEDS).

7.11.1.4.1  (09-23-2014)
Employee Plans/Exempt Organizations Determination System (EDS)

  1. EDS is the system for processing and controlling DL applications.

  2. It is the legacy system and is used to close all cases. Cases flow to this system for final closure and creation of the FDL for non-Auto Closures. The Tax Exempt Quality Measurement System (TEQMS) selection process is also conducted in this system.

  3. Data in the EDS system is also used by TE/GE and EP management for planning and decision making purposes.

  4. EDS guidance is provided in IRM 7.14.1, Employee Plans Determination System (EDS) User Manual - Introduction.

7.11.1.4.2  (09-23-2014)
Tax Exempt Determination System (TEDS)

  1. TEDS is a paperless system. Documents are scanned into the system allowing specialists immediate access to case data.

  2. TEDS electronically stores all images and case data for determination applications and subsequent related documents in the Records Repository.

  3. Currently DL applications can be processed in TEDS up to the point of closure, but all applications will continue to be closed and DLs generated on EDS.

  4. TEDS guidance is provided in IRM 7.15.1, Tax Exempt Determination System (TEDS), Employee Plans User Manual Introduction.

7.11.1.5  (09-23-2014)
Initial Processing Procedures

  1. All EP application forms are sent to the Cincinnati Service Processing Center (CSPC) at the address listed in Exhibit 7.11.1-1, Mailing Address List.

    Exception:

    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, Form 4461-B, Application for Approval of Master or Prototype or Volume Submitter Plans are received and processed using the procedures in IRM 7.11.4, Employee Plans Determination Letter Program, IRC Section 401(a) Pre-Approved Plans Program.

  2. Upon receipt, each DL application receives a control date, usually the postmark or received date, which starts the 270-day period under IRC 7476, declaratory judgments relating to qualification of certain retirement plans. An Acknowledgement Notice 3335C is also created at this time by Correspondex and sent to the taxpayer/POA.

    Note:

    DLs may not be issued until at least 60 days after the control date to permit time for interested parties, Department of Labor (DOL) and PBGC to submit comments. See IRM 7.11.1.24, 60-Day Period.

  3. Employees at the CSPC process the user fee and establish the application onto TEDS using the procedures outlined in IRM 3.45.1.2, Processing Employee Plan and Exempt Organization Determination Applications and User Fees. This information is then rolled over to EDS.

  4. After an application is established on TEDS (usually in status 51 or 61), it will be reviewed by specialists for procedural and technical correctness.

7.11.1.6  (09-23-2014)
EP Case Assignment Procedures

  1. Specialists are responsible for managing their own inventory, if cases are needed they should be requested from the applicable "bucket" secretary.

  2. "Bucket" secretaries assign cases in accordance with the EP Inventory List. The Inventory List divides the inventory based on:

    • Type of application (Form 5300, Form 5307, Form 5310)

    • Case category

    • Grade Level (Grade 11, 12, 13)

  3. To the extent possible, the same specialist should not review the same taxpayer's plan more than two times in succession. This should not be construed as meaning that a specialist could not review several plans of a taxpayer at the same time. The use of these measures will minimize the possibility of overlooking errors in plan design.

7.11.1.7  (09-23-2014)
Favorable Determination Letters (FDL)

  1. If it is determined that the plan is in compliance with IRC 401(a), the DL application can be closed by issuing a FDL.

  2. The specialist is accountable for the accuracy of the FDL. The information entered on the Form 5621, Technical Analysis Control Sheet is the source data used to enter the FDL information into EDS. The following sources will also be used to assist in generating the FDL:

    1. IRM 7.13.5, EP Automated Processing, Letter Generation.

    2. IRM 7.11.5, Proper Use of Determination Letter Caveats.

    3. The application.

    4. Plan document(s) and amendment(s).

  3. After the FDL is printed, review the application package to ensure the accuracy of all names, addresses, and caveats before submitting the case to the group manager for approval.

  4. Group managers or their delegates may review each case to ensure:

    1. The DL is correct.

    2. All procedural requirements are satisfied.

  5. Upon completion of review by the group manager or their delegate, the case is submitted to the secretary for final EDS closure. At the time the case is input for closure on EDS, the case may be randomly selected for TEQMS and/or mandatory review. Cases designated as "Mandatory" by EDS only apply to Form 5310. A Form 3198-A, TE/GE Special Handling Notice should be completed and attached to the front of any case file being forwarded to QAS for additional review.

