For more information on governmental plans and determination letters, see:
These frequently asked questions and answers provide general information and should not be cited as legal authority.
1. What plan documentation should a governmental plan submit when applying for a determination letter?
Generally, the IRS requires a plan sponsor to submit a plan in restated form when applying for a determination letter.
The IRS recognizes that governmental plans may not have a single cohesive plan document. The IRS is willing to work with a plan sponsor whose plan document consists of documents from various sources and who is unable to submit a restated plan, provided the sponsor can submit selected material in an organized manner so that IRS reviewers can readily determine the applicable plan language.
A governmental plan sponsor may submit either:
- a copy of the plan in a restated format, even if the plan has not been adopted, along with copies of timely adopted amendments; or
- a summary of the plan and all amendments, and verification that the documents were timely adopted.
The sponsor of a governmental plan can also submit an application that does not include a restated plan or amendment summary. For example, the sponsor could submit portions of a statute applicable to the governmental plan containing general plan provisions along with other documents binding on the plan and containing additional plan language including, if necessary, provisions of regulations, ordinances and other state rules or policies applicable to the plan under state law.
If amendments are summarized but not submitted, the IRS may, in its discretion, request the applicant to submit all or some of the amendments for verification purposes during the IRS’s review of the determination letter request. The IRS may determine, based on the contents and sufficiency of the application, the extent of the plan document review (see Revenue Procedure 2019-4, revised annually). A failure to disclose a material fact or misrepresentation of a material fact on the application may adversely affect the plan sponsor's reliance on a favorable determination letter. Such failure could include the failure to submit an accurate or complete summary of plan amendments.
2. Will the IRS allow a governmental plan that has never received a determination letter to apply for one now, without submitting documentation for all years of the plan’s existence?
Yes. The IRS may, as part of the application process, request verification of prior plan documentation, as the review will take into account all Cumulative Lists issued prior to 2016.
3. What if the plan has not been timely amended and has never received a determination letter or received one a long time ago?
If a plan has been timely amended, it can submit a request for a determination letter without proof of all amendments since its inception; see Q&A 2 above. However, if the plan has not been timely amended, the plan sponsor should correct the error under the Voluntary Correction Program.
4. What cycle applies to a volume submitter governmental plan?
A volume submitter governmental plan is under the 6-year cycle applicable to pre-approved plans.
5. Will the IRS require a redlined plan document?
No. The IRS will not require redlining.
6. Will the IRS require submissions every year to cover all pension law changes passed by state legislatures?
No. Amendments or a summary of the amendments, as described in Q&A 1 above, should only be submitted to the IRS when an application is made for a determination letter. Revenue Procedure 2016-37 only permits individually designed plans to submit a determination letter application for:
- initial plan qualification;
- qualification on plan termination; and
- other circumstances, to be determined annually (allowable situations would be announced in the Internal Revenue Bulletin)
7. Are a determination letter and a private letter ruling redundant?
No. A determination letter provides reliance on the form of the plan. A private letter ruling interprets and applies the tax laws to a taxpayer’s specific set of facts, but does not generally address the terms of a plan.
8. When do governmental plans need to comply with the final regulations regarding permissible normal retirement ages?
The IRS and Dept. of Treasury intend to amend the final regulations to change the effective date for governmental plans to annuity starting dates that occur in plan years beginning on or after the later of:
- January 1, 2017, or
- the close of the first regular legislative session of the legislative body with the authority to amend the plan that begins on or after the date that is 3 months after the final regulations are published in the Federal Register (see Notice 2012-29 and and Notice of Proposed Rulemaking REG-147310-12)
Governmental plan sponsors may rely on Notice 2012-29 with respect to the extension until such time as the final regulations are so amended.