7.1.1 Employee Plans

Manual Transmittal

September 25, 2018

Purpose

(1) This transmits revised IRM 7.1.1, TE/GE Administrative Procedures and Programs, Employee Plans.

Material Changes

(1) Updated IRM 7.1.1 throughout to make editorial changes, revise section numbers, and reflect current versions of annual revenue procedures and IRM procedures.

Effect on Other Documents

This supersedes IRM 7.1.1, dated August 11, 2017

Audience

Tax Exempt and Government Entities
Employee Plans

Effective Date

(09-25-2018)

Catherine L. Jones
Acting Director, Employee Plans
Tax Exempt and Government Entities Division

Program Scope and Objectives

  1. Purpose: This manual describes the administrative procedures governing rulings and agreements for employee plan matters under the jurisdiction of the Director, Employee Plans (EP) of the Office of the Commissioner, Tax Exempt and Government Entities division (TE/GE).

  2. Audience: The administrative guidelines in this manual apply to EP employees in EP Technical, Determinations, Voluntary Compliance and Examinations.

  3. Policy Owner: Director, Employee Plans

  4. Program Owner: Employee Plans

  5. Program Goals: The goal of EP is to provide taxpayers top quality service by helping them understand and comply with applicable tax laws, and to protect the public interest by applying the tax law with integrity and fairness to all.

    Note:

    EP focuses on encouraging taxpayers (administrators and employers) to voluntarily comply with the income tax laws. To protect plan participants and retirement savings, many of the programs under the jurisdiction of the Director, Employee Plans, have the goal of avoiding plan disqualification.

Background

  1. A plan is qualified if it meets the requirements of Internal Revenue Code section 401(a) in form and operation. A qualified plan is entitled to favorable tax treatment.

  2. To help taxpayers understand the applicable tax laws and ensure that their plans are in compliance, EP issues certain letter rulings, determination letters, opinion letters, advisory letters, and approval letters.

  3. EP enters into compliance statements and closing agreements with plan sponsors to resolve failures to comply with the plan qualification requirements, avoiding plan disqualification.

  4. EP provides technical and actuarial support to IRS employees through the Knowledge Networks (K-Nets) and responses to requests for actuarial assistance.

EP Rulings and Agreements Overview

  1. This manual contains an overview of the administrative procedures governing EP Rulings and Agreements. EP Rulings and Agreements consists of EP Technical, Voluntary Compliance, and Determinations. It covers the following topics:

    1. IRM 7.1.1.1, Program Scope and Objectives, gives an overview of the EP Rulings and Agreements programs.

    2. IRM 7.1.1.2, Jurisdiction of EP Technical, Examinations and Determinations, defines Letter Rulings, Determination Letters, Opinion Letters, Compliance Statements, Closing Agreements, Advisory Letters, Oral Advice and Nonbank Trustee Approval Letters, and lists the applicable jurisdictions for these and other EP programs.

    3. IRM 7.1.1.3, Assistance to Determinations, Voluntary Compliance, and Examinations, lists procedures for submitting cases for technical advice, requesting technical assistance and issuing memoranda providing technical or procedural guidance.

Authority

  1. Delegation Order 7-1a states that the authority to issue favorable determination letters on the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans 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) is delegated to the Director, Employee Plans and may by redelegated to the Director, EP Rulings and Agreements. See IRM 1.2.46.2.1(1) and IRM 1.2.46.1(2).

  2. Delegation Order 7-1d states that the authority to allow a plan to be amended after the expiration of its remedial amendment period described in IRC 401(b), provided that certain conditions are met, is delegated to the Director, EP Rulings and Agreements. See IRM 1.2.46.2.4(1) and IRM 1.2.46.2.4(2).

