- 11.3.10 Employee Plans Information
- 22.214.171.124 Authority for Public Inspection
- 126.96.36.199 Explanation of Terms
- 188.8.131.52 Documents That May Be Inspected
- 184.108.40.206 Withholding Certain Information
- 220.127.116.11 Inspection by Plan Participants
- 18.104.22.168 Public Inspection of Documents
- 22.214.171.124.1 Contents of Written Request
- 126.96.36.199.2 Where to Send Requests
- 188.8.131.52.3 Coordinating Inspection of Requested Documents
- 184.108.40.206 Responsibility for Processing Requests
- 220.127.116.11 Public Inspection of Annual Information Returns
- 18.104.22.168 Disclosure of Returns and Return Information to the Department of Labor and the Pension Benefit Guaranty Corporation
- 22.214.171.124 Employee Plan Master File
- 126.96.36.199 Information Not Governed by IRC 6104
- Exhibit 11.3.10-1 Employee Plan Documents Open for Inspection
Part 11. Communications and Liaison
Chapter 3. Disclosure of Official Information
Section 10. Employee Plans Information
June 18, 2015
(1) This transmits the revised Internal Revenue Manual 11.3.10, Disclosure of Official Information - Employee Plans Information.
(1) Editorial changes have been made to update organizational references in. IRM 11.3.10.
The Governmental Liaison, Disclosure and Safeguards intranet home page can be found at: http:// discl.web.irs.gov/ GLD.asp
Edward T. Killen
Governmental Liaison, Disclosure & Safeguards
IRC §6104(a)(1)(B) requires that the following employee plans documents be open to public inspection at such times and in such places as the Secretary of Treasury may prescribe if maintained by the Internal Revenue Service (IRS) but only with respect to plans having more than 25 participants:
Any application filed with respect to the qualification of a pension, profit-sharing, or stock bonus plan under IRC §401(a), or IRC §403(a), an individual retirement account or annuity described in IRC §408(a), or an individual retirement annuity described in IRC §408(b).
Any application filed with respect to the exemption from tax under IRC §501(a) of an organization forming part of a plan or account referred to above.
Any application filed with respect to a request for approval of a master, prototype, or other such plan or account.
Any papers submitted in support of the applications referred to above.
Any letter or other document issued by the IRS and dealing with the qualification referred to above or the exemption from tax referred to above.
Effective January 1, 1979, prohibited transaction functions with certain exceptions have been transferred to the Department of Labor (DOL) pursuant to the President’s Employee Retirement Income Security Act (ERISA) Reorganization Plan No. 4, approved by Congress on October 13, 1978.
Generally, the Reorganization Plan gives the DOL the authority for fiduciary responsibility over prohibited transaction matters while giving the IRS authority to administer the minimum participation, vesting, and funding standards. Inquiries on Form 5500, Annual Return/Report of Employee Benefit Plan, return requirements and on return processing should be addressed to:
U.S. Department of Labor
Office of the Chief Accountant
200 Constitution Avenue, NW
Washington, D.C. 20210
Inquiries on applications and IRS determinations should be referred to TE/GE Customer Accounts Services. The toll-free telephone number is: 1-877-829-5500.
IRC §6104(a)(2) authorizes the IRS to disclose any application referred to in IRC §6104(a)(1)(B), and any other papers developed by the IRS that relate to such application, to Congressional committees in accordance with IRC §6103(f).
To the extent that the requested information is not otherwise available for public inspection under IRC §6104, the requirements of IRC §6103(f) must be complied with prior to release of information. For further instructions, see IRM 11.3.4, Congressional Inquiries.
IRC §6104(b) requires IRS personnel to make available for public inspection the information that is required to be furnished to the IRS by IRC §6058 (annual information returns containing information with respect to the qualification, financial condition, and operations of pension, annuity, stock bonus, or profit-sharing plans), together with the names and addresses of such organizations and trusts.