  6. TEDS cases are closed in status 57 by the manager.

  7. Mail the FDL using the regular postal service unless DOL, PBGC or interested parties comments were submitted. If that is the case, mail the FDL using certified or registered mail. Letters for cases selected for TEQMS and/or Mandatory review should NOT be mailed. QAS will mail the letter at the end of the case review.

7.11.1.7.1  (09-23-2014)
Incorrect Determination Letters

  1. Specialists are not permitted to issue corrected DLs if they receive a call from a POA or taxpayer when the prior issued letter was incorrect. If a DL contains incorrect information, the caller may request correction from the letter correction unit.

  2. The request for correction may be faxed or mailed to the letter correction unit. The request should contain a copy of the incorrect DL, an explanation regarding why it is incorrect, and how it should be changed.

  3. The request may be faxed to 513-263-4330 or mailed to Room 4024 at the EP Determinations centralized site. See Exhibit 7.11.1-1, Mailing Address List.

7.11.1.8  (09-23-2014)
Case File Requirements

  1. All case files must be documented to support the conclusion reached. The cycle worksheets, deficiency checksheets and individually designed workpapers should be utilized to meet this requirement.

  2. Workpaper's should be:

    1. Neat and legible.

    2. Contain an explanation of non-routine abbreviations.

    3. Contain the specialist name and date each workpaper was prepared.

    4. Organized and numbered for ease of review.

    5. Indexed and tabbed for cases not routinely closed with a FDL (i.e., adverse letter).

  3. For better accuracy, the specialist may pencil adoption dates on plan and amendment documents. However, the application should never be defaced. If it becomes necessary to use the application as documentation, make a copy and use the copy as a workpaper.

  4. The case file should be properly organized as described in IRM 7.11.1.35, Administrative File.

7.11.1.8.1  (09-23-2014)
Form 5621, Technical Analysis Control Sheet

  1. A Form 5621 must be included in every case prior to closure. There are currently multiple versions of the Form 5621 which will be used depending on the type of review done on the case. Use the appropriate version and fill out according to the procedures being used in the "Case Processing" folder on the shared server.

7.11.1.8.2  (09-23-2014)
Form 5464-A, Case Chronology Record

  1. The Form 5464-A, Case Chronology Record, is used to keep a complete log of case actions and to assess case progress.

  2. Management may use the form to monitor case management and time utilization.

  3. Do NOT include on Form 5464-A technical or procedural issues and conclusions, which belong on Form 5621, or other workpapers.

  4. Whenever an action is performed on the case, enter on the Form 5464-A:

    1. Action date.

    2. Time charged.

    3. Action code.

    4. Brief explanation, if the action code is insufficient.

    5. All names, titles and phone numbers for representatives, taxpayers, and interested parties contacted.

    6. Follow-up dates for all actions.

  5. For TEDS cases, use the Case Chronology Record (CCR) on TEDS, not the Form 5464-A. The CCR must be updated as work is done on the case.

7.11.1.8.3  (09-23-2014)
Avoiding Inflammatory Language In Case Files

  1. The tone of internal and external communications in all case files should reflect positively or neutrally on the Service if correctly quoted by the media or the taxpayer.

  2. In general, our written products should include:

    1. A respectful tone.

    2. Tactful wording.

    3. Positive words.

    4. Courteous, reasonable and helpful writing.

    5. Objective, clear, and dignified language.

  3. Written products should not include:

    1. Irrelevant information, especially on controversial topics.

    2. Direct or implied criticism of the taxpayer.

    3. Negative or discourteous words or connotations.

    4. Flippant tone.

    5. Implications of doubt as to taxpayer’s honesty or intelligence.

7.11.1.9  (09-23-2014)
Determining the Scope/Verifying Prior Law

  1. Always verify that the plan was properly amended for prior legislation. The scope of review should include verification of compliance with the applicable Cumulative List (CL) for the remedial amendment cycle (RAC) immediately preceding the cycle in which the application was submitted.

    Example:

    A taxpayer with an Employer Identification Number (EIN) ending in 4 submits a Form 5310 application on March 15, 2013. Since the EIN ends in 4, the taxpayer would normally fall under cycle D. Therefore, the scope of the review must begin with the cycle D1 RAC amendments.

    Example:

    A taxpayer with an Employer Identification Number (EIN) ending in 3 submits a Form 5300 application on January 31, 2014. Since the application is an on-cycle C2 case, the scope of the review must begin with the cycle C1 RAC amendments.

  2. Compliance with the applicable Cumulative List for the preceding RAC must be verified on every application and the file should be documented with the conclusion reached regarding prior law compliance.

