IRS REVISES PROCEDURES FOR ISSUING EMPLOYEE PLAN DETERMINATION LETTERS.

Rev. Proc. 91-10

CONTENTS

SEC. 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE?

SEC. 3. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN GUIDANCE UNDER

SEC. 16. WHAT RIGHTS TO NOTICE AND COMMENT DO INTERESTED PARTIES HAVE?

SEC. 19. HOW DOES THE SERVICE HANDLE DETERMINATION LETTER REQUESTS

EXHIBITS I AND II

SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE?

01 This revenue procedure sets for the procedures of the various offices of the Internal Revenue Service for issuing determination letters on the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans under sections 401, 403(a), 409 and 4975(e)(7) of the Internal Revenue Code of 1986, and the status for exemption of any related trusts or custodial accounts under section 501(a).

02 Rev. Proc. 88-42, 1988-1 C.B. 613, contains special procedures for requesting determination letters with respect to requirements under the Tax Reform Act of 1986 that are effective for plan years beginning before January 1, 1989. Revenue Procedure 90-20, 1990-1 C.B. 495, sets forth special procedures for issuing determination letters on the qualified status of certain ongoing pension, profit-sharing, and annuity plans under sections 401 and 403(a) of the Code, as amended, and on the tax-exempt status of any related trusts or custodial accounts under section 501(a). These procedures are in addition to the Service's general procedures under this revenue procedure. Until further notice, Rev. Proc. 88-42 and Rev. Proc. 90-20 continue to be in effect. Rev. Proc. 88-42 and Rev. Proc. 90-20 are modified so that references to Rev. Proc. 80-30 are references to this revenue procedure.

03 A trust created or organized in the United States and forming part of a pension, profit-sharing, stock bonus or annuity plan of an employer for the exclusive benefit of its employees or their beneficiaries that meets the requirements of section 401 of the Code is a qualified trust and is exempt from federal income tax under section 501(a) unless the exemption is denied under section 502, relating to feeder organizations, or section 503, relating to prohibited transactions, if, in the later case, the plan is one described in section 503(a)(1)(B).

04 A nontrusteed annuity plan that meets the applicable requirements of section 401(a) and, in the instance of a plan that benefits one or more owner employees, 401(d) qualifies for special tax treatment provided for under other sections of the Code, such as section 404(a)(2) (relating to deductions of employer contributions for the purchase of retirement annuities), if the additional provisions of such other sections are also met.

05 Part I of this revenue procedure contains instructions for requesting determination letters for various types of plans and transactions. Part II contains procedures for providing notice to interested parties, and for interested parties to comment on determination letter requests. Part III contains procedures concerning the processing of determination letter requests and describes the effect of a determination letter.

SEC. 2. WHAT CHANGES HAVE BEEN MADE TO THIS PROCEDURE?

01 This revenue procedure updates the procedures relating to the issuance of determination letters in light of changes to the employee plans qualifications requirements enacted by the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, 1982-2 C.B. 462; the Tax Reform Act of 1984 (TRA '84), Pub. L. 98-369, 1984- 3 (Vol. 1) C.B. 1; the Retirement Equity Act of 1984 (REA), Pub. L. 98-397, 1984-2 C.B. 433; the Tax Reform Act of 1986 (TRA '86), Pub. L. 99-514, 1986-3 (Vol. 1) C.B. 1; the Omnibus Budget Reconciliation Act of 1987 (OBRA '87), Pub. L. 100-203, the Technical and Miscellaneous Revenue Act of 1988 (TAMRA), Pub. L. 100-647, and the Omnibus Budget Reconciliation Act of 1989 (OBRA '89).

02 Section 3.02 of this revenue procedure includes a table setting out the various transactions which may be the subject of determination letters, the forms which should be filed in each instance, and the sections of this procedure that contain specific procedures for each type of request.

03 The following revenue procedures issued between 1975 and 1989, concerning various aspects of the employee plans determination letter process, have been incorporated in whole or in part in this revenue procedure:

(1) Rev. Proc. 75-48, 1975-2 C.B. 503, which sets forth procedures for issuing determination letters relating to whether an individually designed defined contribution plan constitutes an employee stock ownership plan (ESOP) under section 301(d) of the Tax Reduction Act of 1975, Pub. L. 94-12.

(2) Rev. Proc. 80-30, 1980-1 C.B. 685, which sets forth the procedures of the Service for issuing determination letters in employee plans matters.

(3) Rev. Proc. 81-19, 1981-1 C.B. 589, which sets forth optional application procedures for requesting determination letters on certain amendments to plans for which favorable determination letters have already been issued.

(4) Rev. Proc. 83-14, 1983-1 C.B. 675, which sets forth special procedures to be followed by certain pension plans in requesting determination letters on plan termination. This procedure implemented a one-stop service concept for compliance with ERISA requirements relating to plan terminations whether the repayments were administered by the IRS or the Pension Benefit Guaranty Corporation (PBGC). However, the Single Employer Pension Plans Amendments Act (SEPPA), part of the Consolidated Omnibus Reconciliation Act of 1985, P.L. 99-272, eliminated this one-stop service.

(5) Rev. Proc. 83-41, 1983-1 C.B. 775, as modified by Rev. Proc. 88-5, 1988-1 C.B. 587, and Rev. Proc. 88-29, 1988-1 C.B. 828, which sets forth special procedures to be followed in issuing a determination letter for a defined contribution plan if a waiver of the minimum funding standard has been requested.

(6) Rev. Proc. 85-43, 1985-2 C.B. 501, which sets forth procedures for obtaining determination letters on the qualification of [the] employees' pension, profit-sharing, stock bonus, or annuity plan established or maintained by a member of an affiliated service group within the meaning of section 414(m) of the Code, or an employer that utilizes the services of leased employees within the meaning of section 414(n) of the Code. These procedures have been incorporated in section 14 below.

(7) Rev. Proc. 88-9, 1988-1 C.B. 634, which sets forth special procedures pertaining to the issuance of determination letters on the qualification of pension, profit-sharing, stock bonus, and annuity plans that will be terminated prior to the delayed amendment date provided in section 1140 of the Tax Reform Act of 1986. In order to receive favorable determination letters, qualified plans terminating prior to this delayed effective date must be amended to reflect the law in effect at the time of termination. These procedures have been incorporated in section 11.05 below.

(8) Rev. Proc. 88-42, 1988-2 C.B. 613, sets forth special procedures pertaining to the issuance of determination and notification letters regarding the qualified status of plans that reflect the pre-1989 requirements of the Tax Reform Act of 1986 (TRA '86), Pub. L. 99-514. The procedure does not apply to requests for determination letters relating to terminating plans.

(9) Rev. Proc. 90-20, 1990-1 C.B. 495, sets forth special procedures for issuing determination letters on certain ongoing pension, profit-sharing, and annuity plans.

04 The information that must be available to interested parties has been expanded to include a description of optional forms of benefit that have been reduced or eliminated by plan amendment.

05 Additional sections not in the prior revenue procedures have been included in this revenue procedure to set out the determination letter requirements with regard to master and prototype plans and regional prototype plans (section 7), volume submitter plans (section 8), multiple employer plans (section 9), foreign situs trusts (section 12), group trusts (section 13), affiliated service groups (section 14), and waiver of minimum funding (section 15).

06 The number of Key District Offices has been reduced from seventeen to seven, and the IRS Districts covered under each Key District have been revised.

07 Instructions are set out with regard to using Forms 5300, 5302, 5303, 5307, 5309, 5310, 6406, and 6088 for requesting determination letters.

08 Determination letter requests submitted in the case of foreign employers must now be sent to the EP/EO Division in the Baltimore Key District Office.

09 Section 3.02 is amended to provide that determination letters will not be issued on plans that combine ESOP provisions under sections 4975(e)(7) and 409 of the Code, and cash or deferred arrangement provisions under section 401(k) of the Code with respect to (1) the application of the nondiscrimination requirements of sections 401(k)(3), 401(m)(2), and 401(a)(4), or (2) whether an exempt ESOP loan can be repaid with employer matching contributions or employee elective contributions.

PART I. PROCEDURES FOR DETERMINATION LETTER REQUESTS

SEC. 3. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN GUIDANCE UNDER THIS PROCEDURE?

01 Determination letters may be requested on completed and proposed transactions as set forth in the table below:

                                                             REV.PROC.

(1) Issues involving sections 72, 79, 105, 125, 127, 129, 402, 403 (other than 403(a)) 404, 409(l), 409(m), 412, 457, 511 through 515, and 4975 (other than 4975(e)(7)), unless these determination letters are authorized under section 7 of Rev. Proc. 91-4, 1991-4 I.R.B. 20.

(2) Plans or plan amendments for which automatic approval is granted pursuant to section 7.05 or section 18.05 below

(3) Plan amendments described below (these amendments will, to the extent provided, be deemed not to alter the qualified status of a plan under section 401(a) of the Code).

(a) An amendment solely to permit a trust forming part of a plan to participate in a pooled fund arrangement described in Rev. Rul. 81-100;

(b) An amendment that merely adjusts the maximum limitations under section 415 the Code to reflect annual cost-of- living increases, other than an amendment that adds automatic cost- of-living adjustment provision to the plan; and

(c) An amendment solely to include language pursuant to section 403(c)(2) of Title I of ERISA concerning the reversion of employer contributions made as a result of mistake of fact.