Due to an agreement reached between the IRS and the DOL, public inspection of all categories of Form 5500, Employee Plan Returns, are handled by the DOL. See IRM 188.8.131.52 below, for a description of the returns and instructions for obtaining the returns.
The Freedom of Information Act (FOIA), 5 USC §552, IRC §6104(a)(1)(B), and IRC §6104(b) all make certain documents available to the public. This overlap presents no direct statutory conflict since the disclosure of information or documents as required by IRC §6104 preempts the disclosure requirements of the FOIA.
Treasury Regulation §301.6104 sets forth the IRS’s interpretation of the provisions and procedures for making IRC §6104 information available for public inspection.
The term participant means any employee or former employee of an employer or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan that covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit. See 29 USC §1002 (7).
The term plan participant includes, but is not limited to:
A current plan participant.
Former employees, such as certain retired and terminated employees who have a non-forfeitable right to benefits under the plan.
A beneficiary of a deceased former employee who is receiving benefits or entitled to receive future benefits under the plan.
An administrator, executor, trustee, or trustee of the estate of a deceased participant.
The term authorized representative means the representative of a plan participant designated by the plan participant in a written authorization to inspect material described in IRC §6104(a)(1)(B). The written authorization should specify that the representative is authorized to inspect the material.
The term application for a determination letter includes the documents that the applicant files with respect to the qualification of a pension, profit-sharing, or stock bonus plan under IRC §401(a) or IRC §403(a), and individual retirement accounts and annuities under IRC §408(a), IRC §408(b), and IRC §408(c). This includes only applications for determination letters filed with the IRS after September 2, 1974.
A supporting document is any statement or document submitted in support of an application for a determination letter that is not specifically required by the application form or the IRS.
Generally, material open to public inspection under IRC §6104(a)(1)(B) includes the application for a determination letter filed after September 2, 1974 (if the plan has 26 or more participants), supporting documents, and letters or documents issued by the IRS after that date. However, information with regard to compensation (including deferred compensation) of any individual must be excised.
Documents relating to plans with 25 or fewer participants are available only to plan participants, the plan sponsor, or their authorized representatives.
Letters or documents issued by the IRS that are disclosed under IRC §6104(a)(1)(B)(iv) include, but are not limited to the following:
Determination letters relating to the qualification of a plan, account, or annuity.
Technical advice memoranda relating to the issuance of such determination letters.
Technical advice memoranda relating to the continuing qualification of a plan, account, or annuity previously determined to be qualified or relating to the qualification of a plan, account, or annuity for which no determination letter has been issued.
Letters or documents revoking or modifying any prior favorable determination letter or denying the qualification of a plan, account, or annuity for which no determination letter has been issued.
Determination letters relating to the exemption from tax of a trust or a custodial account described in IRC §401(f).
Opinion letters or advisory letters relating to the acceptability of the form of any master, prototype, or volume submitter letter issued under the pre-approved program.
Generally, an administrative case file will be established for each complete determination letter application received under ERISA. This employee plan file will consist of the application, attached supporting documents, and other materials described in this subsection.
The EP Specialist is responsible for properly arranging the material in the administrative file.
The right side of the administrative file may contain the following documents open to public inspection:
Index of administrative case file, if applicable.
Most recent power of attorney, determination letter, and application form.
Written final correspondence between the IRS and the applicant with respect to the request for a determination and its qualification of the plan.
Written comments and such related correspondence by interested parties such as the Department of Labor and the Pension Benefit Guaranty Corporation.
Amendments on initial qualification.
Plans, group annuity contracts, and trust instruments.
Supplemental data supporting the application.
Miscellaneous materials and correspondence relating to the application, such as specimen copies of individual life insurance contracts and formal announcements to employees.
Form 5446, Public Inspection Record, used to record the instances when members of the public have examined the case file as permitted by the applicable disclosure regulations.
See Exhibit 11.3.10-1, Employee Plan Documents Open for Inspection, for a list of other employee plans documents open for inspection.
The left side of the administrative file may contain the following documents not opened to public inspection under IRC §6104:
Each category of material listed below that includes multiple items should be arranged chronologically.