  3. In order to prove prior law compliance, the taxpayer may provide either:

    1. A copy of the FDL for the plan's prior RAC.

    2. Timely adopted interim amendments and plan documents/adoption agreements for the plan's applicable CL for the prior RAC.

  4. If the taxpayer cannot prove that the plan was timely amended for the provisions of the applicable CL for the prior RAC, the specialist should request managerial approval to expand the scope of review to include laws prior to the plan’s initial cumulative list.

  5. Additionally, if it is determined that a plan has not been timely amended for prior law, the plan is considered to have a Plan Document Failure as described under Rev. Proc. 2013-12 and a closing agreement may be needed to correct the failure. The specialist should consult with the manager and see IRM 7.11.8, Employee Plans Determination Letter Program, EP Determinations Closing Agreement Program.

7.11.1.10  (09-23-2014)
User Fee Requirements

  1. Requesting a determination letter usually requires payment of a user fee. Rev. Proc. 2014-8 (revised annually) contains a list of the fees for determination letter requests but some applications may be exempt from these fees.

  2. Use the "User Fee Flow Chart" to determine if an application meets the requirements for exemption from paying a user fee. The flow chart is found on the shared server in the "Case Processing" folder.

  3. When applying for a determination letter an employer must submit a Form 8717,User Fee for EP Determination Letter Request or a payment confirmation from pay.gov, if applicable.

  4. Some applications may be exempt from the user fee. See IRM 7.11.1.10.1, Determination Letter User Fee Exemptions for the First RAC and IRM 7.11.1.10.2, Determination Letter User Fee Exemptions for the Second RAC. However, user fees are always required for the following types of applications:

    1. Group trusts.

    2. Minimum funding requirement waiver requests.

    3. Advisory (Volume Submitter) and opinion (Master & Prototype) letters.

  5. Each specialist assigned a case is responsible for reviewing the Form 8717 or payment confirmation and ensuring that the correct user fee was submitted with the application. See IRM 7.11.1.10.3, Specialist User Fee Responsibilities.

7.11.1.10.1  (09-23-2014)
User Fee Exemptions for the First RAC

  1. For the first five-year and six-year RACs (all applications filed before January 31, 2011 including DB plans submitted during the six-year remedial amendment cycle ending on April 30, 2012), an eligible employer's application for a determination letter for a pension, profit-sharing, stock, bonus, annuity or ESOP plan is exempt from the user fee if the application is filed:

    • By the last day of the fifth plan year of the plan's existence, or

    • Any remedial amendment period for the plan that begins within the plan's first five plan years (see IRC 7528(b)(2)(B)).

  2. For purposes of being exempt from the determination letter application user fees, an employer is an eligible employer for the year if the following applies:

    • The employer had no more than 100 employees who received at least $5,000 compensation from the employer for the preceding year.

    • The employer had at least one non-highly compensated employee participating in the plan (see IRC 7528(b)(C)(ii) and Q&A 6 in Notice 2002-1 as amplified by Notice 2003-49).

  3. In addition,

    1. For a defined contribution plan, the plan must have first been in existence on or after January 2, 1997.

    2. For a defined benefit plan, the plan must have first been in existence on or after January 3, 1996.

7.11.1.10.2  (09-23-2014)
User Fee Exemptions for the Second RAC

  1. For the second five-year and six-year RACs (all applications filed after January 31, 2011 excluding DB plans submitted during the six-year remedial amendment cycle ending on April 30, 2012), Notice 2011-86 simplified the requirements.

  2. The Service will not assess a user fee if both of the following conditions are met:

    1. The application is filed with the Service by the last day of the submission period for the plan’s current remedial amendment cycle.

    2. The plan is first in existence no earlier than January 1 of the tenth calendar year immediately preceding the year in which the submission period for the plan’s current remedial amendment cycle begins.

  3. There may be certain situations in which an application that is filed by the last day of a remedial amendment period with respect to the plan beginning within the first five plan years would nevertheless not be treated as such under the rule described in the preceding paragraph. If the Service determines that the application is not exempt, the applicant will be asked to submit the required user fee.

7.11.1.10.3  (09-23-2014)
Specialist User Fee Responsibilities

  1. If determined that the user fee paid was insufficient, immediately stop review of the case and return the case to the taxpayer using the procedures in IRM 7.11.1.15, Incomplete or Grossly Deficient Application.

  2. If the user fee paid was in excess, secure a properly executed Form 8717. When closing the case, send the following items via email to your manager:

    1. Copy of the original Form 8717 showing amount paid.

    2. Copy of the new Form 8717.

    3. Selected pages of the application which shows the number of participants/employees and the original effective date of the plan, if refunding for zero dollar user fee eligibility.