(4) Determination letters will not be issued on plans that combine ESOP provisions under section 4975(e)(7) and section 409 of the Code, and cash or deferred arrangement provisions under section 401(k) of the Code with respect to:

(a) the application of the nondiscrimination requirements of sections 401(k), 401(m) and 401(a)(4); or

(b) whether an exempt ESOP loan can be repaid with employer matching contributions or employee elective contributions.

SEC. 4. ON WHAT ISSUES MUST WRITTEN GUIDANCE BE REQUESTED UNDER DIFFERENT PROCEDURES?

01 Other procedures for obtaining rulings, determination letters, opinion letters, etc. on matters within the jurisdiction of the Assistant Commissioner (Employee Plans and Exempt Organizations) are contained in the following revenue procedures:

(1) National Office rulings, information letters, etc.: See Rev. Proc. 91-4.

(2) Master and Prototype Plans: See Rev. Proc. 89-9, 1989-I C.B. 780, as modified by Rev. Proc. 90-21, 1990-1 C.B. 499.

(3) Regional Prototype Plans: See Rev. Proc. 89-13, 1989-1 C.B. 801, as modified by Rev. Proc. 90-21, 1990-1 C.B. 499.

(4) Technical Advice Requests: See Rev. Proc. 91-5, 1991-4 I.R.B. 20.

02 For the procedures for obtaining rulings, determination letters, etc., on matters within the jurisdiction of the Associate Chief Counsel (Technical), see generally Rev. Proc. 91-1, 1991-1 I.R.B. 9, and Rev. Proc. 91-3, 1991-1 I.R.B. 52. For the procedures for obtaining rulings, determination letters, etc. on matters within the jurisdiction of the Associate Chief Counsel (International), see Rev. Proc. 87-4, 1987-1 C.B. 529, as modified by Rev. Proc. 88-4, 1988-1 C.B. 586.

SEC. 5. WHAT IS THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION LETTERS?

This section contains procedures that are generally applicable to all determination letter requests. Additional procedures for specific requests are contained in sections 6 through 15.

01 Rev. Proc. 88-42, 1988-1 C.B. 613, contains special procedures for requesting determination letters with respect to requirements under the Tax Reform Act of 1986 that are effective for plan years beginning before January 1, 1989. Rev. Proc. 90-20 sets forth special procedures for requesting determination letters for certain ongoing pension, profit-sharing, and annuity plans under sections 401 and 403(a) of the Code, as amended, and on the tax exempt status of any related trusts or custodial accounts under section 501(a). These special procedures are in addition to the Service's general determination letter procedures contained in this revenue procedure. Until further notice, Rev. Proc. 88-42 and Rev. Proc. 90-20 continue to be in effect. References to Rev. Proc. 80-30 contained in Rev. Proc. 88-42 and Rev. Proc. 90-20 are modified to be references to this revenue procedure.

02 An applicant requesting a determination letter must file the material required by this revenue procedure with the appropriate Key District Director. The filing of the application, when accompanied by all information and documents required by this revenue procedure, will generally serve to provide the Service with the information required to make the requested determination. However, in making the determination, the Service may require the submission of additional information. Information submitted to the Service in connection with an application for determination may be subject to public inspection to the extent provided by section 6104 of the Code.

03 Section 9 of Rev. Proc. 91-4, is generally applicable to requests for determination letters under this revenue procedure.

04 The appropriate user fee must be paid according to the procedures of Rev. Proc. 90-17, 1990-1 C.B. 479. Form 8717, User Fee for Employee Plan Determination Letter Request, should accompany each determination letter request submitted to a Key District Office.

05 Before filing an application, the applicant requesting a determination letter must satisfy the requirements of section 3001(a) of ERISA, and section 7476(b)(2) of the Code and the regulations thereunder, which provide that an applicant requesting a determination letter on the qualified status of certain retirement plans must notify interested parties of such application. The general rules of the Service with respect to notifying interested parties of requests for determination letters relating to the qualification of plans involving sections 401 and 403(a) are set out below in section 16, 17 and 18 of this revenue procedure. Section 18 provides rules with respect to the special notice required when certain master or prototype plans or regional prototype plans are adopted.

06 If the application for determination involves an issue where contrary authorities exist, failure to disclose or distinguish such significant contrary authorities may result in requests for additional information, which will delay action on the application.

07 Where a multiple employer plan that is maintained by more than one employer is submitted, separate coverage data must be filed by each employer. In contrast to multiemployer plans, multiple employer plans are not maintained pursuant to collective bargaining agreements.

08 When, in connection with an application for a determination on the qualification of the plan, it is necessary to determine whether an employer-employee relationship exists, the Key District Director will make such determinations. In such cases, the application with respect to the qualification of the plan should be filed in accordance with the provisions of this revenue procedure, contain the information and documents in the instruction to the application, and be accompanied by a completed Form SS-8, Information for Use in Determining whether a Worker is an Employee for Federal Employment Taxes and Income Tax Withholding, and any information and copies of documents the organization deems appropriate to establish its status. The Service may, in addition, require further information that it considers necessary to determine the employment status of the individuals involved, or the qualification of the plan. After the employer-employee relationship has been determined, the Key District Director may issue a determination letter as to the qualification of the plan.

09 If an applicant requesting a determination letter does not comply with all the provisions of this section, the Key District Director, in his or her discretion, may return the application and point out to the applicant those provisions which have not been met. The request will also be returned pursuant to Rev. Proc. 90-17 if the correct user fee is not attached. If such a request is returned to the applicant, the 270-day period described in section 7476(b)(3) of the Code will not begin to run until such time as the provisions of this section have been satisfied.

10 The Service may determine, based on the application form, the extent of review of the plan document. A failure to disclose a material fact or misrepresentation of a material fact on the application may adversely affect the reliance which would otherwise be obtained though issuance by the Service of a favorable determination letter. Similarly, failure to accurately provide any of the information called for on any form required by this revenue procedure may result in no reliance.

11 Requests for determination letters are to be addressed to the Key District Director specified below, except as indicated.

(1) In the case of a plan of a single employer, the request is to be addressed to the Key District Director for the district in which the employer's principal place of business is located.

(2) In the case of a multiemployer plan established or proposed by subscribing employers with principal places of business located within the jurisdiction of more than one Key District Director, as an alternative to (1) above, the request may be addressed to the Key District Director for the district in which the trustee's principal place of business is located. If the plan has more than one trustee, the request may be addressed to the Key District Director for the district where the trustees usually meet.

(3) In the case of a plan maintained by more than one employer, the applicant or plan administrator must file the appropriate determination letter form with the District Director for the Key District in which the principal place of business of the plan sponsor is located. This means the principal place of business of the association, committee, joint board of trustees or other similar group, or representatives of those who establish or maintain the plan.

(4) In the case of related employers described in section 414(b), (c), or (m) of the Code, the request must be addressed to the Key District Director for the district where the principal place of business for the entity is located if the request involves one plan or several plans with substantially similar provisions. All future requests involving any member or members of the entity must be addressed to the same Key District Director.

(5) In the case of a group trust arrangement under Rev. Rul. 81- 100, 1981-1 C.B. 326, the request on behalf of the master trust must be addressed to the Key District Director for the district where the principal place of business of the trustee is located. Requests on behalf of the participating trusts and related plans must be addressed as otherwise provided in this section.

12 The applicant's request for a determination letter may be withdrawn by a written request at any time prior to the issuance of a proposed adverse determination letter, filing of an appeal of the proposed adverse action with the Chief, Appeals Office, prior to the receipt of technical advice from the National Office in accordance with Rev. Proc. 91-5, as provided in paragraph 601.201(o)(6) of the Statement of Procedural Rules. In the case of such a withdrawal, the Service will not issue a determination of any type. A failure to issue a determination letter as a result of a withdrawal will not be considered a failure of the Secretary or his delegate to make a determination within the meaning of section 7476 of the Code. However, the Service may consider the information submitted in connection with the withdrawn request in a subsequent examination. Generally, the user fee will not be refunded if the application is withdrawn.

SEC. 6. INITIAL QUALIFICATION, ETC.

01 This section contains procedures for requesting determination letters for individually designed defined contribution and defined benefit plans, employee stock ownership plans, and collectively bargained plans in the following circumstances:

(1) Initial qualification.

(2) Amendment (other than minor amendments described in section 7 below for which Form 6406 is appropriate).

(3) Restatement of plan.

(4) Qualification of the remainder of a plan in the event of a partial termination.

(5) To give notice of merger or transfer of plan assets or liabilities and to request a determination letter on the remaining plan.

02 A determination letter request for the items listed in section 6.01 is made by filing the appropriate form according to the instructions contained on the form.

(1) Form 5300, Application for Determination for Employee Benefits Plan, must be filed to request a determination letter for plans other than collectively bargained plans.

(2) Form 5303, Application for Determination for Collectively Bargained Plan, must be filed by a sponsor of a collectively bargained plan that covers only employees covered by a collective bargaining agreement, including employees of the representative labor union(s). If there is more than one plan, a separate Form 5303 must be filed for each plan.