  3. Delegation Order 7-5 states that the authority to waive, in accordance with IRC 418B(f), any accumulated funding deficiency under Code section 418B, which exceeds $100,000, but does not exceed $1,000,000, exclusive of any amount with respect to which a waiver was requested for a prior plan year or years, is delegated to the Managers in EP Technical. See IRM 1.2.46.6(14) and IRM 1.2.46.6(15).

  4. Delegation Order 7-7 states that the authority to waive all or part of the excise tax imposed under IRC 4971(f) with respect to liquidity shortfalls within the meaning of IRC 412(m)(5)(E) is delegated to the Director, Employee Plans. See IRM 1.2.46.8(5).

  5. Delegation Order 7-9 states that the authority to determine that a plan amendment is reasonable and provides for only de minimis increases in the liabilities of the plan in accordance with: IRC 412(c)(7)(B)(i) and section 302(c)(7)(B)(i) of the Employee Retirement Income Security Act of 1974, as amended, (ERISA), IRC 401(a)(33)(B)(ii), and section 204(i)(2)(A) of ERISA is delegated to the Managers in EP Technical. See IRM 1.2.46.10(2) and IRM 1.2.46.10(3).

  6. Delegation Order 7-10 states that the authority to determine that the period of years required to amortize any unfunded liability of a plan may be extended, in accordance with IRC 431(d) and section 304(d) of ERISA, is delegated to the Managers in EP Technical. See IRM 1.2.46.11(2) and IRM 1.2.46.11(3).

  7. Delegation Order 7-12 states that administration of the Voluntary Correction Program is delegated to the Manager, Employee Plans Voluntary Compliance, and the authority to approve compliance statements under the Voluntary Correction Program is delegated to EP Voluntary Compliance Group Managers and EP Technical Group Managers. See IRM 1.2.46.13(2), IRM 1.2.46.13(3), IRM 1.2.46.13(5) and IRM 1.2.46.13(6).

  8. Delegation Order 8-3 states that the authority to enter into and approve a written closing agreement with any person relating to their federal tax liability is delegated to the Director, Employee Plans. See IRM 1.2.47.4(5).

  9. Delegation Order 30-3 states that the authority to grant reasonable extensions of time to make certain elections pursuant to section 301.9100-1 of the Procedure and Administration Regulations is delegated to the Director, Employee Plans. See IRM 1.2.53.4.

  10. A complete list of delegation orders governing Employee Plans Rulings and Agreements can be found on IRS.gov athttps://www.irs.gov/privacy-disclosure/delegation-orders-and-policy-statements-by-process.

Administrative Procedures

  1. Administrative procedures are generally listed in revenue procedures. Revenue procedures are published in the Internal Revenue Bulletin (IRB), which is published weekly.

  2. General - Rev. Proc. 2018-4 includes the procedures for requesting letter rulings, determination letters and opinion letters from Employee Plans Rulings and Agreements. It also includes the user fees for such requests. The revenue procedure is updated annually.

  3. Determination letters -Rev Proc. 2016-37, as modified by Rev. Proc. 2017-41, provides the circumstances in which a plan sponsor may submit a determination letter application to Employee Plans and eliminates, as of January 1, 2017, the five-year remedial amendment cycle system for individually designed plans. It also describes a system of remedial amendment cycles that applies to qualified pre-approved (master and prototype (M&P) and volume submitter (VS)) plans and the deadlines to submit applications for opinion and advisory letters.

  4. Pre-approved plans - Rev. Proc. 2015-36, as modified by Rev. Proc. 2016-37, Rev. Proc. 2017-41 and Rev. Proc. 2018-21, covers procedures for issuing opinion and advisory letters for defined contribution and defined benefit plans under IRC 401, IRC 403(a) and IRC 4975(e)(7). See also Rev. Proc. 2018-4 for updated submission guidelines related to the issuance of opinion and advisory letters.

  5. Pre-approved 403(b) plans - Rev. Proc. 2013-22 covers procedures for issuing opinion and advisory letters for IRC 403(b) prototype and volume submitter plans. See also Rev. Proc. 2014-28 and Rev. Proc. 2017-18 for modifications to the IRC 403(b) prototype and volume submitter program.