    4. Completed Form 1725 (CG), Routing Slip.

    5. Completed User Fee Refund Form.

      Note:

      To find the Forms listed in (d) and (e), go on the Shared Server, click on the "Case Processing" folder, then click on the "User Fees" folder, then click on the "user fee refund split fee" folder.

  3. The manager will electronically sign and return the user fee refund package and return to the specialist. The specialist will email the refund information to the User Fee Adjustments Unit at "*TE/GE-EO-Adjustments."

7.11.1.11  (09-23-2014)
Taxpayer Representatives

  1. Specialists must prevent unauthorized disclosure. Generally, only disclose sensitive information to authorized persons such as the plan sponsor/taxpayer. See IRM 11.3.10, Disclosure of Official Information - Employee Plans Information.

  2. Taxpayers often seek professionals to help navigate the determination letter application process. A Form 2848 , Power of Attorney and Declaration of Representation or Form 8821, Tax Information Authorization may be included in the application to allow the specialist to speak with third party representatives.

  3. Any authorized representative, whether under a Form 8821 or 2848, must comply with the requirements of the Statement of Procedural Rules in Treas. Reg. 601.501-601.509.

  4. Rules for the Form 2848 and Form 8821 vary. See IRM 7.11.1.11.1, Form 2848 - Authorized Representatives and IRM 7.11.1.11.2, Form 8821- Unenrolled Preparer.

  5. If a specialist needs to discuss the application with a third party contact, notification must be sent to the taxpayer first. See IRM 7.11.1.11.3, Notice of Third Party Contacts.

7.11.1.11.1  (09-23-2014)
Form 2848 - Authorized Representatives

  1. The Form 2848 allows an individual to practice before the Service. This includes all matters connected with a presentation to the Service relating to a client’s rights, privileges, or liabilities under laws or regulations administered by the Service. Such presentations include:

    1. Preparing and filing necessary documents.

    2. Corresponding and communicating with the Service.

    3. Representing a client at conferences, hearings, and meetings.

  2. An individual is only eligible to become an authorized representative on a Form 2848 if they meet one of the eleven designations listed on Part II of the Form 2848. These designations include:

    • CPAs.

    • Attorneys.

    • Enrolled Agents.

    • Enrolled Actuaries.

    • Enrolled Retirement Plan Agents.

    Note:

    Enrolled Actuaries are limited to pension issues.

  3. Unenrolled preparers, such as third-party pension administrators and consultants, are not authorized to practice before the Service and thus may not represent or advocate for a plan sponsor. If a Form 2848 is received with (h) on Part II completed, the Form 2848 is not valid and cannot be used. The specialist should request that the taxpayer provide a completed Form 8821 if they still wish to have the unenrolled preparer represent them for the determination letter application.

  4. Always verify that the Form 2848 is filled out correctly. The name of the person signing Part I of Form 2848 should also be typed or printed on this form. A stamped signature is not permitted. An original, a copy, or a facsimile transmission of the power of attorney is acceptable so long as its authenticity is not reasonably disputed. If the Form 2848 appears incomplete, notify the taxpayer and have a new one completed.

  5. Individuals named on a valid Form 2848 are entitled to copies of the correspondence and the FDL if the taxpayer checks the applicable boxes next to their names.

  6. Additional information regarding the Form 2848 can be found in Treasury Dept. Circular No. 230 and section 9.02 (12) of Rev. Proc. 2014-4 (revised annually).

  7. If it is suspected that an individual is violating any of the requirements or rules described in Treasury Dept. Circular No. 230, submit a referral to the Office of Professional Responsibility (OPR). Directions on how to properly make a referral can be found in IRM 1.25.1.3, Referral to the Office of Professional Responsibility.

7.11.1.11.2  (09-23-2014)
Form 8821 - Unenrolled Preparer

  1. Unenrolled individuals who represent taxpayers for DL applications have very limited authority because DL applications are not tax returns.

  2. Unlike attorneys, CPAs, enrolled agents and enrolled actuaries, unenrolled preparers may not:

    1. Sign documents on behalf of the plan sponsor.

    2. Represent (act as an advocate for) the sponsor.

    3. Practice before the Service.

  3. A properly executed Form 8821, Tax Information Authorization, allows an unenrolled preparer to:

    1. Provide plan information to the Service and receive plan information from the Service.

    2. Receive copies of correspondence from the Service and submit information requested by the Service (such as participant data, asset information, etc.) as part of the review of a DL application.