(3) Form 5302, Employee Census, must be filed as an attachment to the appropriate form by every employer or plan administrator that files an application for a determination letter for a defined benefit or a defined contribution plan. For collectively bargained plans, a Form 5302 is required only if the plan covers employees of the representative labor union(s) or if it covers both union members and employees who are not involved in the collective bargaining agreement.

(4) Form 5309, Application for Determination of Employee Stock Ownership Plan, must be filed as an attachment with a Form 5300 and Form 5302 by a corporate employer in order to request a determination whether the plan is an ESOP under sections 409 or 4975(e)(7) of the Code.

03 For a controlled group of corporations as defined in section 414(b) of the Code, trades or businesses under common control as defined in section 414(c), an affiliated service group within the meaning of section 414(m), and any entity utilizing the services of leased employees within the meaning of section 414(n), the coverage items on the application forms referred to in this revenue procedure must be completed as though the controlled group, commonly controlled trades or businesses, affiliated service group, etc., constituted a single entity. Leased employees within the meaning of section 414(n) must be included as employees of the recipient entity (except in the case of a safe-harbor plan).

SEC. 7. MASTER & PROTOTYPE PLANS, REGIONAL PROTOTYPE PLANS

01 This section contains procedures for requesting determination letters relating to master and prototype plans or regional prototype plans.

02 Except as provided in section 7.05, the issuance of a favorable opinion letter or notification letter for a master and prototype plan or regional prototype plan does not constitute a determination that an employer adopting the sponsoring organization or sponsor's plan has reliance that the plan is qualified under section 401(a) of the Code. In order to have reliance, an employer must obtain a favorable determination letter according to this revenue procedure. In general, determination letters are requested for the employer's adoption of a master or prototype plan or regional prototype plan, or for a change by the employer in the choice of options offered by the sponsoring organization of a master or prototype plan or the sponsor of regional prototype plan.

03 Required Forms.

(1) Form 5307, Application for Determination for Adopters of Master or Prototype, Regional Prototype, or Volume Submitter Plan, must be filed to request a determination letter for the adoption of a master or prototype plan, or a regional prototype plan.

(2) Form 5302, Employee Census, must be filed as an attachment to Form 5307.

04 The determination letter request must include the following:

(1) An executed adoption agreement showing which elections the employer is making with respect to the elective provisions contained in the plan;

(2) A copy of the plan's most recent opinion letter or notification letter;

(3) In the case of a determination letter request for a regional prototype plan, the application must include a certification by the sponsor that the notification letter has not been withdrawn and is still in effect with respect to the plan being submitted; and

(4) In the case of a determination letter request for a regional prototype plan that uses a separate trust or custodial account, a copy of the employer's trust or custodial account document.

05 The following procedures apply for an employer's adoption of a master and prototype or regional prototype standardized form plan or paired plan.

(1) An employer adopting a standardized form or paired plan may rely on that plan's opinion or notification letter, except as provided in section 7.05 (2), (3) and (4) below, if the following conditions are satisfied:

(a) The sponsoring organization or sponsor of such plan or plans has a currently valid favorable opinion or notification letter;

(b) The employer has followed the terms of the plan(s), and the coverage and contributions or benefits under the plan(s) are not more favorable for highly compensated employees (as defined in section 414(q) of the Code) than for other employees;

(c) The employer has properly notified all interested parties of the adoption of the plan(s) in accordance with sections 16, 17 and 18 of this revenue procedure; and

(d) The employer has not received, within 120 days after the date of adoption of the plan(s), notice from the Service that the plan(s) will not be treated as qualified pursuant to this subsection.

(2) Non-reliance by employer maintaining more than one plan -- Except in the case of a combination of paired plans, an employer may not rely on opinion letters for standardized form plans without obtaining a determination letter, if the employer maintains at any time, or has maintained at any time, another plan, including a standardized form plan, that was qualified or determined to be qualified covering some of the same participants. For this purpose, a plan that has been properly replaced by the adoption of a standardized form plan is not considered another plan. The plan that has been replaced and the standardized form plan must be of the same type (e.g., both money purchase pension plans) in order for the employer to be able to rely on the standardized form plan's opinion or notification letter without obtaining a determination letter.

(3) Reliance by employers adopting standardized plans sponsored by trade or professional organizations -- With respect to master and prototype plans, a standardized form plan sponsored by a trade or professional organization which is adopted by an employer that is not a bona fide member of such organization will be considered an individually designed plan and the procedures of this revenue procedure for issuing determination letters for individually designed plans will apply to the employer's plan.

(4) The Key District Director will evaluate comments received from interested parties, from the Secretary of Labor with respect to an employer's adoption of a master or prototype plan or a regional prototype plan described in section 7.05. If the Key District Director determines that the matters mentioned cannot affect the qualification of the plan, the employer and the interested parties who commented will be so notified. If the Key District Director determines that the matters may affect the qualification of the plan, the Key District Director will inform the employer of the nature of these matters, and will notify the employer that the employer cannot rely on the provisions of section 7.05. The employer should then request a determination letter by submitting a written statement that discusses the matters raised and sets forth the reasons why it believes section 401(a) has been satisfied. However, an additional notice to interested parties will not be required. If a determination letter is requested and the determination is favorable with respect to the qualification of the plan, the employer's adoption of the plan will thereafter be treated as any other adoption of a master or prototype plan or a regional prototype plan described in section 7.05.

06 An employer that amends any provision of a master or prototype plan or its adoption agreement (other than an approved master or prototype plan or regional prototype plan to choose among the options offered by the sponsoring organization or sponsor if the plan permits or contemplates such options), or an employer that chooses to discontinue participation in such a plan amended by its sponsoring organization or sponsor and does not substitute another approved plan referred to in section 7.05 is considered to have adopted an individually designed plan. The requirements stated in this revenue procedure relating to the issuance of determination letters for individually designed plans will then apply to such plan.

07 An application submitted by an employer with respect to a master or prototype plan or regional prototype plan will be treated as an application for an individually designed plan if it is submitted prior to the time the master or prototype plan or regional prototype plan is approved.

SEC. 8. VOLUME SUBMITTER PLANS

01 This section contains procedures for requesting advisory letters and determination letters for volume submitter plans.

02 A volume submitter plan is a profit-sharing plan, 401(k) plan, money purchase pension plan (other than a target benefit plan), target benefit plan, or defined benefit plan, the form of which meets certain criteria established by an individual Key District Office and which is submitted pursuant to procedures established by the Key District Office for filing requests for volume submitter advisory letters (with respect to the specimen plan) and requests for determination letters (with respect to the adoption of an approved specimen plan). The Service will not accept volume submitter requests with respect to employee stock ownership plans (ESOPs) or stock bonus plans.

03 The volume submitter program enables Key District Offices to expedite the issuance of determination letters in response to applications for approval of individually designed plans. The program is administered locally by each Key District Office.

04 Under the volume submitter program, a practitioner who qualifies may request the Service to issue an advisory letter regarding a volume submitter specimen plan. A specimen plan is a sample plan of a practitioner (rather than the actual plan of an employer) that contains provisions which are identical or substantially similar to the provisions in plans that such practitioner's clients have adopted or are expected to adopt. Once the Service has approved the specimen plan, the practitioner will be able to file determination letter requests on behalf of employers adopting substantially similar plans.

05 Rev. Proc. 90-17 provides reduced user fees for requests under the volume submitter program if certain requirements are satisfied. For adopting employers to be entitled to file a request under the lower fees, the volume submitter practitioner must certify at the time of filing the specimen plan that at least 30 employers within any two regions of the Service are expected to adopt plans that are substantially similar in form to the specimen plan. Also, the volume submitter practitioner must be a representative of the employer when the employer's determination letter application is filed. Although the volume submitter is not required to submit a list of adopting employers, the Service reserves the right to request such a list.

06 Advisory letters for volume submitter specimen plans.

(1) A request for approval of a volume submitter specimen plan must be submitted to the Key District Office in which the practitioner has its principal place of business. The request must include the following:

(a) A copy of the specimen plan and any related specimen trust instrument;

(b) A cover letter requesting approval that includes the certification described in section 8.05 above and indicates the type of plan for which approval is being requested; and

(c) The required user fee submitted with Form 8717, User Fee for Employee Plan Determination Letter Request.

(2) A practitioner who has received approval of a volume submitter specimen plan in a Key District Office must receive separate approval of the plan from each other Key District Office in which there are clients adopting substantially similar plans. Once the practitioner has received approval from the Key District Office in which the practitioner's principal place of business is located, the practitioner may file for approval of the same specimen plan in other Key District Offices where there are employers who will adopt substantially similar plans. If the practitioner certifies at the time of filing with the second Key District Office that the specimen plan is identical to a specimen plan approved by another Key District Office with respect to that practitioner and attaches a copy of that office's advisory letter, then the user fee that would otherwise be charged for the specimen plan will not be charged.

07 Determination letters for adoption of volume submitter plan.

(1) Form 5307, Application for Determination for Adopters of Master or Prototype, Regional Prototype, or Volume Submitter Plan, is filed with Form 5302, Employee Census, to request a determination letter on an employer's adoption of a volume submitter plan.