  6. EPCRS - A coordinated system of correction programs, which is referred to as the Employee Plans Compliance Resolution System, is set forth in Rev. Proc. 2016-51.

  7. IRAs - The procedures for obtaining opinion letters for prototype trusts, custodial accounts or annuities under IRC 408(a), IRC 408(b), IRC 408 (k), IRC 408(p) or IRC 408A, are contained in Rev. Proc. 87–50, Rev. Proc. 91–44, Rev. Proc. 92–38, Rev. Proc. 97–29, Rev. Proc. 98–59, Rev. Proc. 2002–10, and Rev. Proc. 2010–48, as modified by Appendix A of Rev. Proc. 2018-4.

  8. Complete list - Exhibit 7.1.1-1 lists the major Employee Plans revenue procedures currently in effect.

  9. In addition to the published guidance listed here and in Exhibit 7.1.1-1, information and procedures for EP specialists are provided in other sections of the Internal Revenue Manual.

    Example:

    The EP Audit Closing Agreement Program (Audit CAP), described in Rev. Proc. 2016-51, is also described in IRM 7.2.2, TE/GE Closing Agreements, Employee Plans Compliance Resolution System (EPCRS).

    Example:

    The procedures for the K-Nets are described in IRM 1.4.7, Resource Guide for Managers, TE/GE Knowledge Network (K-Net) Administration.

User Fees

  1. The Revenue Act of 1987, P. L. 100–203, Act Section 10511, requires taxpayers to pay user fees for rulings, opinion letters, determination letters, compliance statements, and similar requests. Some exceptions apply. See Rev. Proc. 2018-4 and IRM 7.11.1.10, User Fee Requirements.

Responsibilities

  1. The Director, Employee Plans (EP), supervises and is responsible for the activities of:

    • EP Rulings and Agreements

    • EP Examinations

    • EP Program Management Staff

  2. The Director, EP Rulings and Agreements, supervises and is responsible for the activities of:

    • EP Determinations

    • EP Technical

    • Voluntary Compliance Program

  3. The Manager, Voluntary Compliance Program, supervises and is responsible for the group managers and employees in Voluntary Compliance and Quality Assurance.

  4. The Area Managers (1 & 2), EP Determinations, supervise and are responsible for the group managers and employees in EP Determinations.

  5. The Manager, EP Technical, supervises and is responsible for the group managers and employees in EP Technical.

Terms and Definitions

  1. This table lists commonly used terms and provides their definitions.

    Term Definition
    Code Internal Revenue Code of 1986, as amended
    EP Employee Plans
    EPCRS Employee Plans Compliance Resolution System
    K-NET Knowledge Network
    NBT Nonbank Trustee or Custodian
    TE/GE Office of the Commissioner, Tax Exempt and Government Entities Division
    VCP Voluntary Correction Program

Jurisdiction of EP Technical, Examinations, Determinations and Voluntary Compliance

  1. The programs administered under the jurisdiction of the Director, Employee Plans, are described in Rev. Proc. 2018-4, specifically with regard to the issuance of letter rulings, determination letters and closing agreements. A listing of the specific programs and the applicable EP functions is as follows:

    If the plan sponsor or individual taxpayer requests a... Then this office rules on it...
    Letter Ruling Technical
    Opinion Letter Determinations and Technical
    Audit CAP Closing Agreement Determinations and Examinations
    Determination Letter Determinations
    VCP Compliance Statement Voluntary Compliance
    VCP Closing Agreement Voluntary Compliance
    Advisory Letter Determinations and Technical
    Nonbank Trustee Approval Letter Technical
  2. Section 31 of Rev. Proc. 2018-4 lists the mailing addresses for requesting letter rulings, determination letters, etc.