Form(s) 5464, Case Chronology Record.
Form 5621, Technical Analysis Control Sheet.
A copy of the official report when the IRS makes an investigation regarding the facts as submitted by the applicant or in comments submitted by interested parties.
Work papers prepared by the EP Specialist, including reviewers’ memoranda and responses thereto and any Alert Guidelines Worksheets (or locally developed supplemental worksheets).
Form 5402, Appeals Transmittal And Case Memo, along with any work papers prepared by Appeals.
Examination and deduction referral information.
Application for qualification and related documents for plans that have 25 or fewer participants.
Form 6088, Distributable Benefits from Employee Pension Benefit Plans.
Form 5330, Return of Excise Taxes Related to Employee Benefit Plans.
Other miscellaneous materials not disclosed under disclosure regulations. (These materials include pertinent information from the Pre-ERISA plan file such as the determination letter, worksheets, and application.)
Documents not constituting an application, such as incomplete applications, applications rejected for failure to notify interested parties, or requests for ruling on whether a proposed transaction is a prohibited transaction under IRC §4975.
Specimen documents to include in the plan, trust, and any applicable adoption agreements relating to the pre-approved program for the Master and Prototype or Volume Submitter Plans. These documents are maintained by a Pre-Approved Plan Coordinator in Cincinnati, Ohio.
IRC §6104(a)(1)(C) provides that certain names and compensation shall not be open to public inspection.
The IRS will withhold from public inspection (including inspection by a plan participant or his/her authorized representative) information contained in any application/document or other documents filed by the applicant or issued by the IRS in which the compensation (including deferred compensation) of an individual can be ascertained. The compensation information may be excised.
IRC §6104(a)(1)(D) provides that, upon the request of the organization submitting any supporting papers described in IRC §6104(a)(1)(B), the IRS shall withhold from public inspection any information that it determines relates to any trade secret, patent, process, style of work, or apparatus if the disclosure of such information would adversely affect the organization.
A request to withhold information should be filed as a separate document with the same IRS office where the application is or was filed. It should clearly identify the material desired to be withheld (the document, page, paragraph, and line) and the specific reasons why the information should not be open to public inspection.
IRC §6104(a)(1)(D) also provides that the IRS shall withhold from public inspection any information contained in supporting papers that the IRS determines would adversely affect the national defense.
In the case of a pension, profit-sharing, or stock bonus plan (or an individual retirement arrangement) referred to in IRC §6104(a)(1)(B) with 25 or fewer participants, the application for a determination letter filed after September 2, 1974, supporting documents, and letters or documents issued by the IRS after that date may only be inspected by a plan participant or his/her authorized representative.
Information with regard to compensation (including deferred compensation) of any individual, as shown on Form 5302, must be deleted.
When a plan with 25 or fewer plan participants files an application or annual return that shows that the number of participants has increased to 26 or more, all prior applications, or supporting documents, and other documents received or issued by the IRS after September 2, 1974 will be open to public inspection regardless of the number of plan participants indicated on any prior application.
When a plan with 26 or more plan participants files an application that shows that the number of participants has decreased to 25 or fewer, supporting documents relating to such application, and any other documents received or issued by the IRS after the date of receipt of that application may only be inspected by a plan participant or his/her authorized representative.
The application for a determination letter and supporting documents will be open to inspection by a plan participant or his/her authorized representative whether or not the application is withdrawn by the applicant and whether or not the IRS determines that the plan is qualified.
In dealing with questions from plan participants regarding the status of an application for termination of a plan, the participant may be advised that the application is pending. Upon completion of IRS action, the participant may be advised as to whether or not the application has been approved.
Questions relating to plan benefits of terminated plans should be directed to the plan administrator who is responsible for notifying the participants of their benefits under the plan.
The application for termination of a plan, Form 5310, and the determination letter issued by the IRS is available for inspection by a plan participant or his/her authorized representative.
