Rev. Proc. 75-31

Section 1. Purpose

This Revenue Procedure sets forth requirements of the Internal Revenue Service with respect to notifying interested parties of requests for determination letters relating to the qualification of individually designed pension, annuity, profit-sharing, bond purchase, and stock bonus plans under sections 401(a) and 405(a) of the Internal Revenue Code of 1954, as amended by the Employee Retirement Income Security Act of 1974 (Public Law 93-406, 1974-3 C.B. 1), approved September 2, 1974 (hereinafter referred to as "the Act.")

Sec. 2. Background and General Information

.01 The general procedures of the Service relating to the issuance of rulings, determination letters, and opinion letters are set forth in Rev. Proc. 72-3, 1972-1 C.B. 698. Rev. Proc. 72-6, 1972-1 C.B. 710, provides the detailed procedures relating to the issuance of determination letters as to the qualification of employees' plans under sections 401(a) and 405(a) of the Code and to the exempt status of related trusts (including custodial accounts treated as trusts), if any, under section 501(a). Rev. Proc. 74-38, 1974-2 C.B. 492, temporarily limited the issuance of determination letters on the qualification of plans to those that can qualify under the provisions of section 401(a) or 405(a) as in effect prior to September 2, 1974. The purpose of that limitation was to enable the Service to develop guidelines for determining whether plans meet the provisions of the Act. Revenue Procedure 75-5, 1975-1 C.B. 645, sets forth guidelines under which determination letters with respect to certain types of plans will be issued.

.02 Section 3001(a) of the Act requires that before an advance determination letter regarding the qualification of a pension, profit-sharing, or stock bonus plan, a trust which is a part of such a plan, or an annuity or bond purchase plan described in section 401(a), 403(a), or 405(a) may be issued, the applicant must provide evidence that each employee who qualifies as an interested party under the regulations prescribed under section 7476 of the Code (relating to declaratory judgments) has been notified of the application for such determination. This Revenue Procedure sets forth the time within which such notice must be given, the contents of such notice, and the information which must be made available to interested parties, including information on the procedure to be followed by an interested party submitting, or requesting the Department of Labor to submit, a comment on whether the plan meets the requirements for qualification.

Sec. 3. Notice

.01 Notice that an application for an advance determination regarding the qualification of plans described in section 401(a), 403(a), or 405(a) is to be made must be given to all interested parties in the manner set forth in the regulations under section 7476.

.02 When the notice referred to in subsection .01 is given by posting or in person, such notice must be given not less than 7 days nor more than 21 days prior to the date the application for a determination is made. When the notice is given by mailing, it should be given not less than 10 days nor more than 24 days prior to the date the application for a determination is made. If, however, an application is returned to the applicant for failure to notify all interested parties, those interested parties who were notified of the original application need not be renotified merely because, as a result of the resubmission, the time limitations of this subsection would not be met.

.03 The notice referred to in subsection .01 shall be in writing and shall contain the following information:

1 a brief description identifying the class or classes of interested parties to whom the notice is addressed (e.g., all present employees of the employer, all present employees eligible to participate);

2 the name of the plan, the plan identification number, and the name of the plan administrator;

3 the name and taxpayer identification number of the applicant;

4 that an application for a determination as to the qualified status of the plan is to be made to the Internal Revenue Service, stating whether the application relates to an initial qualification, a plan amendment or a plan termination, and the address of the District Director to whom the application will be submitted;

5 a description of the class of employees eligible to participate under the plan;

6 whether or not the Service has issued a previous determination as to the qualified status of the plan;

7 a statement that any person to whom the notice is addressed is entitled to submit, or request the Department of Labor to submit, to the District Director described in subsection .034, above, a comment on the question of whether the plan meets the requirements for qualification under part I of subchapter D of chapter I of the Internal Revenue Code of 1954; that two or more such persons may join in a single comment or request; and that if such a person or persons request the Department of Labor to submit a comment and that department declines to do so in respect of one or more matters raised in the request, the person or persons so requesting may submit a comment to the District Director in respect of the matters on which the Department of Labor declines to comment;

8 that a comment to the District Director or a request of the Department of Labor must be made according to the following procedures:

(a) a comment to the District Director must be received on or before the 45th day (specified by date) after the day on which the application for determination is received by the District Director;