(2) A copy of the advisory letter for the practitioner's volume submitter specimen plan must be submitted with each Form 5307.

(3) The volume submitter practitioner must be the representative of the employer when the employer's determination letter application is filed.

(4) All applications submitted by adopters of District-approved volume submitter plans must be accompanied by a copy of the plan and trust instrument and by a written representation made by the volume submitter which explains how the plan and trust instrument are not word-for-word identical to the District-approved specimen plan and which describes the location, nature and effect of each difference from the language of the approved specimen plan. The extent to which the plan and trust instrument may differ from the approved specimen plan will be governed by the procedures of the appropriate Key District Office.

(5) All applications submitted by adopters of district approved volume submitter plans must also be accompanied by any other information or material required by the District Office.

(6) All applications for plans that have at any time in the past received a favorable determination letter must submit a copy of the plan's latest determination letter.

SEC. 9. MULTIPLE EMPLOYER PLANS

01 This section contains procedures for applications filed with respect to plans described in section 413(c) of the Code.

02 An application filed with respect to a multiple employer plan must include:

(1) A completed Form 5300 filed on behalf of one employer and a separate Form 5300 completed through line 12 for each other employer maintaining the plan; and

(2) A completed Form 5302 for each employer maintaining the plan.

03 Certain multiple employer plans have in the past received Service approval as master and prototype plans. In the case of such a plan that will continue to use an adoption agreement format, the application must also include a completed adoption agreement for each employer maintaining the plan. Regardless of whether an adoption agreement format continues to be used for such a plan, the rules of section 1.414(l)-1 of the regulations will apply in determining whether the plan is a single plan for which only one determination letter will be issued and which requires only one user fee.

04 The complete application, including all Forms 5300 and 5302 (and, if applicable, adoption agreements) for employers maintaining the plan as of the date of the application, must be filed as one package submission in the Key District Office where the association maintaining the plan, the trustees, or the plan administrators have their principal place of business. The application is to be directed to the attention of the Key District Office volume submitter coordinator.

05 Multiple employer plan applicants who previously received Service approval as a master and prototype plan and who will continue to use an adoption agreement format are encouraged to request preliminary approval of the provisions of the plan, including the permitted adoption agreement elections prior to making the submission described above. Preliminary approval may be requested by submitting a copy of the plan and trust instrument, including a blank adoption agreement, and a copy of the latest opinion letter to the volume submitter coordinator for the Key District where the complete application will be filed, requesting preliminary approval pursuant to this procedure. The request should not include an application form or user fee. The Key District will notify the applicant in writing if preliminary approval is granted, and the complete application may then be filed. Adopting employers will not be entitled to rely on the preliminary approval as to the qualified status of the plan. If the applicant requests preliminary approval of the plan on or before the date that is 6 months after proposed regulations under section 401(a)(4) are published, the Service will treat the TRA '86 401(b) period for the plan as not expiring earlier than the date that is twelve months after the date of the Key District Office's preliminary approval.

06 The Service will mail a copy of the determination letter issued with respect to the plan to each employer maintaining the plan.

07 If other employers become participating employers under the plan after a favorable determination letter has been issued, the employers may not continue to rely on such favorable determination letter. However, an applicant may request a determination that the addition of new participating employers to the plan does not adversely affect the plan's qualified status by filing a completed Form 5300 for the plan in the name of the controlling member on the Form 5300 filed pursuant to section 9.02 above, and a supplemental Form 5300 and Form 5302 (and, if applicable, adoption agreement) for each new participating employer. The Service will send copies of such a determination only to the applicant and the new participating employers.

SECTION 10. MINOR AMENDMENT OF PREVIOUSLY APPROVED PLAN

01 This section contains procedures for requesting determination letters on the effect of a minor plan amendment.

02 Required Forms

(1) Form 6406, Short Form Application for Determination for Amendment of Employee Benefit Plan, must be filed to request a determination letter on a minor plan amendment.

(2) Form 5302, Employee Census must be filed as an attachment to Form 6406.

03 All applications must be accompanied by a copy of the new amendments, a statement as to how the amendments affect or change the plan or any other plan maintained by the employer, and a copy of the latest determination letter. A copy of the plan or trust instrument should not be filed with Form 6406.

04 Form 6406 may be filed only for minor amendments. Since determination letters issued on amendments submitted with Form 6406 express an opinion only as to whether the amendments, in and of themselves, affect the qualification of employee plans under section 401 or 403(a), Form 6406 cannot be filed for complex amendments that may affect other portions of the plan so as to cause plan disqualification. Thus, Form 6406 may not be filed for an amendment to add a 401(k) or an ESOP provision to a plan, or to restate a plan. Form 6406 may not be used to obtain a determination letter on plan amendments involving a master or prototype plan, or a regional prototype plan, or for amendments involving plan mergers or consolidations, transfers of assets or liabilities, or plan terminations (including partial terminations). A determination letter on a complex amendment or on the entire plan may only be obtained by submitting an application on the appropriate Form 5300 series.

05 The Key District Office has discretion to determine whether a plan amendment may be submitted on Form 6406. The Key District Office may request additional information, including the filing of a Form 5300 series application, if it determines that the application and the attachments filed under Form 6406 do not contain sufficient information, or that Form 6406 is inappropriate.

SEC. 11. TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS

01 This section contains procedures for requesting determination letters involving plan termination or discontinuance of contributions.

02 Required Forms

(1) A Form 5310, Application for Determination Upon Termination; Notice of Merger, Consolidation, or Transfer of Plan Assets or Liabilities, is filed by plans other than multiemployer plans covered by PBGC insurance.

(2) Form 5303 is filed in the case of a collectively bargained multiemployer plan covered by PBGC insurance.

(3) A Form 6088, Distributable Benefits from Employee Pension Benefit Plans, is also required of every sponsor or plan administrator of a defined contribution or defined benefit plan who files only an application for a determination letter regarding plan termination. For collectively bargained plans, a Form 6088 is required only if the plan covers employees of the representative labor union(s), or if it covers non-union employees of the participating employer(s). A separate Form 6088 is required for each such union or employer.

03 In the case of plans subject to Title IV of ERISA, a favorable determination letter issued in connection with a plan's termination is conditioned on approval that the termination is a valid termination under Title IV of ERISA. Notification by PBGC that a plan may not be terminated will be treated as a material change of fact.

04 A plan that terminates after the effective date of a change in law, but prior to the date that amendments are otherwise required, must operate in conformity with the applicable provisions of law from the date on which such provisions become effective with respect to the plan. Because such a terminated plan would no longer be in existence by the appropriate amendment date and therefore could not be amended on that date, such plan must be amended in connection with the plan termination to comply with those provisions of law that become effective with respect to the plan on or before the date of plan termination (such amendments include any amendments made after the date of plan termination that were required in order to obtain a favorable determination letter). In addition, annuity contracts distributed from such terminated plans also must meet all the applicable provisions of any change in law. However, see Notice 88- 131, 1988-2 C.B. 546, and Notice 89-92, 1989-2 C.B. 410, both as modified by Rev. Proc. 89-65, 1989-2 C.B. 786.

05 The following procedures apply for determination letter requests for plans that terminate prior to the remedial amendment period for amendments to comply with the Tax Reform Act of 1986 (See Rev. Proc. 89-65 and Notice 90-73, 1990-51 I.R.B. 17).

(1) An application for a determination letter is made on a Form 5310, accompanied by a Form 6088, or statement of actuarial evaluation describing distributions to participants. Copies of plan amendments made since the most recent determination letter was issued must also be submitted.

(2) Applications for a determination letter on termination of a qualified plan prior to the delayed amendment date of section 1140 of TRA '86 must be accompanied by the following representations, where applicable:

(a) In the case of a defined benefit plan, a representation that any distribution made after December 31, 1984, complied with section 1139 rates (or the temporary REA regulations if made before 1987), or were corrected to do so by August 10, 1987.

(b) A statement as to whether annual additions, benefit accruals, or benefit payments have been made in excess of the applicable Code section 415 limitations, and which, if any, exception or transitional rules are provided in section 1106(i) of TRA '86.

SEC. 12. FOREIGN SITUS TRUSTS, FOREIGN EMPLOYERS

01 This section contains procedures for requesting determination letters involving foreign situs trusts and foreign employers.

02 A domestic employer adopting a foreign situs trust may request a determination letter regarding the qualification of its plan under section 401(a) of the Code by filing Form 5300 or Form 5307, whichever is appropriate.

03 Such a request should be addressed to the District Director for the Key District Office in which the employer's principal place of business is located. If there is a plan administrator, this material should be filed where the plan administrator is located.

04 In the case of a foreign employer and U.S. possessions, the request should be addressed to the:

     Internal Revenue Service

01 This section provides special procedures for requesting a determination letter on the qualified status of a group trust under Rev. Rul. 81-100, 1981-1 C.B. 326.

02 A request for a determination letter on the establishment of a group trust as described in Rev. Rul. 81-100 is made by submitting a written request demonstrating how the group trust satisfies the five criteria listed in Rev. Rul. 81-100, together with the trust instrument and related documents. However, a determination letter will be issued only with respect to the status of the group trust.

