Pre-approved plan providers can obtain IRS approval of whether the form of a 403(b) plan meets the requirements of Internal Revenue Code Section 403(b) (see Revenue Procedure 2021-37). An employer that adopts a sponsor's pre-approved 403(b) plan generally has assurance that its plan document complies with IRC Section 403(b). When to apply The submission period for 403(b) pre-approved plan providers to submit applications for an Opinion Letter for Cycle 2 begins on May 2, 2022, and ends on May 1, 2023. Providers may apply for an Opinion Letter for Cycle 2 after this period, but these filings generally will be considered “off-cycle.” See Rev. Proc. 2021-37, section 12 regarding IRS review of off-cycle filings. How to apply Your 403(b) pre-approved plan application must include all documents required in Rev. Proc. 2021-37 and may include additional documents, as appropriate. See Rev. Proc 2021-37, sections 10 and 11. Application Steps Complete your pre-approved plan application package Pay the user fee (by check) provided in Rev. Proc. 2022-4, Appendix A.05 (updated annually) that would apply as if the 403(b) plan were applying as a qualified plan under Rev. Proc. 2017-41. Mail your application package to: Internal Revenue Service P.O. Box 2508 Cincinnati, OH 45201 Attn: Pre-Approved Plans Coordinator Room 6-403, Group 7521 Any request shipped by Express Mail or a delivery service should be sent to: Internal Revenue Service 550 Main Street Cincinnati, OH 45202 Attn: Pre-approved Plans Coordinator Room 6-403, Group 7521 Wait for your application to be assigned to an IRS employee for review Respond to any inquiries from the IRS employee assigned to your case Interim notification – You may receive an interim notification stating that the plan appears to be compliant with the applicable 403(b) requirements. This notification is not an official opinion letter and it provides no 403(b) reliance. See Rev. Proc. 2021-37, section 13.03 Receive your official IRS opinion letter once the plan has been approved Required items Form 4461-C, Application for Approval of Standardized or Nonstandardized 403(b) Pre-Approved PlansPDF Paper copy of Form 8717-A, User Fee for Employee Plan Opinion Letter RequestPDF A check or money order payable to the “United States Treasury” for the required user fee. A copy of the plan document and associated adoption agreement, if applicable. Certification Regarding Interim Amendments - The application must contain a certification signed by the Pre-approved Plan Provider that the applicant has made all required amendments to enable the plan to continue to satisfy the IRC 403(b) requirements and communicated them to all adopting employers. The IRS requests that the application and copies of documents be submitted by thumb or flash drive instead of being submitted as paper files. However, to pay the user fee, a provider must continue to submit a paper check and a paper Form 8717-A, User Fee for Employee Plan Opinion Letter RequestPDF. If you have more than one adoption agreement that may be used with your basic plan document, each basic plan document and adoption agreement pair is considered one separate 403(b) pre-approved plan and requires a separate application. Retirement income accounts cannot be included in the same plan as non-retirement income accounts and, therefore, require their own separate plan document. Retirement income accounts are defined contribution programs established or maintained by a church, or a convention or association of churches, including an organization described in IRC Section 414(e)(3)(A), to provide benefits under IRC Section 403(b) for its employees (including an employee described in IRC Section 414(e)(3)(B)) or their beneficiaries as described in IRC Section 403(b)(9). Copies of investment arrangements should not be submitted. The IRS will not review, and the Opinion Letter will not cover, any provisions included in investment arrangements. Exception: For a word-for-word identical plan, the Mass Submitter must submit the completed Form 4461-CPDF that includes a declaration by the Mass Submitter under penalties of perjury that the provider will offer a plan that is word-for-word identical to a plan of the Mass Submitter. Additionally, a copy of the plan doesn’t need to be submitted. Certification Regarding Interim Amendments – Sample language Under penalties of perjury, I hereby certify to the best of my knowledge and belief that all necessary interim amendments (and initial amendments, as described in Revenue Procedure 2021-37, section 4.11, if applicable) on the applicable Cumulative List have been made a part of my 403(b) Pre-Approved Plans (formerly known as prototype plans and volume submitter plans) timely and communicated timely to all my adopting employers. Type or print name of Pre-Approved Plan Provider Signed (by person authorized to sign for Pre-Approved Plan Provider) Type or print name of person authorized to sign Date the certification was signed Mandatory plan provisions Rev. Proc. 2021-37, section 5 describes the provisions required in all 403(b) pre-approved plans. The plan must comply with all relevant IRC Section 403(b) requirements including those described in Notice 2022-8PDF which contains the 2022 Cumulative List of Changes in Section 403(b) Requirements for Section 403(b) Pre-approved Plans. To draft 403(b) pre-approved plans, plan providers can also use the Section 403(b) Pre-Approved Plans Listing of Required Modifications and Information Package (LRM) Revised April 2022. Additional items Form 2848, Power of Attorney and Declaration of Representative – if you want an attorney or another qualified individual to represent you. Form 8821, Tax Information Authorization – if you want the IRS to mail copies to or correspond about your application with another person. Adopting employers Adopting employers of pre-approved plans must adopt the plan within the two-year adoption period announced by IRS. Generally, adopting employers are not permitted to apply for their own determination letters. They can rely on the 403(b) pre-approved plan’s opinion letter. However, if an adopting employer makes non-extensive changes to a non-standardized 403(b) pre-approved plan, it may file for a determination letter using the Form 5307 to obtain reliance under IRC 403(b) for those changes. See Rev. Proc. 2021-37 section 8 regarding employer reliance on an opinion letter issued to a 403(b) pre-approved plan and section 8.04 for a discussion on an employer obtaining a determination letter using the Form 5307. Additional resources 403(b) Pre-approved plans Determination, Opinion and Advisory Letters Q&As for 2nd Cycle Preapproved 403(b) Plan Providers