Any material open to inspection under IRC §6104(a)(1)(B) will be available for public inspection only upon written request to the IRS.
The DOL may establish their own requirements for public access.
Individuals may be advised that many Forms 5500 submitted to the DOL are available on the website at the following: http://www.freeerisa.com .
The request, at a minimum, should contain:
The name, address, Employer Identification Number (EIN) of the organization, and the plan number (if known) being inspected or copied.
The address for notification of the determination as to whether the request will be granted and/or where the copies should be sent.
In the case of a plan of 25 or fewer participants, the request should include written evidence of the requester’s identity and a statement that the requester is a plan participant. An authorized representative should also include the written authorization.
Material requested for inspection should be described in reasonably sufficient detail so that IRS personnel can locate it without the necessity of contacting the requester for further explanation or information.
If a requester desires to inspect the material at a particular field office, it should be stated in the request. If not, it will be assumed that the inspection will take place at the office where the request was sent.
If an organization has more than one application for a determination letter open to public inspection under IRC §6104(a)(1)(B) , only the most recent application and supporting documents will be open for inspection unless the request states otherwise.
If a requester only desires copies, it should be stated in the request.
Almost all requests for copies of, or inspections of, all categories of Form 5500 returns, except Form 5500-EZ, should be sent to the DOL. For any Forms 5500-EZ or 5500 that the IRS has not yet turned over to the DOL, the request should be forwarded to the IRS Ogden Campus. See IRM 184.108.40.206 below, for additional information and addresses.
Requests for copies, or inspections of, Employee Plan Applications and inquiries for IRS determinations, should be sent to the following address:
TE/GE Customer Accounts Services
P.O. Box 2508
Cincinnati, OH 45201
If inspection of the documents is requested, TE/GE Customer Accounts Services should coordinate with the requestor’s local Disclosure Office to arrange for inspection.
The local Disclosure Office will coordinate with the requester and the local Employee Plans Office to arrange a mutually agreeable inspection process. The inspection process must provide that:
Inspection will be allowed only in the presence of IRS personnel and during regular business hours.
Material will be made available at such times as not to interfere with its use by IRS personnel or to discourage inspection by other people.
During the inspection:
Requesters may take notes of the material open for public inspection under IRC §6104(a)(1)(B).
Copies may be made manually or, if the requester provides the equipment, photographically at the place of inspection.
There is no charge for inspection of IRC §6104(a)(1)(B) documents on the IRS’s premises.
There will be a charge based on standard FOIA rates associated with the category of requestor for copies furnished by the IRS, (see IRM 11.3.5, Fees).
Copies provided by the DOL are subject to the DOL fee provisions.
If requested, copies will be certified with the corresponding additional fee, refer to IRM 11.3.6, Seals and Certifications and IRM 11.3.5, Fees.
Responsibility for IRC §6104(a)(1)(B) disclosures is shared with the local Disclosure Office and the Employee Plans personnel involved in the inspection.
Requests for documents relating to the following subject matter should be directed to the Office of Governmental Liaison,Disclosure and Safeguards Headquarters, for handling:
Prototype Individual Retirement Accounts
Employer Sponsored Individual Retirement Accounts or
Non-Bank Trustee Files
The pre-approved program is maintained in Cincinnati, Ohio. Requests for documents relating to this program would include:
Master and Prototype Plans sponsored by banks, insurance companies, trade or professional associations, or regulated investment companies
Master and Prototype Plans or Regional Prototype Plans submitted by mass submitters
Volume Submitter Plans
The address for these requests is as follows:
Internal Revenue Service
P.O. Box 250
Attn: Pre-Approved Plan Coordinator
Cincinnati, OH 45201
The information required to be furnished by IRC §6058, together with the names and addresses of such organizations and trusts shall be made available to the public at such times and in such places as the Secretary of Treasury may prescribe.