    3. Discuss matters raised relative to a DL application (but not as an advocate) with EP personnel as long as decisions are made by the Taxpayer, either by telephone, in person or in writing.

    Caution:

    If box 5a of Form 8821 is not checked, no correspondence (including a copy of the DL) can be shared with individual(s) listed on the Form 8821.

7.11.1.11.3  (09-23-2014)
Notice of Third Party Contacts

  1. IRC 7602(c) stipulates that Service personnel may not contact third parties with respect to the determination or collection of the tax liability without providing reasonable notice in advance to the taxpayer that contacts with persons other than the taxpayer may be made. Section 3417 of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA ’98) further amended IRC 7602(c) to require a record of such contacts and provide taxpayers with this record upon request.

  2. If the taxpayer has not received a notice within the last 12 months and it is reasonably expected that a third party contact will be made, a Letter 3164-K (DO) (TE/GE), Third Party Contact Letter, is sent by EP Determination specialists to notify the taxpayer and POA, if applicable, about the potential contact.

  3. The following items on the Letter 3164-K must be completed:

    1. Taxpayer's name, address and taxpayer identification number.

    2. Specialist's name, telephone number and badge ID number.

  4. Ensure that the address is current and mail the letter first class.

  5. Document the CCR indicating the mail date and method of delivery. Retain a copy of the letter in the case file.

  6. See IRM 25.27.1, Third Party Contact Program for more information.

7.11.1.12  (09-23-2014)
IRC 401(b) Period

  1. IRC 401(b) provides a Remedial Amendment Period (RAP) during which a plan may be amended retroactively to comply with the IRC qualification requirements. Treas. Reg. 1.401(b)-1 describes the disqualification requirements that may be amended retroactively and the remedial amendment period during which retroactive amendments may be adopted. The regulations also grant the IRS Commissioner the discretion to designate certain plan provisions as disqualifying provisions and to extend the remedial amendment period.

  2. Notice 2001-42, provided a remedial amendment period under IRC 401(b), ending no earlier than the end of the 2005 plan year, in which required retroactive remedial plan amendments for EGTRRA must be adopted (the EGTRRA remedial amendment period). Only plans that timely adopt good faith amendments can take advantage of the EGTRRA remedial amendment period.

  3. Rev. Proc. 2005-66 as modified and superseded by Rev. Proc. 2007-44 established a system of cyclical remedial amendment periods for qualified plans. The cycle system has the effect of extending the remedial amendment period until the plan's appropriate cycle.

  4. Two cycles were created:

    1. Individually designed 5 year cycle.

    2. Pre-approved 6 year cycle.

  5. The general deadline to adopt interim amendments is the later of the:

    1. Due date (including extensions) of the tax return for the taxable year that includes the date on which the remedial amendment period begins.

    2. The last day of the plan year that includes the date on which the remedial amendment period begins.

  6. The general deadline to adopt discretionary amendments is the end of the plan year in which the plan amendment is effective.

  7. For governmental plans within the meaning of IRC 414(d), the general deadline to adopt interim amendments or discretionary amendments is extended to the later of the:

    1. Deadline that would apply under the regular applicable rules of section 5.05(1) and (2) of Rev. Proc. 2007-44.

    2. Last day of the next regular legislative session beginning after the amendment’s effective date in which the governing body with authority to amend the plan can consider a plan amendment under the laws and procedures applicable to the governing body’s deliberations.

  8. For a tax exempt employer, the deadline to adopt interim amendments or discretionary amendments is the due date, plus extensions, of the Form 990 series return, which is the later of:

    1. The 15th day of the 10th month after the end of the employer’s tax year (treating the calendar year as the tax year if the employer does not have a tax year).

    2. The due date for filing the Form 990 series (plus extensions). An employer will not be treated as having obtained an extension of time for filing the Form 990 series unless such extension is actually applied for and granted.

  9. For a tax exempt employer who is not required to file a Form 990 series return, Rev. Proc. 2007-44 treats the deadline for adopting interim amendments as the 15th day of the 10th month after the end of the employer's tax year (treating the calendar year as the tax year if the employer does not have a tax year).