SEC. 14. AFFILIATED SERVICE GROUPS; LEASED EMPLOYEES

01 This section provides procedures for determination letter requests on affiliated service group status under section 414(m) of the Code, and the effect of leased employees on a plan's qualified status.

02 An employer that is subject to section 414(m) or (n) may request a determination letter under the following circumstances: (1) with respect to the initial qualification of its plan, (2) on a plan amendment, and (3) in certain circumstances, even though the plan has not been amended (for example, where there has been a change in membership in the affiliated service group or where the employer did not previously have reliance).

03 Generally, a determination letter will cover section 414(m) or 414(n) only if the employer requests such determination, and submits with the determination letter application the information specified in section 14.10(11) below.

04 Form 5300 is submitted for a request on affiliated service group status or leased employee status. Form 5307 cannot be used for that purpose.

05 An employer is responsible for determining at any particular time whether it is a member of an affiliated service group and, if so, whether its plan(s) continues to meet the requirements of section 401(a) of the Code after the effective date of section 414(m), including section 414(m)(5). An employer or plan administrator is also responsible for taking action relative to the employer's qualified plan if that employer becomes, or ceases to be, a member of an affiliated service group. An employer that is the recipient of services of leased employees within the meaning of section 414(n) of the Code is also responsible for determining at any particular time whether a leased employee is deemed an employee of the recipient for qualified plan purposes.

06 An employer that is not and has not been a member of an affiliated service group, or an employer that does not and has not utilized the services of leased employees, is not required to change its qualified plan or plans to satisfy section 414(m) or 414(n) of the Code.

07 Failure to properly indicate that there is or may be an affiliated service group and to provide the information specified in section 14.10(11) of this revenue procedure, or failure to properly indicate that an employer is utilizing the services of leased employees and to provide the information specified in section 14.10(11), is an omission of a material fact. The failure of the adopting employer to follow the procedures in this section will result in the employer being unable to rely on any favorable determination letter concerning the effect of section 414(m) or 414(n) of the Code on the qualified status of the plan.

08 If the Service considers whether the plan of an employer satisfies the requirements of section 414(m) or 414(n) of the Code, the determination letter issued to the employer will state that questions arising under section 414(m) or 414(n) have been considered, and that the plan satisfies qualification requirements relating to that section. Absent such a statement pertaining to section 414(m) or 414(n), a determination letter does not apply to any qualification issue arising by reason of such provisions.

09 An employer that has adopted a master or prototype plan or a regional prototype plan (including a standardized form plan within the meaning of section 3.08 of Rev. Proc. 89-9 or a standardized regional prototype plan within the meaning of section 4.11 of Rev. Proc. 89-13) and wants a determination as to the effect of section 414(m) or 414(n) of the Code on the qualified status of its plan must attach the information required by section 14.10(11) of this revenue procedure to Form 5300 and submit the information, Form 5300, Form 5302 and any other materials necessary to make a determination to the appropriate Key District Office.

10 Required information. A determination letter issued with respect to a plan's qualification under section 401(a) or 403(a) of the Code will be a determination as to the effect of section 414(m) upon the plan's qualified status only if the application includes:

(1) A description of the nature of the business of the employer, specifically discussing whether it is a service organization or an organization whose principal business is the performance of management functions for another organization, including the reasons therefor;

(2) The identification of other members (or possible members) of the affiliated service group;

(3) A description of the nature of the business of each member (or possible member) of the affiliated service group, describing the type of organization (corporation, partnership, etc.) and indicating whether such member is a service organization or an organization whose principal business is the performance of management functions for the other group member(s);

(4) The ownership interests between the employer and the members (or possible members) of the affiliated service group (including ownership interests as described in section 414(m)(2)(B)(ii) or 414(m)(6)(B) of the Code);

(5) A description of services performed for the employer by the members (or possible members) of the affiliated service group, or vice versa (including the percentage of each member's gross receipts and service receipts provided by such services, if available, and data as to whether the services are a significant portion of the member's business) and whether, as of December 13, 1980, it was not unusual for the services to be performed by employees of organizations in that service field in the United States;

(6) A description of how the employer and the members (or possible members) of the affiliated service group associate in performing services for other parties;

(7) In the case of a management organization under section 414(m)(5) of the Code:

(a) a description of the management functions, if any, performed by the employer for the member(s) (or possible member(s)) of the affiliated service group, or received by the employer from any other member(s) (or possible member(s)) of the group (including data as to whether such management functions are performed on a regular and continuing basis) and whether it is not unusual for such management functions to be performed by employees of organizations in the employer's business field in the United States;

(b) If management functions are performed by the employer for the member (or possible members(s)) of the affiliated service group, a description as to what part of the employer's business constitutes the performance of management functions for the member(s) (or possible member(s)) of the group (including the percentage of gross receipts derived from management activities as compared to the gross receipts from other activities);

(8) A brief description of any other plan(s) maintained by the members (or possible members) of the affiliated service group, if such other plan(s) is designated as a unit for qualification purposes with the plan for which a determination letter has been requested;

(9) A description of how the plan(s) satisfies the coverage requirement of section 410(b) of the Code if the members (or possible members) of the affiliated service group are considered part of an affiliated service group with the employer;

(10) A copy of any ruling issued by the National Office on whether the employer is an affiliated service group; a copy of any prior determination letter that considered the effect of section 414(m) on the qualified status of the employer's plan; and, if known, a copy of any such ruling or determination letter issued to any other member (or possible member) of the same affiliated service group, accompanied by a statement as to whether the facts upon which the ruling or determination letter was based have changed.

(11) Unless the plan provides that all leased employees within the meaning of section 414(n)(2) of the Code are treated as common law employees for all purposes under the plan, a determination letter issued with respect to the plan's qualification under section 401(a) or 403(a) of the Code will be a determination as to the effect of section 414(n) upon the plan's qualified status only if the application includes:

(a) A description of the nature of the business of the recipient organization;

(b) A copy of the relevant leasing agreement(s);

(c) A description of the function of all leased employees within the trade or business of the recipient organization (including data as to whether all leased employees are performing services on a substantially full-time basis) and whether it is not unusual for the services to be performed by employees of organizations in the recipient organization's business field in the United States; and

(d) If the recipient organization is relying on any qualified plan(s) maintained by the employee leasing organization for purposes of qualification of the recipient organization's plan, a description of such plan(s) (including a description of the contributions or benefits provided for all leased employees which are attributable to services performed for the recipient organization, plan eligibility, and vesting).

SEC. 15. WAIVER OF MINIMUM FUNDING

01 This section provides procedures for defined contribution plans to request a waiver of the minimum funding standard account and to request a determination letter on any plan amendment required for the waiver.

02 The procedures of Rev. Proc. 83-41, 1983-2 C.B. 775, apply to the request for a waiver of the minimum funding standard account.

03 Under this section, both the request for a waiver ruling and the request for a determination letter on the effect of any amendment necessary to satisfy section 3 of Rev. Rul. 78-223, 1978-1 C.B. 125, must be submitted by the taxpayer to the National Office where it will be treated as a mandatory request for technical advice. The request that is submitted to the National Office must include the following:

(1) All the procedural requirements described in section 3.03 of Rev. Proc. 83-41 must be satisfied;

(2) The submission must include a completed Form 5300 and all necessary documents, plan amendments, and information required by the Form 5300 and by this revenue procedure for approval of the plan amendments;

(3) The request must indicate which Key District Office has audit jurisdiction over the return; and

(4) The user fee for both the waiver request and the determination letter request must be contained in the submission to the National Office.

04 The waiver request will be handled by the National Office as follows:

(1) The waiver request and supporting documents will be forwarded to the Pension Actuarial Branch, E:EP:PA, which will treat the request as a technical advice on the qualification issue with respect to the plan provisions necessary to satisfy section 3 of Rev. Rul. 78-223.

(2) The appropriate Key District Office will be notified of the request. All materials relating to the determination letter request will be sent by the National Office to the Key District Director for consideration while the technical advice request is completed in order not to delay the processing of the request.

(3) The National Office will consider both issues. If a waiver is to be granted and if the National Office believes that qualification of the plan is not adversely affected by the plan amendment, the mandatory technical advice memorandum will be issued to the Key District Director. The Key District Director must decide within 10 working days from the date of the technical advice memorandum either to furnish the applicant with the technical advice memorandum and with a favorable advance determination letter, or to ask for reconsideration of the technical advice memorandum. This request must be in writing. An initial written notice of an intent to make this request may be submitted within 10 working days of the date of the technical advice memorandum and followed by a written request within 30 working days from the date of such written notice. If the Key District Director does not ask for reconsideration of the technical advice memorandum within 10 working days, the Pension Actuarial Branch will issue the waiver ruling. This ruling will not contain the caveat described in section 3.02 of Rev. Proc. 83-41.

05 The notice and comment requirements for interested parties provided in sections 16, 17, and 18 of this revenue procedure must be satisfied. Comments are to be forwarded to the Key District Office that is considering the determination letter request for the plan amendments.