Letter Rulings

  1. A "letter ruling" is a written statement issued to a taxpayer that interprets and applies the tax laws or nontax laws applicable to employee benefit plans to a specific set of facts.

    Note:

    Letter rulings issued by Technical are delegated from the Director, Employee Plans, through the Director, EP Ruling and Agreements, to the Manager, EP Technical, and the managers of the individual technical groups.

  2. The IRS can modify or revoke a letter ruling found to be in error or not in accord with the IRS’s current views. The retroactive effect of the modification or revocation may be limited under the discretionary authority granted by IRC 7805(b).

Determination Letters

  1. A "determination letter" is a written statement issued by the Director, EP Rulings and Agreements, in the Office of the Commissioner, Tax Exempt and Government Entities Division, on an individual’s or organization’s written inquiry that applies to the particular facts and previously announced principles and precedents.

    1. We issue a determination letter only when we can make a determination based on clearly established rules as set forth in the statute, Treasury Decision or regulation, or in a revenue ruling or other guidance published in the IRB.

    2. When we cannot make a determination, for example, when the question involves a novel issue or the matter is excluded from the jurisdiction of EP Determinations, we will not issue a determination letter.

  2. The office of the Director, EP Rulings and Agreements, issues determination letters on retirement plans’ qualification under IRC 401, IRC 403(a), IRC 409 and IRC 4975(e)(7), and the status for the exemption of any related trusts or custodial accounts under IRC 501(a). IRM 7.1.1.3 (1).

  3. Determination letters for individually designed plans are issued solely in the following circumstances:

    1. Initial qualification

    2. Termination

    3. Certain other circumstances as set forth in guidance. See Section 11 of Rev. Proc. 2018-4.

Opinion Letters

  1. An "opinion letter" is a written statement issued by the Director, EP Rulings and Agreements, in the Office of the Commissioner, Tax Exempt and Government Entities Division, as to:

    1. The qualification in form of a plan under IRC 401, IRC 403(a), or both IRC 401 and IRC 4975(e)(7).

    2. The acceptability under IRC 403(b) of the form of a prototype plan or volume submitter plan.

    3. The satisfaction in form of a prototype trust, custodial account or annuity with the requirements for individual retirement arrangements (IRAs) under IRC 408(a) and (b), simplified employee pension plans (SEPs) under IRC 408(k), savings incentive match plans for employees (SIMPLES) under IRC 408(p), and Roth IRAs under IRC 408A.

  2. Opinion letters under IRC 401 are issued to defined benefit plans submitted under the procedures of Rev. Proc. 2015-36. Opinion letters under IRC 401 are issued to defined contribution plans submitted under the procedures described in Rev. Proc. 2017-41.

  3. Rev. Proc. 2017-41 combines the master and prototype (M&P) and volume submitter (VS) programs under IRC 401 into a new Opinion Letter program. It also expands the types of plans eligible for pre-approved status and provides greater flexibility in the design of pre-approved plans

  4. Section 6.03 of Rev. Proc. 2017-41 enumerates instances in which opinion letters will not be issued.

Terms
  1. A "master plan" is a form of plan defined in section 4.01 of Rev. Proc. 2017-41 with a related form of trust acting as the funding medium for the plans of all adopting employers.

  2. A "Pre-approved Plan” is a plan that is made available by a Provider for adoption by employers. The term includes both Standardized and Nonstandardized Plans. See Section 4.07 of Rev. Proc. 2017-41.

  3. The terms “Nonstandardized Plan, “Standardized Plan,” “Mass Submitter,” and “Provider” are defined in Section 4 of Rev. Proc. 2017-41.

  4. A "prototype plan" under IRC 403(b) is defined in section 5.01 of Rev. Proc. 2013-22.

  5. Additional terms related to the pre-approved program for plans under IRC 403(b) are found in sections 6 and 7 of Rev. Proc. 2013-22.