(b) or if the comment is being submitted on a matter on which the Department of Labor was first requested but declined to comment, on or before the later of such 45th day or the 15th day after the day on which the Department of Labor notifies such person or persons that it declines to comment, but in no event later than the 60th day (specified by date) after the day the application is received by the District Director; and

(c) a request of the Department of Labor to submit such a comment must be received by such department on or before the 25th day (specified by date) (or if the person or persons requesting the Department of Labor to submit such a comment wish to preserve their right to submit a comment to the District Director in the event the Department of Labor declines to comment, on or before the 15th day (specified by date)) after the day the application is received by the District Director;

9 except to the extent there is included in the notice the additional informational materials which subsections .05, .06, and .07 require be made available to interested parties, a description of a reasonable procedure whereby such additional informational material will be available to them (see subsection .04). (An example of a notice setting forth the above information, in a case in which the additional information required by subsections .05, .06, and .07 will be made available at places accessible to the interested parties, is set forth in the Exhibit to the Revenue Procedure.)

.04 The procedure referred to in subsection .039, whereby the additional informational material required by subsections .05, .06, and .07 will (to the extent not included in the notice) be made available to interested parties, may consist of making such material available for inspection and copying by interested parties at a place or places reasonably accessible to such parties, or supplying such material in person or by mail to interested parties requesting the same in person or by mail, or by a combination of the foregoing, provided such procedure is immediately available to all interested parties, is designed to supply them with such additional informational material in time for them to pursue their rights within the time period prescribed, and is available until the earlier of the filing of a pleading commencing a declaratory judgment action under section 7476 of the Code with respect to the qualification of the plan or the 92d day after the day the notice of final determination is mailed to the applicant.

.05 Unless provided in the notice, the following materials shall be made available to interested parties under a procedure described in subsection .04:

1 an updated copy of the plan and the related trust agreement (if any);

2 the application for determination;

provided, however, that if as of the time the application is made, the number of employees eligible to participate, subject only to making any mandatory employee contributions, is less than 26, in lieu of making such materials available to interested parties who are not eligible to participate, there may be made available to such parties a document containing the following information: A description of the plan's requirements respecting eligibility for participation and benefits; a description of the provisions providing for nonforfeitable benefits; a description of the circumstances which may result in ineligibility, or denial or loss of benefits; a description of the source of financing of the plan and the identity of any organization through which benefits are provided; and whether the applicant is claiming in his application that the plan meets the requirements of section 410(b)(1)(A) of the Code, and if not, the coverage schedule required by the application in the case of plans not meeting the requirements of such section.

Information of the type described in section 6104(a)(1)(D) of the Code should not be included in the application, plan, or related trust agreement submitted to the Internal Revenue Service. Accordingly, such information should not be included in any of the materials required by this subsection .05 to be available to interested parties.

There may be excluded from such material, information contained in Form 5302 (Employee Census). However, information showing the number of individuals covered and not covered in the plan, listed by compensation range, shall not be excluded.

.06 Unless provided in the notice, there shall be made available to interested parties under a procedure described in subsection .04, any additional document dealing with the application which is submitted by or for the applicant to the Internal Revenue Service, or furnished by the Internal Revenue Service to the applicant; provided, however, if as of the time the application is made, the number of employees eligible to participate, subject only to making any mandatory employee contributions, is less than 26, such additional documents need not be made available to interested parties who are not eligible to participate. The applicant may also withhold from such inspection and copying information described in section 6104(a)(1)(C) and (D) of the Code which may be contained in such additional documents.

.07 Unless provided in the notice, there shall be made available to all interested parties under a procedure described in subsection .04, material setting forth the following information:

1 A comment submitted by an interested party or parties to the District Director, must be in writing, signed by such party or parties or by an authorized representative of such party or parties (as provided in sec. 601.201(e)(6) of the Internal Revenue Service Statement of Procedural Rules), be addressed to the District Director described in subsection .034, and contain the following:

(a) the name or names of the interested party or parties making the comment;

(b) the name and taxpayer identification number of the applicant making the application;

(c) the name of the plan and the plan identification number;

(d) whether the party or parties submitting the comments are--

(i) employees eligible to participate under the plan,

(ii) former employees or beneficiaries of deceased former employees who have a vested right to benefit under the plan, or

(iii) employees not eligible to participate under the plan.