A waiver request should be submitted no later than the later of (1) the close of the plan year following the plan year for which the waiver is requested. Upon a showing of good cause why the waiver was not timely submitted, the Pension Actuarial Branch may extend this deadline. A request for extension must be in writing.

In seeking a waiver with respect to a plan year which has not yet commenced, the applicant may have difficulty in furnishing sufficient current evidence in support of the request. For this reason it is generally advisable that such advance request be submitted no earlier than 180 days prior to the beginning of the plan year for which the waiver is requested.

PART II. INTERESTED PARTY NOTICE AND COMMENT

SEC. 16. WHAT RIGHTS TO NOTICE AND COMMENT DO INTERESTED PARTIES HAVE?

01 Persons who qualify as interested parties under section 1.7476-1(b) of the regulations, have the following rights:

(1) To receive notice, in accordance with section 18 below, that there will be filed an application for an advance determination regarding the qualification of plans described in sections 401, 403(a), 409 and 4975(e)(7) of the Code, or, with respect to plans described in section 7.05 above, to receive notice, in accordance with section 18 below, of the adoption or amendment of such plans;

(2) To submit written comments with respect to the qualification of such plans to the Internal Revenue Service;

(3) To request the Department of Labor to submit a comment to the Service on behalf of the interested parties; and

(4) To submit written comments to the Service on matters with respect to which the Department of Labor was requested to comment but declined.

02 Comments submitted by interested parties must be received by the Key District Director by the 45th day after the date on which the application for determination is received by the Key District Director (see sections 16.03 and 16.04 for filing deadlines where the Department of Labor has been requested to comment). Such comments must be in writing, signed by the interested parties or by an authorized representative of such parties (as provided in section 9.01(7) of Rev. Proc. 91-4), addressed to the Key District Director to whom the application for determination was submitted, and contain the following information:

(1) The names of the interested parties making the comments;

(2) The name and taxpayer identification number of the applicant for a determination;

(3) The name of the plan, the plan identification number, and the name of the plan administrator;

(4) Whether the parties submitting the comment are:

(a) Employees eligible to participate under the plan,

(b) Employees with accrued benefits under the plan, or former employees with vested benefits under the plan,

(c) Beneficiaries of deceased former employees who are eligible to receive or are currently receiving benefits under the plan,

(d) Employees not eligible to participate under the plan, and

(5) The specific matters raised by the interested parties on the question of whether the plan meets the requirements for qualification involving sections 401 and 403(a) of the Code, and how such matters relate to the interests of the parties making the comment; and

(6) The address of the interested party submitting the comment (or if a comment is submitted jointly by more than one party, the name and address of a designated representative) to which all correspondence, including a notice of the Service's final determination with respect to qualification, should be sent. (The address designated for notice by the Service will also be used by the Department of Labor in communicating with the parties submitting a request for comment.) The designated representative may be one of the interested parties submitting the comment or an authorized representative. If two or more interested parties submit a single comment and one person is not designated in the comment as the representative for receipt of correspondence, a notice of determination mailed to any interested party who submitted the comment shall be notice to all the interested parties who submitted the comment for purposes of section 7476(b)(5) of the Code.

03 A request to the Department of Labor to submit to the Key District Director a comment pursuant to section 3001(b)(2) of the Employee Retirement Income Security Act of 1974 (ERISA) must be made in accordance with the following procedures.

(1) The request must be received by the Department of Labor by the 25th day after the day the application is received by the Key District Director. However, if the parties requesting the Department to submit a comment wish to preserve the right to comment to the Key District Director in the event the Department declines to comment, the request must be received by the Department by the 15th day after the application is received by the Key District Director.

(2) The request to the Department of Labor to submit a comment to the Key District Director must:

(a) Be in writing;

(b) Be signed as provided in section 16.02 above;

(c) Contain the names of the interested parties requesting the Department to comment and the address of the interested party or designated representative to whom all correspondence with respect to the request should be sent. See also section 16.02(6) above;

(d) Contain the information prescribed in section 16.02(2), (3), (4), above;

(e) Contain the address of the Key District Director to whom the application was or will be submitted;

(f) State the specific matters upon which the Department's comment is sought, as well as how such matters relate to the interested parties making the request; and

     (g) Be addressed as follows:

05 For rules regarding the confidentiality of contents of written comments submitted by interested parties to the Service pursuant to section 16.02 or 16.04, see section 601.201(o)(5) of the Statement of Procedural Rules.

06 For rules regarding the availability to the applicant of copies of all comments on the application submitted pursuant to section 16.01(1), (2), or (3) of this revenue procedure, see section 601.201(o)(5) of the Statement of Procedural Rules.

07 An application for an advance determination, a comment to the Key District Director, or a request to the Department of Labor shall be deemed made when it is received by the Key District Director, or the Department. Notification by the Department that it declines to comment shall be deemed given when it is received by the interested party or designated representative. The notice described in section 18.01 below shall be deemed given when it is given in person, posted as prescribed in the regulations under section 7476 of the Code, or received through the mail. In any case where such an application, comment, request, notification, 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, properly addressed. However, if such an application, comment, request, notification, or notice is not received within a reasonable period from the date of postmark, the immediately preceding sentence shall not apply.

SEC. 17. WHAT ARE THE GENERAL RULES FOR NOTICE TO INTERESTED PARTIES?

01 Notice that an application for an advance determination regarding the qualification of a plan described in sections 401, 403(a), 409 and 4975(e)(7) of the Code is to be made must be given to all interested parties in the manner set forth in section 1.7476-2(c) of the regulations and in accordance with the requirements of this section.

02 When the notice referred to in section 17.01 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 adequately satisfy the notification requirements with respect to a particular group or class of interested parties, the applicant need not cause notice to be given to those groups or classes of interested parties with respect to which the notice requirement was already satisfied merely because, as a result of the resubmission of the application, the time limitations of this subsection would not be met.

03 The notice referred to in section 17.01 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 for a determination;

(4) That an application for a determination as to the qualified status of the plan is to be made to the Service, stating whether the application relates to an initial qualification, a plan amendment, termination, or a partial termination and the address of the Key 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 Key District Director described in section 17.03(4), a comment on the question of whether the plan meets the requirements of sections 401, or 403(a) of the Code; that two or more such persons may join in a single comment or request; and that if such persons request the Department of Labor to submit a comment and that Department declines to do so with respect to one or more matters raised in the request, the persons may still submit a comment to the Key District Director with respect to the matters on which the Department declines to comment. The Pension Benefit Guaranty Corporation (PBGC) may also submit comments. In every instance where there is either a final adverse termination or a distress termination, the Service formally notifies the PBGC for comments;

(8) The specific dates by which a comment to the Key District Director or a request to the Department of Labor must be received in order to preserve the right of comment (see section 16 above);

(9) The number of interested parties needed in order for the Department of Labor to comment; and

(10) Except to the extent that the additional informational material required to be made available by sections 17.05 through 17.09 are included in the notice, a description of a reasonable procedure whereby such additional informational material will be available to interested parties (see section 17.04). (Examples of notices setting forth the above information, in a case in which the additional information required by sections 17.05 through 17.09 will be made available at places accessible to the interested parties, are set forth in Exhibits "I" and "II" attached to this Revenue Procedure.)

04 The procedure referred to in section 17.03(10), whereby the additional informational material required by sections 17.05 through 17.09 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, 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 92nd day after the day the notice of final determination is mailed to the applicant. Reasonable charges to interested parties for copying and/or mailing such additional informational material are permissible.

05 Unless provided in the notice, or unless section 17.06 applies, there shall be made available to interested parties under a procedure described in section 17.04:

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

(2) The application for determination.

06 If there would be less than 26 participants in the plan, as described in the application (including, as participants, former employees with vested benefits under the plan, beneficiaries of deceased former employees currently receiving benefits under the plan, and employees who would be eligible to participate upon making mandatory employee contributions, if any), then in lieu of making the materials described in section 17.05 available to interested parties who are not participants (as described above), there may be made available to such interested parties a document containing the following information:

(1) A description of the plan's requirements respecting eligibility for participation and benefits and the plan's benefit formula;

(2) A description of the provisions providing for nonforfeitable benefits;

(3) A description of the circumstances which may result in ineligibility, or denial or loss of benefits;

(4) A description of the source of financing of the plan and the identity of any organization through which benefits are provided;

(5) A description of any optional forms of benefits described in section 411(d)(6) of the Code which have been reduced or eliminated by plan amendment;

(6) Whether the applicant is claiming in the 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. However, once an interested party or designated representative receives a notice of final determination, the applicant must, upon request, make available to such interested party (whether or not the plan has less than 26 participants) an updated copy of the plan and related trust agreement (if any) and the application for determination.

07 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 Service. Accordingly, such information should not be included in any of the material required by section 17.05 or 17.06 to be available to interested parties. There may be excluded from such material the 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.

08 Unless provided in the notice, there shall be made available to interested parties under a procedure described in section 17.04, any additional document dealing with the application which is submitted by or for the applicant to the Service, or furnished by the Service to the applicant; provided, however, if there would be less than 26 participants in the plan as described in the application (including, as participants, former employees with vested benefits under the plan, beneficiaries of deceased former employees currently receiving benefits under the plan, and employees who would be eligible to participate upon making mandatory employees contributions, if any), such additional documents need not be made available to interested parties who are not participants (as described above) until they, or their designated representative, receive a notice of final determination. 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.