7.11.1.12.1  (09-23-2014)
Remedial Amendment Cycle for Individually Designed Plans

  1. Under Rev. Proc. 2007-44, an individually designed plan has a five-year RAC. Generally, the plan's five-year RAC is determined by the last digit of the taxpayers EIN that sponsors the plan. A Form 5300 will be considered on cycle if submitted within the applicable submission period. Under the general rule, the plan's RAC for the first cycle is determined as follows:

    EIN Ends Cycle Cumulative List Cycle Submission Period Begins Cycle Submission Period Ends FDL Expiration Date
    1 or 6 A1 2005 2-1-06 1-31-07 1-31-12
    2 or 7 B1 2006 2-1-07 1-31-08 1-31-13
    3 or 8 C1 2007 2-1-08 1-31-09 1-31-14
    4 or 9 D1 2008 2-1-09 1-31-10 1-31-15
    5 or 0 E1 2009 2-1-10 1-31-11 1-31-16
  2. The second cycle is as follows:

    EIN Ends Cycle Cumulative List Cycle Submission Period Begins Cycle Submission Period Ends FDL Expiration Date
    1 or 6 A2 2010 2-1-11 1-31-12 1-31-17
    2 or 7 B2 2011 2-1-12 1-31-13 1-31-18
    3 or 8 C2 2012 2-1-13 1-31-14 1-31-19
    4 or 9 D2 2013 2-1-14 1-31-15 1-31-20
    5 or 0 E2 2014 2-1-15 1-31-16 1-31-21
  3. The initial RAC for a new plan is the applicable cycle that includes the date on which the plan’s initial remedial amendment period under Treas. Reg. 1.401(b)-1 (determined without regard to the extension in section 5.03 of Rev. Proc. 2007-44) ends. New plans that submit a determination letter application by the end of their remedial amendment period and their normal cycle is more than two years away will be given the same priority as an on-cycle case and given a determination letter that expires at the end of their correct cycle. Although a new plan may file off-cycle and will receive review priority, a new plan does not have to be submitted for a determination letter off-cycle. See Rev. Proc. 2007-44 section 14.

  4. Under certain circumstances, the general rule for determining the RAC will not apply. Some of the exceptions are:

    • A Controlled Group or an Affiliated Service Group may elect "cycle A" regardless of each taxpayer's EIN.

    • Parent/subsidiary may elect to use the EIN of the parent to determine their cycle.

    • Multiple Employers plans are deemed to be "cycle B" plans regardless of Employer EIN.

    • Governmental plans (including multiple employer governmental plans) under IRC 414(d) are deemed to be "cycle C" plans regardless of Employer EIN.

    • Multi-employer plans are deemed to be "cycle D" plans regardless of Employer EIN.

    Note:

    Rev. Proc. 2009-36 and Rev. Proc. 2012-50 were published to give governmental plans the option to file under "cycle E" for only the first and second cycles.

  5. Before they submit their application, taxpayers must amend their plan for all the changes listed in the applicable cumulative list (CL). The CL is published each year by the Service, and it contains the various law changes a plan must take into account during its RAC.

7.11.1.12.2  (09-23-2014)
Remedial Amendment Cycle for Pre-Approved Plans

  1. Unlike the format of the individually designed plans (cycle A through E), pre-approved plans have a six-year RAC. DC and DB plans are off-set by two years within this RAC.

  2. Master & Prototype (M&P) sponsors or VS practitioners receive pre-approval on their plans by the Service during the first two years of the six- year cycle. Then, during years three and four, the employers who adopt Volume Submitter (VS) plans and make minor modifications may apply for a determination letter (prototype plan adopters are no longer permitted to apply for favorable DLs). The final two years of the pre-approved six-year cycle are set aside for planning for the next six-year cycle.

7.11.1.12.3  (09-23-2014)
Remedial Amendment Cycle for Plan Terminations

  1. The RAC will generally be shortened for plan terminations. Thus, any retroactive remedial plan amendments or other required amendments for a terminating plan must be adopted in connection with the plan termination.

  2. This will include plan amendments required to be adopted to reflect qualification requirements that apply as of the date of termination regardless of whether such requirements are included on the most recently published CL.

  3. An application will be deemed to be filed in connection with the plan termination if it is filed no later than the later of:

    1. One year from the effective date of termination.

    2. One year from the date on which the action terminating the plan is adopted.

  4. In no event can the application be filed later than 12 months from the date of distribution of substantially all plan assets.

7.11.1.13  (09-23-2014)
Additional Information Requests

  1. When requesting a determination letter, taxpayers must follow the general procedures outlined in Rev. Proc. 2014-6 (revised annually). If the application is missing information, the specialist can request additional information using the following letters.

  2. Letter templates are housed on EDS or on the shared server in the "Letters and Forms" folder. They should be used when requesting additional information.

