Form 4461, Application for Approval of Master and Prototype Defined Contribution Plan.

Form 4461–A, Application for Approval of Master and Prototype Defined Benefit Plan.

Form 4461-B, Application for Approval of Master and Prototype or Volume Submitter Plans, Mass Submitter Adopting Sponsor or Practitioner.

Form 5621, Technical Analysis Control Sheet is used by the Technical Screener to identify issues for review by the Specialist. The Specialist should complete Form 5621 upon closing the case if the case is not closed on merit by the screener, or the case is assigned directly to the Specialist.

Form 5621 has seven parts:

The Specialist should use Form 5464-A, Case Chronology Record, to keep a complete log of case actions and to assess case progress.

Management may use the form to monitor case management and time utilization.

Do NOT include on Form 5464-A technical or procedural issues and conclusions, which belong on Form 5621,Technical Analysis Control Sheet, or other workpapers.

Whenever you work on the case, enter on the Form 5464-A:

Reviewers may sign Form 5464-A for cases reviewed.

EP Alert Guidelines (Worksheets) are organized by subject matter.

Each worksheet has an Explanation package with guidance and citations to the applicable IRC and Treasury Regulation sections.

Each worksheet has numbers in brackets at the end of each item that refer to deficiency paragraphs that can be used by the Specialist to solicit amendments to a plan that satisfy the applicable IRC requirements. The Deficiency Paragraphs are not mandatory and may need to be tailored to meet specific plan situations.

The Alert Guidelines (also referred to as worksheets) are updated to reflect the cumulative list requirements for each cycle period, i.e. cycle A-E. Specialists should use the Alert Guidelines for the applicable cycle period for each case.

Following is a list of the Alert Guidelines.

Quality Assurance Staff issues Quality Assurance Bulletins (QABs) to provide detailed technical and procedural guidance to Specialists processing EP determination letter applications. Quality Assurance Bulletins are published on both the IRS Internet website and on the Quality Assurance Staff page of the Intranet. See Exhibit 7.11.1-4 for a list of bulletins that are current at the time of publication of this manual.

A complete analysis is an in-depth review of all plan provisions which affect the plan’s qualification under the Code.

Plans that generally require complete analysis are multiple employer, multi-employer, cash balance, interested party comment, large case listing, over 5000 participants (unless VS or Master & Prototype plans), foreign, governmental, 401(h)/420, non-electing church, new comparability, complex issue, leased employee ruling, partial termination, and affiliated service group ruling.

Specialists must use relevant worksheets to document their analysis of plan provisions that are the subject of interested party comments.

Issue only analysis requires an in-depth review of limited plan provisions affecting plan qualification. Some plans, because of their nature, do not require all plan provisions to be analyzed. If the Technical Screener classifies the application as an issue only assignment, only those issues are analyzed unless the Specialist recognizes major problems. Then, with group manager approval, the scope of the review may be expanded.

For collectively bargained plans file on Form 5300, the coverage and discrimination worksheets are generally inapplicable.

For plans assigned as Issue Only analysis with a prior FDL, consider:

If you recognize major problems, obtain group manager approval to expand the scope beyond issues identified by the Technical Screener.

FDLs may contain a special caveat when a letter is issued conditioned upon the execution of proposed amendments or proposed restatements.

It is not necessary to secure a copy of the executed amendments subsequent to issuing the favorable determination letter. Follow-up action to determine whether the proposed amendments have been executed will be accomplished during a later examination of the plan. At that time, it will be determined if the amendments were properly executed as had been requested, and a copy will be secured.

Rev. Proc. 2008-6, explains application requirements, such as:

Sometimes the taxpayer/representative fails to provide required items for a completed application.

Substantial plan document omissions may also constitute an incomplete application, particularly if the result is inconsistencies with application forms and schedules.

Follow QAB 2001-3, Return of Application for Lack of Response, for procedures and sample letters. The following supplements this QAB:

If a response is received to the Letter 1012, the new control date of the resubmitted case is based on the date received. The Specialist should use the original control date for purposes of determining relief under IRC 401(b) if a completed resubmission package arrives within 30 days from the date of the Letter 1012. If however, the resubmitted case is received after the 30 day period from the date of the Letter 1012, the Specialist will collect another user fee.

Specialists should return individually designed plans (other than terminations) as incomplete if they do not comply with existing qualification requirements, and are so technically deficient they cannot be reviewed in a reasonable amount of time. Issue Letter 2234 (DO/CG).

When returning the entire submission:

If a response is received to the Letter 2234, the new control date of the resubmitted case is based on the date received. The Specialist should use the original control date for purposes of determining relief under IRC 401(b) if a completed resubmission package arrives within 30 days from the date of the Letter 2234. If however, the resubmitted case is received after the 30 day period from the date of the Letter 2234, the Specialist will collect another user fee.

Notice 2001–42, 2001-2 C.B. 70, provided a remedial amendment period under IRC 401(b) , ending no earlier than the end of the 2005 plan year, in which any needed retroactive remedial plan amendments for EGTRRA must be adopted (the EGTRRA remedial amendment period). The availability of the EGTRRA remedial amendment period was conditioned on the timely adoption of required good faith EGTRRA plan amendments. In general, a good faith EGTRRA plan amendment is adopted timely if it is adopted by the later of the end of the plan year that includes the effective date of the EGTRRA change or the end of the plan's GUST remedial amendment period. However, an employer's ability to rely on a favorable determination letter will not be adversely affected by the timely adoption of good faith EGTRRA plan amendments. See Notice 2001–42 for further details.