(e) the specific matter or matters raised by the interested party or parties on the question whether the plan meets the requirements for qualification under Part I of Subchapter D of the Code, and how such matter or matters relate to the interests of such party or parties making such comment.

(f) the address of the interested party submitting the comment to which all correspondence, including a notice of the Internal Revenue Service's final determination with respect to qualification should be sent. (See section 7476(b)(5) of the Code.) If more than one interested party submits the comment, it must designate a representative for receipt of such correspondence and notice on behalf of all interested parties submitting the comment and state the address of such representative. Such representative shall be one of the interested parties submitting the comment or the authorized representative.

2 A request of the Department of Labor to submit a comment to the District Director must be in writing, signed as provided in subsection .071, addressed to the Director of the Office of Employee Benefits Security, Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, and contain the information prescribed in subsection .071. The address designated for notice by the Internal Revenue Service will be used by the Department of Labor in communicating with the party or parties submitting the request.

3 If a request described in subsection .072 is made and the Department of Labor sends a notice that it declines to comment on one or more matters raised in the request, the party or parties submitting the request may submit to the District Director described in subsection .034 a comment in respect of any matter on which the Department of Labor declines to comment. Such comment must comply with the requirements described in subsection .071, and include a statement that the comment is being submitted on matters raised in a request to the Department of Labor on which that department declined to comment.

4 For purposes of subsections .038 and .073, notice by the Department of Labor that it declines to comment shall be deemed given to the interested party designated to receive such notice when received by him.

5 The contents of written comments submitted by interested parties to the Internal Revenue Service pursuant to subsection .071 or .073 will not be treated as confidential material and may be inspected by persons outside the Internal Revenue Service, including the applicant for the determination. Accordingly, designations of material as confidential or not to be disclosed, contained in such comments, will not be accepted. Thus, an interested party submitting a written comment should not include therein material that he considers to be confidential or inappropriate for disclosure to the public. It will be presumed by the Internal Revenue Service that every written comment submitted to it is intended by the party or parties submitting it to be subject in its entirety to public inspection and copying.

.08 If a modification of, or an amendment to the plan occurs while the application is pending with the Internal Revenue Service and the modification or amendment enlarges the class of interested parties to include persons who were not originally notified, the applicant must resubmit the application and renotify all interested parties in the manner and within the time prescribed by regulations under section 7476 and in accordance with the rules of this Revenue Procedure as though such resubmission were the original submission.

.09 An application for an advance determination, a comment to the District Director, or a request to the Department of Labor, shall be deemed made when it is received by the District Director, or the Department of Labor. The notice described in section 3.01 shall be deemed given when it is given in person, posted as prescribed in the regulations under section 7476 or received through the mail. In any case where such an application, request, comment, or notice is sent by mail, it shall be deemed received as of the date of the postmark (or if sent by certified or registered mail, the date of certification or registration), if it is deposited in the mail in the United States in an envelope or other appropriate wrapper first class postage prepaid, property addressed. However, if such an application, request or comment is not received within a reasonable period from the date of postmark, the immediately preceding sentence shall not apply.

Sec. 4. Effect On Other Documents

Rev. Procs. 72-6, 74-38, and Rev. Proc. 75-5 are hereby amplified to reflect the procedure prescribed in this Revenue Procedure for notifying interested parties.

Sec. 5. Effective Date

.01 This Revenue Procedure applies to an application for an advance determination in respect of a plan year or years to which section 410 of the Code applies to the plan, whether or not such application is received by the District Director before the first date on which such section applies to the plan.

.02 For purposes of section 5.01, section 410 shall be considered to apply to a plan year if an election has been made under section 1017(d) of the Employee Retirement Income Security Act of 1974 to have section 410 apply to such plan year, whether or not the election is conditioned upon the issuance by the Commissioner of a favorable determination.

.03 For purposes of section 5.01, in the case of an organization described in section 410(c)(1), section 410 will be considered to apply to a plan year of such organization for any plan year to which section 410(c)(2) applies to such plan.

¹ Also released as TIR-1385, dated June 11, 1975.

                                EXHIBIT