Returns in this category include:
Form 5500, Annual Return/Report of Employee Benefit Plan, (with 100 or more participants)
Form 5500-C/R, Return Report of Employee Benefit Plan (with fewer than 100 participants)
Form 5500-EZ, Annual Return of One-Participant Pension Benefit Trust (owners & their spouses)
Form 5500 Schedule A, Insurance Information
Form 5500 Schedule B, Actuarial Information (with respect to defined benefit plan)
Schedule B filed with Form 5500-EZ is not available to the public beginning with return year 1993.
Form 5500 Schedule C, Service Provider Information
Form 5500 Schedule D, DFE (Direct Filing Entity)/Participating Plan Information
Form 5500 Schedule G,Financial Schedules
Form 5500, Schedule H, Financial Information
Form 5500, Schedule I, Financial Information-Small Plan
Form 5500, Schedule P, Annual Return of Fiduciary of Employee Benefit Trust
Form 5500, Schedule R, Retirement Plan Information
Form 5500, Schedule T, Qualified Pension Plan Coverage Information
Pursuant to agreement between the IRS and the DOL, public inspection of all categories of Form 5500 (except Form 5500-EZ, Schedule B that is not open for public inspection) is handled by the DOL.
Fees for Form 5500 series are established in accordance with the DOL policies. Requests for copies of these returns should be sent to the following address:
Public Disclosure, Room N-1513
Employee Benefits Security Administration
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, D.C. 20210
There will be a charge for copies furnished by the IRS in accordance with standard FOIA rates associated with category of requestor. See IRM 11.3.5, Fees.
Forms 5500 filed with respect to employee welfare benefit plans are not governed by IRC §6104. These reports are required by section 104(a)(1) of Title I of ERISA and are open to public inspection under section 106 of Title I. Requests for Forms 5500 should be sent to the DOL address indicated in (4) above.
In accordance with IRC §6103(l)(2) and 26 CFR §301.6103(l)(2), the IRS may disclose certain returns and return information to the DOL or the Pension Benefit Guaranty Corporation (PBGC) for purposes of the administration of Titles I or IV of the Employment Retirement Income Security Act of 1974 (ERISA).
Returns and return information may also be disclosed to these agencies for the purpose of conducting research and studies authorized by ERISA. Instructions regarding such disclosures are described in IRM 220.127.116.11 , Disclosures to the Department of Labor (DOL) and Pension Benefit Guaranty Corporation (PBGC) for Administration of the Employee Retirement Income Security Act (ERISA).
Nothing in this text shall be construed to deny officers and employees of the DOL or the PBGC the right to inspect return information available to the public under IRC §6104.
The Employee Plan Master File (EPMF) is the IRS’s working file of data from applications filed with respect to the qualification or the exemption from tax of a pension, profit-sharing, or stock bonus plan as well as from the Form 5500 series returns these plans file annually.
The input is now mostly taken from the Annual Information Return (public inspection form) thus making more information obtainable by the public and with less scrutiny by disclosure officials.
The general public may request information from the Employee Plans Master File on a reimbursable basis. However, the extracts are limited to only the data elements available to the public.
To obtain an extract of the EPMF, the requester must sign a contract with the IRS and pay a fee of $400.00 plus 2 cents per printed record or $400.00 plus 1.2 cents per tape or CD-ROM record per entity.
Requests from the public, State and local governments, Congress, etc., for information available on the EPMF, should be forwarded to the following address:
Internal Revenue Service
1111 Constitution Avenue, NW
Director, TE/GE Business Systems Planning
Washington, DC 20224
The TE/GE Business Systems Planning Office will comply with the request subject to the provisions of IRC §6104.
In view of the provisions of IRC §6103(a) , any information that the IRS gathers, receives, or develops regarding an employer plan or trust is confidential and may not be disclosed except as authorized by the Internal Revenue Code (IRC).
Any information obtained or developed by the IRS during its examination of a pension plan’s and/or trust’s tax-exempt status is not available for public inspection under IRC §6104.
This information would include such documents as work papers, correspondence, reports, and informants’ letters.
If these documents contain information that should have been filed with the IRS and would have been made available for public inspection if filed, then those specific portions of the documents may be disclosed.