Compliance Statements

  1. A "compliance statement" is a binding written agreement between EP Rulings and Agreements and, generally, the plan sponsor with respect to certain failures of the retirement plan to meet the applicable qualification requirements of IRC 401(a). See Rev. Proc. 2016-51 and IRM 7.2.2, TE/GE Closing Agreements, Employee Plans Compliance Resolution System (EPCRS).

Closing Agreements

  1. A "closing agreement" is a final agreement between the IRS and a taxpayer on a specific issue or liability pursuant to IRC 7121. See IRM 7.2.1, TE/GE Closing Agreements, Closing Agreements Originating in EP Technical and IRM 7.2.2, TE/GE Closing Agreements, Employee Plans Compliance Resolution System (EPCRS).

Advisory Letters

  1. An "advisory letter" is a letter issued under the volume submitter program on a specimen plan. For more information on this program, see:

    • Rev. Proc. 2015-36, sections 13 through 18 for IRC 401(a) defined benefit plans.

    • Rev. Proc. 2013-22, (as modified by Rev. Proc. 2014-28 and clarified by Rev. Proc. 2017-18) for IRC 403(b) plans.

Oral Advice

  1. Employee Plans employees do not orally issue rulings or determinations, nor does EP issue letter rulings or determination letters in response to oral requests from taxpayers. EP employees generally will discuss with taxpayers or their representatives about EP jurisdiction to rule on particular issues and the procedural requirements for submitting requests for letter rulings or determination letters.

  2. In the discretion of EP, its employees may also discuss substantive issues with taxpayers or their representatives. Oral advice cannot be relied on as a basis for obtaining retroactive relief under the provisions of Code section 7805(b). See section 3.06 of Rev. Proc. 2018-4.

  3. Taxpayers may call the centralized customer service unit at (877) 829-5500 (toll-free number) for assistance with specific questions, basic information about forms, or the status of a pending application. See IRM 21.1, Customer Account Services, Accounts Management & Compliance Services Operations, for additional information.

Nonbank Trustee Approval Letters

  1. The IRS issues approval letters (assuming the requirements of 26 CFR 1.408-2(e)(1) through 26 CFR 1.408-2(e)(6) are met) for entities to act as a nonbank trustee or custodian ( NBT) for:

    • Qualified plans under IRC 401(a)

    • IRAs under IRC 408, Roth IRAs under IRC 408A and Coverdell education savings accounts under IRC 530

    • Archer medical savings accounts established under IRC 220

    • Health savings account established under IRC 223

    • Custodial accounts described under IRC 403(b)(7)

    • Eligible deferred compensation plans described in IRC 457(b)

  2. See IRM 4.72.18, Employee Plans Technical Guidelines, Nonbank Trustee Investigation Procedures, for detailed procedures involving this program.

  3. Approval to act as an NBT is within the jurisdiction of the Director, Employee Plans and EP Technical.

  4. Approved NBTs are investigated for continued compliance by the office of the Director, EP Examinations which reports its findings to the Director, Employee Plans.

Assistance to EP Examinations and EP Rulings and Agreements

  1. The Office of Associate Chief Counsel (CC TEGE) and the Office of Division Counsel (TEGEDC) provide technical and legal support to EP Examinations and EP Rulings and Agreements. The support may be written or verbal. Written advice may be presented as technical advice, technical assistance or other memoranda, depending on the nature of the matter. The administrative authority for requesting technical advice is found in Rev. Proc. 2018-2.

    1. EP Rulings and Agreements and EP Examinations may request (or may be required to request) assistance on a technical issue raised during a private letter ruling request, determination letter request, an examination, or a request under VCP. Assistance may be provided in the form of technical advice or technical assistance.

    2. Advice may be provided due to the passage of new legislation for which there is no published precedent. Support may be provided in the form of a memorandum to an EP Examinations Area manager, EP Technical manager, or EP Determinations Area manager.