09 Unless provided in the notice, there shall be made available to all interested parties under a procedure described in section 17.04 the material described in sections 16.02 through 16.07 above.

SEC. 18. WHAT ARE THE SPECIAL NOTICE RULES FOR CERTAIN MASTER AND PROTOTYPE PLANS, AND REGIONAL PROTOTYPE PLANS?

01 An employer who adopts or amends a master and prototype plan or regional prototype plan for which no determination will be issued (as described in section 7.05 above) must comply with the requirements for notification of interested parties described in section 17 above, except as otherwise provided by this section.

02 Reference in section 17.02 above to the date an application for determination is made should be read as a reference to the date that is 30 days after the date a master or prototype plan, or regional prototype plan described in section 7.05 above is adopted or amended.

03 The notice referred to in section 17.01 above must be in writing and contain the following information:

(1) The name of the plan sponsor, if any;

(2) The name and taxpayer identification number of the plan adopter;

(3) The information described in sections 17.03(1), (2), (5), (6), (7), (9), and (10) above; and

(4) The specific dates by which a comment to the Key District Director, or a request to the Department of Labor, must be received in order to preserve the right of comment. (See section 16 above. References in section 16 above to the date an application for determination is made will be read as a reference to the date that is 30 days after the date a plan described in section 7.05 above is adopted or amended.)

04 The procedure described in section 17.04 above, whereby additional informational material as described in sections 17.05 through 17.09 above will (to the extent not included in the notice) be made available to interested parties need only be made available until such time as the Service notifies the adopter of the plan pursuant to section 7.05(5) above that no determination letter need be requested, or, if the plan's adopter receives no notice from the Service, 120 days from the date the plan was adopted.

05 The reference to the application for determination in section 17.05(2) above is not applicable to plans described in section 7.05 above.

06 In determining the number of plan participants for purposes of section 17.06 above, the number of plan participants is to be determined as though an application for determination were to be made. The provisions of section 17.06(5) above are not applicable to plans described in section 7.05 above.

07 Information of the type described in section 6104(a)(1)(D) of the Code should not be included in the additional informational material made available pursuant to a procedure described in section 17.04 above.

08 Unless provided in the notice, there shall be made available to interested parties under a procedure described in section 17.04 above any additional document dealing with the adoption of the plan described in section 7.05 above which is submitted by or for the plan's adopter to the Service, or furnished by the Service to the plan's adopter; provided however, if there would be less than 26 participants in the plan (as determined by sections 17.06 above and 18.06) such additional documents need not be made available to interested parties who are not participants (as described above) until the earlier of the date the Service notifies the plan's adopter, pursuant to section 7.05(5) above, that no determination letter request need be made, 120 days from the date the plan was adopted, or, if the Service notifies the plan's adopter that a determination letter should be requested, the date a final determination is made. The plan's adopter 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 documents.

09 Unless provided in the notice, there shall be made available to all interested parties under a procedure described in section 17.04 above the material described in sections 16.02, 16.03 and 16.04 above, except that interested parties must be informed that any references in such sections to the date an application for determination is made should be read as references to the date that is 30 days from the date a plan described in section 5.05 above is adopted or amended.

PART III. PROCESSING DETERMINATION LETTER REQUESTS

SEC. 19. HOW DOES THE SERVICE HANDLE DETERMINATION LETTER REQUESTS?

01 Oral advice.

(1) The Service does not issue determination letters on oral requests. However, personnel in the Key District Offices ordinarily will discuss with taxpayers or their representatives inquiries regarding: substantive tax issues; whether the Service will issue a determination letter on particular issues; and questions relating to procedural matters about submitting determination letter requests. Any discussion of substantive issues will be at the discretion of the Service on a time available basis, will not be binding on the Service, and cannot be relied upon as a basis of obtaining retroactive relief under the provisions of section 7805(b) of the Code. A taxpayer may seek oral technical assistance from a Taxpayer Service Representative in a district office or Service Center when preparing a return or report, under established procedures. Oral advice is advisory only, and the Service is not bound to recognize it in the examination of the taxpayer's return.

(2) The advice or assistance furnished, whether requested by personal appearance, telephone, or correspondence, except as otherwise provided in section 18.02, will be limited to general procedures, or will direct the inquirer to source material, such as pertinent Code provisions, regulations, revenue procedures, and revenue rulings that may aid the inquirer in resolving the question or problem.

02 A Key District Director may grant a conference upon written request from a taxpayer or his representative, provided the request shows that a substantive plan, amendment, etc., has been developed for submission to the Service, but that special problems or issues are involved, and the Key District Director concludes that a conference would be warranted in the interest of facilitating review and determination when the plan, etc., is formally submitted.

03 Administrative Record

(1) In the case of a request for a determination letter, the determination of the Key District Director or the Appeals office on the qualification or non-qualification of the retirement plan shall be based solely upon the facts contained in the administrative record. The administrative record shall consist of the following:

(a) The request for determination, the retirement plan and any related trust instruments, and any written modifications or amendments made by the applicant during the proceedings within the Service;

(b) All other documents submitted to the Service by, or on behalf of, the applicant with respect to the request for determination;

(c) All written correspondence between the Service and the applicant with respect to the request for determination and any other documents issued to the applicant from the Service;

(d) All written comments submitted to the Service pursuant to sections 16.01(1), (2), and (3) above, and all correspondence relating to comments submitted between the Service and persons (including the Pension Benefit Guaranty Corporation and the Department of Labor) submitting comments pursuant to sections 16.01(1), (2), and (3) above;

(e) In any case in which the Service makes an investigation regarding the facts as represented or alleged by the applicant in the request for determination or in comments submitted pursuant to sections 16.01(1), (2), and (3) above, a copy of the official report of such investigation;

(2) The administrative record shall be closed upon the earlier of the following events:

(a) The date of mailing of a notice of final determination by the Service with respect to the application for determination; or

(b) The filing of a petition with the United States Tax Court seeking a declaratory judgment with respect to the retirement plan.

(3) Any oral representation or modification of the facts as represented or alleged in the application for determination or in a comment filed by an interested party, which is not reduced to writing shall not become a part of the administrative record and shall not be taken into account in the determination of the qualified status of the retirement plan by the Key District Director or the Appeals office.

04 In the case of final determination, the notice of final determination

(1) shall be the letter issued by the Key District Director or the Appeals office, which states that the applicant's plan satisfies the qualification requirements of the Code. The favorable determination letter will be sent by certified or registered mail where either an interested party, the Department of Labor, or the Pension Benefit Guaranty Corporation has commented on the application for determination.

(2) shall be the letter issued, by certified or registered mail, by the Key District Director or the Appeals office subsequent to a letter of proposed determination, stating that the applicant's plan fails to satisfy the qualification requirements of the Code.

05 The Key District Director or the Appeals office will send the notice of final determination to the applicant, to the interested parties who have previously submitted comments on the application to the Service (or to the persons designated by them to receive such notice), to the Department of Labor in the case of a comment submitted by the Department, and to the Pension Benefit Guaranty Corporation if it has filed a comment.

06 Following are the 7 Key District Offices that issue determination letters and the areas covered by each:

IRS DISTRICTS COVERED

Central Region

Cincinnati, Cleveland, Detroit, Indianapolis, Louisville, and Parkersburg

Mid-Atlantic Region

Baltimore (which includes the District of Columbia and Office of International Operations), Newark, Philadelphia, Pittsburgh, Richmond, and Wilmington

Midwest Region

Aberdeen, Chicago, Des Moines, Fargo, Helena, Milwaukee, Omaha, St. Louis, St. Paul, and Springfield

North-Atlantic Region

Albany, Augusta, Boston, Brooklyn, Buffalo, Burlington, Hartford, Manhattan, Portsmouth, and Providence

Southeast Region

Atlanta, Birmingham, Columbia, Fort Lauderdale, Greensboro, Jackson, Jacksonville, Little Rock, Nashville, and New Orleans

Southwest Region

Albuquerque, Austin, Cheyenne, Dallas, Denver, Houston, Oklahoma City, Phoenix, Salt Lake City, and Wichita

Western Region

Honolulu, Laguna Niguel, Las Vegas, Los Angeles, and San Jose

San Francisco and Sacramento

Anchorage, Boise, Portland, and Seattle

SEC. 20. EXHAUSTION OF ADMINISTRATIVE REMEDIES

01 For purpose of section 7476(b)(3) of the Code, a petitioner shall be deemed to have exhausted the administrative remedies available within the Service upon the completion of the steps described in sections 20.02, 20.03, or 20.04, subject, however, to section 20.05. If applicants, interested parties, or the Pension Benefit Guaranty Corporation do not complete the applicable steps described below, they will not have exhausted their respective available administrative remedies as required by section 7476(b)(3) and will, thus, be precluded from seeking declaratory judgment under section 7476 except to the extent that section 20.05(2) or 20.06 applies.