    Additional Information Letter When to use
    Letter 1196 (DO/CG) Initial Request for additional Information.
    Letter 1955 (DO/CG) Second request when receive partial response after the 1196 letter.
    Letter 1197 (DO/CG) (aka Ten Day Letter) Second request when no response is received after the 1196 letter
  3. Use Letter 1196 (DO/CG), First Request for Additional Information, for the initial request for additional Information.

    Note:

    The response date should be 14 days from the date of the letter; however, the specialist should allow 28 days (14 days + 14 days mail and scanning time) for responses. If no information has been received within the 28 days, return the case using the procedures in IRM 7.11.1.15, Incomplete Applications.

  4. Use Letter 1955 (DO/CG), Second and Subsequent Request for Additional Information, to request information not included in the previous information request.

  5. Use Letter 1197 (DO/CG), Ten-Day Letter, when the taxpayer/POA fails to furnish additional information within a reasonable time (not less than 30 days) because they firmly believe the plan/application is acceptable. This letter informs the taxpayer that the additional information must be received within 10 workdays or the application will be processed using the available information, which could result in an adverse determination.

  6. When working on a TEDS case, include an Application Identification Sheet (AIS) with any written correspondence.

  7. Additional information requests should be professionally written, clearly state the issue and provide citations to the applicable authority to support the government's position.

  8. If anonymity is a concern, use last name only or request a pseudonym. See IRM 1.2.4, General Management- Use of Pseudonyms by IRS Employees .

7.11.1.14  (09-23-2014)
Returning an Application for Failure to Respond

  1. If a taxpayer fails to respond to the request for additional information, the case may be returned for failure to respond.

  2. A Letter 1012 (DO/CG) (located on EDS) should be used to return an incomplete application to the taxpayer where the application is missing a required user fee or missing required forms or documents.

  3. A Letter 2234 (DO/CG) (located on EDS) should be used only for individually designed plans (other than terminations) where the plan language deficiencies are numerous and egregious and the taxpayer has not responded.

    Note:

    A terminating plan submitted on a Form 5310 may not be returned incomplete for language deficiencies. Language deficiencies must be addressed by proposed plan disqualification.

  4. Both the Letter 1012 and Letter 2234 must be accompanied by an "Explanation of Items" which is usually a Microsoft word document which is modified to provide an itemized explanation of why the application was returned.

  5. If there are outstanding qualification issues, refer the case to exam using the procedures in IRM 7.11.10, EP Examination and Fraud Referral Procedures. Inform the taxpayer that a referral will occur.

  6. Use Closing Code "03" , Incomplete Submission, on EDS when returning a case with a Letter 1012 or Letter 2234

  7. The taxpayer will have 30 days to resubmit the application in order to preserve the original control date for purposes of determining the remedial amendment period. If the application of the resubmitted case is received after the 30-day period from the date of the 1012 or 2234 Letter, it is considered a separate application and an additional user fee is required.

7.11.1.15  (09-23-2014)
Incomplete or Grossly Deficient Application

  1. If the application is determined to be incomplete, return it using a:

    1. Letter 1012 (DO/CG) if the plan document has been reviewed and contact has been made.

    2. Letter 1013 (DO/CG) if application package is missing required documents from Rev. Proc. 2014-6.

    3. Letter 1015 (DO/CG) if the plan document has been reviewed and no contact has been made.

      Note:

      Letters are located on EDS. Use caveat 5997 to reference a List of Missing Items and caveat 5998 for the Power of Attorney, if applicable.

  2. The user fee is refunded when returning an application with a Letter 1015 (but not a Letter 1012 or Letter 1013). See IRM 7.11.1.10.3, Specialist User Fee Responsibilities.

  3. When returning a TEDS case, create an orange folder with the following documents:

    1. The 1012/1013/1015 letter.

    2. The List of Missing Items report.

    3. Incomplete Application/Withdrawal Request closing sheet.

    4. Hardcopy Case Request form.

    These forms are located on the shared server in the Case Processing Folder.

  4. Update the case to status 74PC in TEDS and close the case to the manager for approval.

  5. The manager will approve the case in TEDS and send the orange folder to the appropriate Cincinnati secretary via Form 3210, Document Transmittal to secure the hard copy file.

  6. Upon receipt of the orange folder, the secretary will:

    1. Pull the hardcopy of the case.

    2. Stamp the Letter 1012/1013/1015 and attach the List of Missing Items.

    3. Verify the case is closed in TEDS and then close the case in EDS.

    4. Make a copy of Letter 1012/1013/1015, List of Missing Items, and the EP Determination Letter and Closing Transmittal Worksheet and associate with the hard copy case to be back-end scanned.

