|
These frequently asked questions and answers provide general information and should not be cited as any type of legal authority. They provide the user with information responsive to general inquiries. Because these answers to not apply to every situation, yours may require additional research.
1. I restated my pre-approved plan document for EGTRRA but filed a request for a new opinion or advisory letter after the end of the submission period, that is, after January 31, 2006. When can I expect to receive my new opinion or advisory letter and when will employers have to adopt my plan to be within the six-year cycle?
Opinion and advisory letters for “late-filed” restated
pre-approved plans will be issued after letters have been issued for timely
submitted plans. Regardless of when the letters are issued, employers must adopt
the approved plans by no later than April 30, 2010, to be within the six-year
cycle.
2. I created a new pre-approved plan document after the end of the submission period and filed an application for an opinion or advisory letter at that time. When can I expect to receive my opinion or advisory letter, and will employers that adopt my plan be within the six-year cycle?
Opinion and advisory letters for new plans created and
submitted after the end of the submission period will be issued after letters
have been issued for timely submitted plans. Employers that timely adopt these
plans will have retroactive reliance. See Revenue Procedure 2008-56
3. I am an adopter of a volume submitter plan and I wish to make certain changes to the pre-approved document. When I file a determination letter application, must I incorporate these changes in the pre-approved plan document or may I make the changes as separate amendments to the plan?
Regardless of whether the application is filed on
Form 5307 or is required to be filed on Form 5300 (because, for example, the
changes are very extensive), the changes to the pre-approved volume submitter
plan may be either incorporated into the pre-approved document or made as
separate “tack-on” amendments to the plan. If the changes are incorporated into
the document, the application must also include a list describing the changes.
Return to List of FAQs
4. I am an adopter of an M&P plan and I wish to make certain changes to the pre-approved documents, other than choosing among options in the adoption agreement and amending the plan in the manner described in sections 5.02 and 19.03 of Rev. Proc. 2005-16. When I file a determination letter application, may I incorporate these changes, as well as interim amendments for changes in qualification requirements on post-2004 Cumulative Lists, in the pre-approved plan document or should I these adopt these changes and interim amendments separately?
The changes and interim amendments must be in the
form of a separate amendment to the plan and not incorporated into the
underlying M&P plan documents. See section 19.05 of Rev. Proc. 2007-44.
5. I am filing Form 5310 to terminate my EGTRRA-approved M&P or volume submitter plan. Must I include copies of interim amendments with my application?
Yes. The application must include copies of all interim
amendments adopted since the plan’s last determination letter, including interim
amendments required to bring the plan into compliance with changes in the
qualification requirements that are effective as of the proposed date of
termination.
6. I have adopted discretionary plan amendments since my last determination letter. Should I include copies of these amendments when I apply for a new determination letter on my pre-approved plan?
Yes. Although you may not be required to submit EGTRRA good
faith and interim amendments with your application, you should include copies of
discretionary amendments you adopted, in addition to the restated plan or
completed adoption agreement.
7. I will be submitting an application for a determination letter on my pre-approved defined contribution plan. I understand that the Service’s review of my application will be based on the 2004 Cumulative List in Notice 2004-84 and will not take into account subsequent changes in the qualification requirements. If I have not timely adopted interim amendments for changes in the qualification requirements subsequent to the 2004 Cumulative List, can this affect my reliance on a favorable determination letter?
Because your determination letter will not take into account
changes in the plan qualification requirements subsequent to the 2004 Cumulative
List, the failure to timely adopt interim amendments for subsequent changes may
jeopardize your plan’s qualified status beginning with the earliest effective
date of those changes, which may be before the date of your favorable letter.
Return to List of FAQs
8. If I file a determination letter application for my pre-approved defined contribution plan by April 30, 2010, and the Service determines that additional remedial amendments are needed, will I have time to adopt the amendments?
Yes. The remedial amendment period will not end before the
expiration of 91 days following issuance of the determination letter.
9. I maintain an individually designed defined contribution plan which I have timely amended in good faith for EGTRRA and subsequent guidance. Before the 5-year remedial amendment cycle for my plan ended, I signed Form 8905, Certification of Intent to Adopt Pre-approved Plan, to evidence my intent to replace my individually designed plan with an M&P plan, once the latter received an EGTRRA opinion letter. I have now decided to retain my plan as an individually designed plan, rather than adopt the M&P plan as I had previously intended. If I need to adopt any remedial amendments to my plan for EGTRRA and subsequent guidance, when will the remedial amendment period for adopting those amendments end?
April 30, 2010. However, if you file an application for a
determination letter by that date, the remedial amendment period will not end
before the expiration of 91 days following the issuance of the determination
letter. This answer would be the same if you had signed a Form 8905 intending to
adopt a volume submitter plan rather than an M&P plan and subsequently decided
to retain your plan as an individually designed plan. Return to List of FAQs
10.
I am an adopting employer of a pre-approved defined benefit plan. I would like to obtain a determination from the Service as to whether I am a member of an affiliated service group. Although the sponsor of my pre-approved plan has applied to the Service for an opinion or advisory letter on the EGTRRA restatement of the plan, it is expected that the EGTRRA letter will not be issued for some time. Can I obtain a determination at this time as to whether I am a member of an affiliated service group without having to restate my plan for current law, which would in effect make my plan an individually designed plan?
Yes. You may request a
determination of affiliated service group status by filing Form 5300,
Application for Determination for Employee Benefit Plan, and checking the
appropriate box under line 3a. Include a cover letter stating that you are
requesting a GUST determination letter for a pre-approved defined benefit plan
and a determination of affiliated service group status. Also include the
GUST-approved plan document (not the EGTRRA-restated document) and the user fee
for an application filed on Form 5300. The determination letter that is issued
will consider GUST (not EGTRRA) and will include a determination regarding
affiliated service group status. You would follow these procedures if you make
any special ruling request in conjunction with your request for a determination
letter as a pre-approved defined benefit plan adopter, such as for a partial
termination or leased employee determination, prior to the sponsor's receipt of
an EGTRRA approval letter. These procedures will continue in effect until the
Service announces that it will no longer accept applications for GUST
determination letters for pre-approved defined benefit plans. That announcement
will probably be made in late 2009.
Page Last Reviewed or Updated: November 05, 2009
|