02 In the case of an applicant, with respect to any matter relating to the qualification of a plan, the steps referred to in section 20.01 are:

(1) Filing a completed application with the appropriate Key District Director pursuant to this revenue procedure;

(2) Complying with the requirements pertaining to notice to interested parties as set forth in this revenue procedure, and section 1.7476-2 of the regulations; and,

(3) Appealing to the Appeals office pursuant to paragraph 601.201(o)(6) of the Statement of Procedural Rules, in the event of a notice of proposed adverse determination issued by the Key District Director.

03 In the case of an interested party or the Pension Benefit Guaranty Corporation, the steps referred to in section 20.01 are, with respect to any matter relating to the qualification of the plan. submitting to the Key District Director a comment raising such matter in accordance with section 16.01(1) above, or requesting the Department of Labor to submit to the Key District Director a comment with respect to such matter in accordance with section 16.01(2) and, if the Department of Labor declines to comment, submitting the comment in accordance with section 16.01(3) above, so that it may be considered by the Service through the administrative process.

04 An applicant, an interested party, or the Pension Benefit Guaranty Corporation shall in no event be deemed to have exhausted administrative remedies prior to the earlier of:

(1) The completion of those steps applicable to each as set forth in sections 20.01 or 20.03, which constitute their administrative remedies; or,

(2) The expiration of the 270 day period described in section 7476(b)(3) of the Code, which period shall be extended in a case where there has not been a completion of all the steps referred to in section 20.01(1) and the Service has proceeded with due diligence in processing the application for determination.

05 The step described in section 20.03(3) will not be considered completed until the Service has had a reasonable time to act upon the appeal.

06 The step described in section 20.02(3) will not be available or necessary with respect to any issue on which technical advice has been obtained from the National Office.

SEC. 21. WHAT EFFECT WILL AN EMPLOYEE PLAN DETERMINATION LETTER HAVE?

01 A determination letter issued pursuant to this revenue procedure contains only the opinion of the Service as to the qualification of the particular plan involving the provisions of sections 401 and 403(a) of the Code and the status of a related trust, if any, under section 501(a). Such a determination letter is based on the facts presented to the Service in connection with the application for the determination letter and may not be relied upon after a change in material fact or the effective date of a change in law, except as provided. For example, a determination letter issued pursuant to this revenue procedure may not be relied upon after a significant change in plan coverage resulting from the operation of the plan. The Service may determine, based on the application form, the extent of review of the plan document. Failure to disclose a material fact or misrepresentation of a material fact may adversely affect the reliance which would otherwise be obtained by through the issuance by the Service of a favorable determination letter. Similarly, failure to accurately provide any of the information called for on any form required by this revenue procedure may result in no reliance.

02 Determination letters issued on amendments to plans and trusts under this revenue procedure will merely express an opinion whether the amendment, in and of itself, affects the existing status of the plan's qualification and the exempt status of the related trust. In no event should such a determination letter be construed as an opinion on the qualification of the plan as a whole and the exempt status of the related trust as a whole.

03 Except as otherwise provided in this section, determination letters referred to in sections 21.01 and 21.02 are governed, generally, by the provisions of sections 12 and 13 of Rev. Proc. 91- 4.

04 The prior qualification of a plan as adopted by an employer will not be considered to be adversely affected by the publication of a revenue ruling, a revenue procedure, or an administrative pronouncement within the meaning of section 1.661(b)(2) of the Income Tax Regulations where:

(1) The plan was the subject of a favorable determination letter and the request for that letter contained no misstatement or omission of material facts;

(2) The facts subsequently developed are not materially different from the facts on which the determination letter was based;

(3) There has been no change in the applicable law; and

(4) The employer that established the plan acted in good faith in reliance on the determination letter.

However, all such plans must be amended to comply with the published revenue ruling for subsequent years. The conforming amendment to an individually designed plan must be adopted before the end of the first plan year that begins after the revenue ruling, revenue procedure, or administrative pronouncement is published in the Internal Revenue Bulletin and must be effective, for all purposes, not later than the first day of the first plan year beginning after the revenue ruling is published. For the rule as to the conforming amendment to a master or prototype plan, see section 14 of Rev. Proc. 89-9 and Rev. Proc. 89-13.

05 While a favorable determination letter may serve as a basis for determining deductions for employer contributions thereunder, it is not to be taken as an indication that contributions are necessarily deductible as made. This latter determination can be made only upon an examination of the employer's tax return, in accordance with the limitations, and subject to the conditions of, section 404 of the Code.

SEC. 22. EFFECT ON OTHER DOCUMENTS

01 The following revenue procedures are hereby modified:

(1) Rev. Proc. 75-48, 1975-2 C.B. 503

(2) Rev. Proc. 85-43, 1985-2 C.B. 501

(3) Rev. Proc. 90-20, 1990-1 C.B. 117

02 The following revenue procedures are hereby superseded:

(1) Rev. Proc. 80-30, 1980-1 C.B. 685;

(2) Rev. Proc. 83-14, 1983-1 C.B. 675;

(3) Rev. Proc. 88-9. 1988-1 C.B. 634.

SEC. 23. EFFECTIVE DATE

This revenue procedure is effective February 4, 1991, the date of its publication in the Internal Revenue Bulletin.

DRAFTING INFORMATION

The principal authors of this revenue procedure are Sanford Karo of the Employee Plans Technical and Actuarial Division, and Ola Josey of the Employee Plans Operations Division. For further information regarding this revenue procedure, contact the Employee Plans Technical and Actuarial telephone assistance service between the hours of 1:30 and 4:00 pm Eastern time, Monday through Friday, on (202) 566-6783 (not a toll-free call). Mr. Karo can be contacted by calling (202) 343-0729 (also not a toll-free call). Ms. Josey can be contacted by calling (202) 566-6876 (also not a toll-free call).

EXHIBITS I AND II: SAMPLE NOTICES TO INTERESTED PARTIES

Exhibit I and Exhibit II, set forth below, may be used to satisfy the requirements of section 17 and section 18 of this revenue procedure.

     1. Notice To: ____________________ (describe class or classes of

10. You have the right to submit to the Key District Director, at the above address, either individually or jointly with other interested parties, your comments as to whether this plan meets the qualification requirements of the Internal Revenue Code.

You may instead, individually or jointly with other interested parties, request the Department of Labor to submit, on your behalf, comments to the Key District Director regarding qualification of the plan. If the Department declines to comment on all or some of the matters you raise, you may, individually, or jointly if your request was made to the Department jointly, submit your comments on these matters directly to the Key District Director.

REQUESTS FOR COMMENTS BY THE DEPARTMENT OF LABOR

11. The Department of Labor may not comment on behalf of interested parties unless requested to do so by the lesser of 10 employees or 10 percent of the employees who qualify as interested parties. The number of persons needed for the Department to comment with respect to this plan is _________________. If you request the Department to comment, your request must be in writing and must specify the matters upon which comments are requested, and must also include:

(1) the information contained in items 2 through 5 of this Notice; and

(2) the number of persons needed for the Department to comment.

A request to the Department to comment should be addressed as follows:

     Deputy Assistant Secretary

12. Comments submitted by you to the Key District Director must be in writing and received by him by __________________. However, if there are matters that you request the Department of Labor to comment upon on your behalf, and the Department declines, you may submit comments on these matters to the Key District Director to be received by him within 15 days from the time the Department notifies you that it will not comment on a particular matter, or by _____________, whichever is later, but not after _________. A request to the Department to comment on your behalf must be received by it by _____________ if you wish to preserve your right to comment on a matter upon which the Department declines to comment, or by _____________ if you wish to waive that right.

ADDITIONAL INFORMATION

13. Detailed instructions regarding the requirements for notification of interested parties may be found in sections 16, 17, and 18 of Revenue Procedure 91-10. Additional information concerning this application (including, where applicable, an updated copy of the plan and related trust; the application for determination; any additional documents dealing with the application that have been submitted to the IRS; and copies of section 16 of Revenue Procedure 91-10 is available at ______________________ during the hours of __________________ for inspection and copying. (There is a nominal charge for copying and/or mailing.)

     1. Notice To: __________________________

13. You have the right to submit to the Key District Director, at the above address, either individually or jointly with other interested parties, your comments as to whether this plan meets the qualification requirements of the Internal Revenue Code. You may instead, individually or jointly with other interested parties, request the Department of Labor to submit, on your behalf, comments to the Key District Director regarding qualification of the plan. If the Department declines to comment on all or some of matters you raise, you may, individually, or jointly, submit your comments on these matters directly to the Key District Director.

REQUESTS FOR COMMENTS BY THE DEPARTMENT OF LABOR

14. The Department of Labor may not comment on behalf of interested parties unless requested to do so by the lesser of 10 employees or 10 percent of the employers who qualify as interested parties. The number of persons needed for the Department to comment with respect to this plan is _________________. If you request the Department to comment, your comment must be in writing and must specify the matters upon which comments are requested, and must also include:

(1) the information contained in items 2 through 9 of this Notice; and

(2) the number of persons needed for the Department to comment. A request to the Department to comment should be addressed as follows:

     Deputy Assistant Secretary

ADDITIONAL INFORMATION

     16. Detailed instructions regarding the requirements for