    5. Mail the Letter 1012/1013/1015, List of Missing Items, and all case material - except for the original Form 8717 - to the taxpayer or POA.

  7. The taxpayer has 30 days to resubmit the application to preserve the original control date for determining the remedial amendment period. If the application is resubmitted after the 30-day period, the specialist working the re-submission must collect another user fee.

7.11.1.16  (09-23-2014)
Withdrawal of Applications

  1. A taxpayers' request for a DL may be withdrawn at any time prior to the issuance of a final adverse determination letter. See IRM 8.7.8.3.2, Withdrawal of the EP Application.

  2. The taxpayer must submit a written request to withdrawal the application.

  3. The application will be returned with either a Letter 2044 (DO/CG) or Letter 2045 (DO/CG).

    • Letter 2045 will be used only if the application is being withdrawn because it was off-cycle.

    • Letter 2044 will be used for all other withdrawal requests.

  4. For cases being returned with a Letter 2044 (withdrawn for a reason other than it being off-cycle), the material submitted with the application is retained by the Service and the user fee will not be refunded.

  5. For cases being returned with a Letter 2045 (withdrawn because it is off-cycle), the user fee will be refunded and all documents (except the Form 8717) will be returned to the taxpayer or POA. If the case is already in off-cycle suspense, send an email to the secretary or manager of group 7526 with the TEDS number, sponsor name, specialists group number, and a request to have the case assigned to you. When it is assigned to you in TEDS, complete a Hard Copy Case Request Form and email to group secretary. Refund the user fee using the procedures in IRM 7.11.1.10.3, Specialist User Fee Responsibilities.

  6. For all cases being returned because of withdrawal:

    1. Complete Incomplete Application/Withdrawal Request (located in Case Processing Folder on the Shared Server.

    2. Use closing code "04" .

    3. Use Law Indicator Code for the last law that could be verified (if no prior DL, use law indicator Z).

    4. Use caveat 8000 on the letter. The variable is the date of the written withdrawal request.

    5. Add caveat 10 (only for Letter 2044) if the plan has a potential disqualifying feature. Also complete EP Examination referral and send email to QAS as described below.

  7. If there are potential disqualifying features (only for Letter 2044), refer the case to exam using the procedures in IRM 7.11.10, EP Examination and Fraud Referral Procedures. Inform the taxpayer that a referral will occur.

  8. Also, if there are potential disqualifying features (only for Letter 2044), send an email to the applicable Area Closing Agreement Coordinator in QAS who will alert the Voluntary Correction Program (VCP). The taxpayer will not be able to seek correction with respect to issues raised during the determination process. The email should contain the following information:

    • Name of sponsor

    • Plan name

    • Plan number

    • EIN

    • Qualification issues identified by the specialist

  9. The 60-day period for interested party comments does not apply to withdrawn applications. If interested parties have already submitted comments, transmit a copy of the withdrawal letter to each interested party, using Pattern Letter 1935(P).

7.11.1.17  (09-23-2014)
Duplicate Submissions

  1. If it is determined that duplicate cases were submitted, the specialist will correction dispose (status 30) one of the cases. Use the following rules to determine which case to correction dispose.

    1. If both cases are in TEDS, correction dispose (status 30) one of the cases (if both have the same control date but user fee is only paid on one, dispose the case with the incorrect user fee).

    2. If one case is in TEDS and one in EDS, correction dispose the EDS case.

    3. If one case is in TEDS and one in EDS but it is necessary to keep the EDS case file for any reason. Correction dispose the TEDS case and print the necessary documents from the TEDS case file and place them in the hard copy of the EDS case file.

  2. To correction dispose the duplicate submission:

    • Complete Form 5621 and add explanation that case is a duplicate and is being correction disposed in Notes section.

    • Place the Form 5621 and a Form 5464 on the left hand side of the orange folder (if TEDS case) or case file (if EDS case). All documents from correction disposed case will stay in the case file.

    • For TEDS cases, close the duplicate case in status 74.

    • Send to secretary for case closure.

  3. Secretary will:

    • Close case.

    • Print Form 8671, EP Control Sheet.

    • Send to Files.

  4. For both cases (correction disposed and on-going):

    • Add "Duplicate EDS case # _____ has been correction disposed" on Form 5621.

    • If the user fees are not correct, email secretary when closing case to request that they send email to "*TE/GE-EO-Adjustments" . The email should contain the following statements "Change user fee on (correction disposed case) EDS case #______ to $(0). Also change the user fee on the on-going EDS case #_________ to $________ and the user fee payment code to V on both."


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