User Fees for Employee Plans Determination, Opinion and Advisory Letters

 

Requesting a determination letter usually requires payment of a user fee. The user fees are listed in Revenue Procedure 2020-4.

User Fee Exemption - Is Your Plan Eligible?

An employer with 100 or fewer employees may be eligible for an exemption from the determination letter user fee if it meets certain conditions (see Notice 2002-1 PDF, amplified by Notice 2003-49 PDF, and Notice 2017-1 PDF).


When was the plan first in existence?

To be eligible for the exemption, you must file your determination letter application before the later of the:

  • fifth plan year the plan is in existence; or
  • end of any remedial amendment period for the plan that begins in its first five plan years. (IRC Section 7528)

Note: If the plan was established because of a plan spin-off or merger, then the plan will be treated as in existence on the first day the plan from which it was spun-off was in effect, or the earliest date any of the merged plans was in effect.

Notice 2017-1 PDF treats an eligible employer's determination letter application as having been filed by the last day of the plan's remedial amendment period beginning within the first five plan years if:

  • the application is filed after December 31, 2016, and
  • the plan was first in effect no earlier than January 1 of the tenth calendar year before the year in which the application filing year begins ("the ten-year rule").

Is the employer an "eligible employer?

To qualify for the exemption, an employer must:

  • Have 100 or fewer employees receiving at least $5,000 in compensation for the calendar year immediately preceding the one in which the determination letter request is filed.

     

  • Treat all members of a controlled group, partnership or affiliated service group as a single employer and consider leased employees as employees when figuring total employees.

Note: If the plan is maintained by more than one employer, then each of those employers must be an "eligible employer."


In the plan year preceding the one in which the determination letter request is filed, did you have at least one non-highly compensated plan participant?

To qualify for the exemption, you must have had at least one non-highly compensated employee participating in the plan in the year prior to the year you file your application (if the application is filed in the plan's first plan year, the requirement applies to that plan year). A non-highly compensated employee is an employee who isn't a highly compensated employee (see IRC section §414(q)).If you meet the user fee exemption, remember to sign and date the certification on the Form 8717, User Fee for Employee Plan Determination, Opinion and Advisory Letter Request PDF. If your plan is not eligible for the user fee exemption, you must submit the correct fee, or your package will be returned.

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