In connection with official duties, it may become necessary for IRS personnel to contact an officer of the employer plan and/or trust, their employees, or other third parties. These officers, employees, or third parties may also contact IRS personnel. The disclosure of information in these situations will generally be governed by IRC §6103(c), IRC §6103(e), IRC §6103(h)(4), or IRC §6103(k)(6).
With the exception of information available to the public under IRC §6104(a)(1)(B) and IRC §6104(b), the disclosure of information concerning employee plans may be governed by other provisions of the IRC. See IRC §6103 or IRC §4424.
The discussions in other sections of IRM 11.3, Disclosure of Official Information, concerning the disclosure of returns and return information, also apply to the treatment of employee plans when outside of the purview of IRC §6104(a)(1)(B) and IRC §6104(b). Consult the Table of Contents of IRM 11.3, Disclosure of Official Information, for a description of the coverage of those sections.
|Document||Title|| Public |
|Form 4461||Application for Approval of Master or Prototype or Volume Submitter Defined Contribution Plan||Yes||IRS|
|Form 4461-A||Application for Approval of Master or Prototype and Regional Prototype Defined Benefit Plan||Yes||IRS|
|Form 4461-B||Application for Approval of Master or Prototype or Volume Submitter Plans||Yes||IRS|
|Form 5300||Application for Determination of Employee Benefit Plan||Yes||IRS|
|Form 5303||Application for Determination for Collectively Bargained Plan||Yes||IRS|
|Form 5306-A||Application for Approval of Prototype Simplified Employee Pension (SEP) or Savings Incentive Match Plan for Employees of Small Employers (Simple IRA Plan)||Yes||IRS|
|Form 5306-SEP||SEP Application for Approval of Prototype of Simplified Employee Pension Plan (SEP)||Yes||IRS|
|Form 5307||Application for Determination for Adopters of Master Prototype or Volume Submitter Plans||Yes||IRS|
|Form 5308||Request for Change in Plan/Trust Year||Yes||IRS|
|Form 5309||Application for Determination of Employee Stock Ownership Plan||Yes||IRS|
|Form 5310||Application Upon Termination for Terminating Plan||Yes||IRS|
|Form 5510-A||Notice of Plan Merger or Consolidation, Spinoff or Transfer of Plan Assets or Liabilities; Notice of Qualified Separate Lines of Business||Yes||IRS|
|Form 5500||Annual Return/Report of Employee Benefit Plan||Yes||DOL|
|Form 5500-EZ||Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan||Yes||IRS|
|Form 5500–C/R||Return Report of Employee Benefit Plan||Yes||DOL|
|Form 5500 Schedule A||Insurance Information||Yes||DOL|
|Form 5500 Schedule B||Actuarial Information||Yes||DOL|
|Form 5500 Schedule C||Service Provider Information||Yes||DOL|
|Form 5500 Schedule D||DFE/Participating Plan Information||Yes||DOL|
|Form 5500 Schedule E||ESOP Annual Information||No||DOL|
|Form 5500 Schedule G||Financial Transaction Schedules||Yes||DOL|
|Form 5500 Schedule H||Financial Information||Yes||DOL|
|Form 5500 Schedule I||Financial Information-Small Plan||Yes||DOL|
|Form 5500 Schedule MB||Actuarial Information||Yes||DOL|
|Form 5500 Schedule P||Annual Return of Fiduciary of Employee Benefit Trust||Yes||DOL|
|Form 5500 Schedule R||Retirement Plan Information||Yes||DOL|
|Form 5500 Schedule SB||Actuarial Information||Yes||DOL|
|Form 5500 Schedule SSA||Annual Registration Statement Identifying Separated Participants with Deferred Vested Benefits||No||DOL|
|Form 5500 Schedule T||Qualified Pension Plan Coverage Information||Yes||DOL|
|Form 6406||Short Form Application for Determination for Amendment of Employee Benefit Plan||Yes||IRS|