Rev. Proc. 2004-25, 2004-1 C.B. 791, extended the remedial amendment period with respect to disqualifying provisions described in Treas. Reg. 1.401(b)-1(b)(1) that are put into effect (in the case of new plans) or adopted (in the case of existing plans) after December 31, 2001, to the end of the EGTRRA remedial amendment period. The effect of Rev. Proc. 2004-25 is to ensure that plan sponsors do not need to apply for more than one determination letter during the EGTRRA remedial amendment period simply because they have put a plan into effect or adopted voluntary plan amendments after December 31, 2001. The revenue procedure did not extend any other existing plan amendment or determination letter submission deadlines, such as the deadline for adoption of good faith plan amendments for EGTRRA or the final IRC 401(a)(9) regulations.

In Rev. Proc. 2005-66, 2005-2 C.B. 509, the Service established a system of cyclical remedial amendment periods for qualified plans as described in IRM 7.11.1.18.1 (1) above, and provided deadlines for the timely adoption of interim or discretionary amendments to plans. The new cycle system has the effect of extending the EGTRRA remedial amendment period until the plan's appropriate cycle.

In Rev. Proc. 2005-16, 2005-1 C.B. 674, the Service announced the opening of the initial six-year remedial amendment cycle for defined contribution pre-approved plans. As of February 17, 2005, the Service began to accept applications for opinion and advisory letters for defined contribution pre-approved plans which take into account the qualification requirements set forth in the 2004 Cumulative List. The revenue procedure also contains the rules for issuing opinion and advisory letters for pre-approved plans.

In Notice 2005-101, 2005-2 C.B. 1219, the Service published the 2005 Cumulative List of Changes in Plan Qualification Requirements, which contains qualification requirements for single employer individually designed defined contribution plans (including employee stock ownership plans) and defined benefit plans, to be used primarily by plan sponsors of such plans that fall in Cycle A.

The administrative record consists of:

Since September 2, 1974 (ERISA), the public has been able to inspect and obtain copies of certain parts of the administrative file.

IRC §6104(a)(1)(B), (C), and (D) govern the material open to public inspection. Examples of documents disclosable under IRC § 6104(a)(1)(B)(iv) include, but are not limited to:

Treas. Reg. 26 CFR 301.6104 contains the IRS interpretation of the provisions and procedures for making IRC § 6104 information available for public inspection.

IRM 11.3.10, Disclosure of Official Information, Employee Plans Information, provides details on public disclosure.

Material open to public inspection is kept on the right side of the administrative file. Non-disclosable items are kept on the left side. See QAB 2004-1, Case File Assembly.

Federal Records Center retains the administrative files of ongoing and terminated plans for ten years.

Administrative files may be retired to the Federal Record Center immediately after closing the DL case and purging unnecessary materials, unless:

Manager, EP Determinations, may decide that:

To obtain a copy of the administrative file from the Federal Records Center complete a request form (internal use only) that can be found on the shared server.

An applicant for a DL may seek a declaratory judgment 270 days after the case's control date.

If applicants, interested parties, or the PBGC do not complete the applicable steps described below:

they will not have exhausted their respective available administrative remedies as required by IRC § 7476(b)(3) and will, thus, be precluded from seeking declaratory judgment under IRC § 7476.

Consideration of relief under IRC § 7805(b) will be included as one of the applicant's steps in exhausting administrative remedies. This will be the case only if the applicant requests EP Determinations to seek technical advice from EP Technical on the applicability of such relief. The applicant's request must be made in writing according to the procedures for requesting technical advice. See QAB 2005-2 Request for Technical Advice Memorandum (TAM) and Technical Expedited Advice Memorandum (TEAM).

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

The ATAT group has jurisdiction over several listed transactions including but not limited to:

When a Listed Transaction is identified during a determination letter request, the issue should be raised and developed in accordance with the procedures below:

An employer that is subject to IRC § 414(m) or (n) may request a determination letter under the following circumstances:

Generally, a determination letter will cover IRM § 414(m) or IRM § 414(n) only if the employer requests such determination, and submits with the determination letter application the information specified in Section 14 of Rev. Proc. 2008-6.

Form 5300(with Schedule Q) is submitted for a request on affiliated service group status or leased employee status. Form 5307 cannot be used for this purpose.

If the employer requests a ruling under IRC § 414(m) or IRC § 414(n) the determination letter issued to the employer will state that questions arising under IRC § 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 IRC § 414(m) or § 414(n)a determination letter does not apply to any qualification issue arising by reason of such provisions. See QAB 2006-4,Caveats under the Staggered Remedial Amendment Period for Individually Designed Plans, for which caveats to include on the DL.

An employer that has adopted a pre-approved plan and wants a determination as to the effect of IRC § 414(m) or § 414(n) on the qualified status of its plan must attach the information required by section 14.09 or section 14.10 of Rev. Proc. 2008-6 to Form 5300 and submit the information, and any other materials necessary to make a determination.