Technical Advice

  1. "Technical advice" means advice or guidance in the form of a memorandum furnished by CC TEGE upon the request of EP Examinations, EP Rulings and Agreements or an Appeals Area Director, in response to a technical or procedural question that develops during a proceeding on the interpretation and proper application of tax law, tax treaties, regulations, revenue rulings, notices or other precedents published by IRS to a specific set of facts. See Rev. Proc. 2018-2 for additional guidance on requesting technical advice. Also, see IRM 7.11.12, Employee Plans Determinations Letter Program, Preparing Technical Advice Requests, and IRM 4.71.13, Employee Plans Examination of Returns, Technical Assistance and Technical Advice Requests.

Technical Assistance

  1. Technical assistance covers matters of general technical application furnished to EP Rulings and Agreements, EP Examinations or an Appeals Office where the issues are not raised in connection with the examination of a taxpayer’s return or a request for a determination letter, or the issues do not relate to a specific case under consideration by EP Rulings and Agreements, EP Examinations or an Appeals Office.

  2. Where appropriate, technical assistance may be issued by EP Technical to the relevant requesting office.

  3. Technical assistance is also provided to IRS employees through the Knowledge Networks (K-Nets). See IRM 1.4.7, Resource Guide for Managers, TE/GE Knowledge Network (K-Net) Administration.

Memoranda to EP Determinations, EP Examinations or Appeals

  1. Memoranda containing either technical or procedural guidance may be issued to EP Technical, EP Determinations, EP Examinations, or an Appeals Area Director. The guidance may be provided on matters of policy, new legislation or IRS positions. Where appropriate, the instructions contained in the memoranda are incorporated into the IRMs.

List of Major Employee Plans Revenue Procedures Currently in Effect

Employee Plans Program Relevant Revenue Procedure(s)
Private letter rulings, determination letters, and user fees Rev. Proc. 2018-4, 2018-1 IRB 146
Determination letter applications Rev. Proc. 2016-37, 2016-29 IRB 136
Employee Plans Compliance Resolution System (EPCRS) Rev. Proc. 2016-51, 2016-42 IRB 466
IRC 403(b) opinion letter program Rev. Proc. 2013-22, 2013-18 IRB 985; Rev. Proc. 2014-28, 2014-16 IRB 944
Pre-approved program for qualified plans Rev. Proc. 2015-36, 2015-27 IRB 20; Rev. Proc. 2017-41, 2017-29 IRB 92; Rev. Proc. 2018-21, 2018-14 IRB 467
Opinion letter program for IRAs, SEPs, and SIMPLEs Rev. Proc. 87-50, 1987-2 C.B. 647; Rev. Proc. 91-44, 1991-2 C.B. 73; Rev. Proc. 97-29, 1997-1 C.B. 698; Rev. Proc. 98-59, 1998-2 C.B. 727; Rev. Proc. 2002-10, 2002-4 IRB 401; Rev. Proc. 2010-48, 2010-50 IRB 828
Nonbank trustee approval applications Rev. Proc. 2018-4, 2018-1 IRB 146
Requests for waivers of 60-day rollover requirement Rev. Proc. 2003-16, 2003-1 C.B. 359; Rev. Proc. 2016-47, 2016-37 IRB 346
Changes in funding methods and actuarial assumptions Rev. Proc. 2017-57, 2017-44 IRB 474
Requests for approval of use of plan-specific substitute mortality tables Rev. Proc. 2017-55, 2017-43 IRB 373
Requests for approval of an extension of an amortization table for multiemployer pension plans Rev. Proc. 2010-52, 2010-52 IRB 927
Waivers of IRC 4971(b) tax Rev. Proc. 2000-17, 2000-1 C.B. 766
Changes in plan year Rev. Proc. 87-27, 1987-1 C.B. 769
Automatic approval of changes in funding methods Rev. Proc. 2000-40, 2000-2 C.B. 357 Rev. Proc. 2017-56, 2017-44 IRB 465