If you are an eligible employer, you can satisfy the 403(b) written plan requirement by adopting a 403(b) pre-approved plan instead of an individually designed plan. All 403(b) plans (except church plans that don’t contain any retirement income accounts) must satisfy the written plan requirement.
If you adopt a 403(b) pre-approved plan, it’s important that you operate the plan according to its written terms to maintain its tax-qualified status.
You can adopt a 403(b) pre-approved plan after the pre-approved sponsor receives a favorable:
- opinion letter for a word-for-word identical adopter or minor modifier of a 403(b) prototype plan, or
- advisory letter for a word-for-word identical adopter or minor modifier of a 403(b) volume submitter plan.
To be a word-for-word identical adopter, the entity must sponsor a plan that is identical, on a word-for-word basis, to either a basic plan document or a specimen plan of a mass submitter.
To be a minor modifier, the entity must sponsor a plan that contains only minor changes from a basic plan document of a mass submitter, and the changes do not require the IRS to do an in-depth technical review to issue an opinion letter to the plan.
The IRS will begin accepting applications from 403(b) pre-approved plan sponsors on June 28, 2013, and will issue favorable letters to plans that meet the requirements of Internal Revenue Code Section 403(b) and the 403(b) final regulations.
Why you may want to adopt a 403(b) pre-approved plan
Typically, the cost for a pre-approved plan is less than for an individually designed plan.
You generally have peace of mind that the form of the pre-approved plan meets the legal requirements. However, you should review the favorable opinion or advisory letter for complete details on the scope of the plan’s letter.
In addition to having all legally required provisions, a pre-approved plan may offer optional plan provisions that you can choose, usually by selecting them in the adoption agreement.
Exceptions - You can’t rely on a 403(b) pre-approved plan’s favorable opinion or advisory letter for whether the plan’s:
- investment agreements meet all legal requirements even if these are incorporated into the plan by reference. These investment agreements include:
- annuity contracts,
- custodial accounts, or
- other ancillary documents.
- form meets all legal requirements if you cause it to become an individually designed plan by changing the 403(b) pre-approved plan document. Please note that the IRS does not intend to establish a determination letter program for individually designed 403(b) plans at this time.
- You also can’t rely on a 403(b) pre-approved plan’s favorable opinion or advisory letter for whether the plan is subject to, or satisfies, the requirements of ERISA.
Law changes may require you to amend your 403(b) plan by certain deadlines so your plan may continue meeting tax qualification requirements. If an update is necessary, the pre-approved plan sponsor must amend the plan and notify you of the amendment, or updated plan document, and your required signature, if applicable.
Your 403(b) pre-approved plan sponsor may offer you additional support with plan administration. Make sure you carefully review and select any offered service agreement options.