Bulletin No. 2023–51

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HIGHLIGHTS

OF THIS ISSUE

Bulletin No. 2023–51

December 18, 2023

These synopses are intended only as aids to the reader in

identifying the subject matter covered. They may not be

relied upon as authoritative interpretations.

ADMINISTRATIVE

Notice 2023-74, page 1484.

Notice 2023-74 provides that calendar year 2023 will be

regarded as a further transition period for purposes of IRS

enforcement and administration of the minimum reporting

threshold for Form 1099-K, Payment Card and Third Party

Network Transactions. With respect to calendar years beginning before January 1, 2024, a third party settlement organization is not required to report payments in settlement

of third party network transactions with respect to a participating payee unless the amount to be reported exceeds

$20,000 and the number of such transactions with that participating payee exceeds 200.

ADMINISTRATIVE, INCOME TAX

Rev. Proc. 2023-40, page 1553.

This proposed revenue procedure specifies when information

shown on a return in accordance with the applicable forms

and instructions will be an adequate disclosure for purposes

of reducing an understatement of income tax under section

6662(d) and for purposes of avoiding the section 6694(a)

preparer penalty. This revenue procedure updates Rev. Proc.

2022-41, 2022-50 I.R.B. 527, and applies to any income tax

return filed on 2023 tax forms for a taxable year beginning

in 2023, and to any income tax return filed in 2024 on 2023

tax forms for short taxable years beginning in 2024.

EMPLOYEE PLANS

REG-104194-23, page 1558.

This document sets forth a proposed regulation that would

amend the rules applicable to plans that include cash or

deferred arrangements to provide guidance with respect to

long-term, part-time employees. The proposed regulation

reflects statutory changes made by the SECURE Act and the

SECURE 2.0 Act that relate to long-term, part-time employees.

Finding Lists begin on page ii.

The proposed regulation would affect participants in, beneficiaries of, employers maintaining, and administrators of

plans that include cash or deferred arrangements. This document also provides notice of a public hearing.

Rev. Proc. 2023-37, page 1491.

This revenue procedure sets forth the rules regarding qualified pre-approved plans and section 403(b) pre-approved

plans, and combines, conforms, clarifies, and updates

rules for those plans previously set forth in prior revenue

procedures.

INCOME TAX

Rev. Proc. 2023-38, page 1544.

This revenue procedure updates the procedures under

§ 30D(d)(3) of the Internal Revenue Code (Code) for qualified manufacturers to enter into a written agreement with the

Secretary of the Treasury or her delegate (Secretary) under

which such manufacturer agrees to make periodic written

reports to the Secretary providing vehicle identification numbers and other information regarding vehicles eligible for a

clean vehicle credit. Vehicles eligible for the clean vehicle

credit under § 30D of the Code (§ 30D credit), the qualified commercial clean vehicles credit under § 45W of the

Code (§ 45W credit), and the previously-owned clean vehicles

credit under § 25E of the Code (§ 25E credit), generally must

be manufactured by a qualified manufacturer as described

in § 30D(d)(1)(C) and (d)(3). See §§ 45W(c)(1) and 25E(c)

(1)(D)(i). This revenue procedure establishes the procedures

for qualified manufacturers to submit information regarding

vehicles for upfront review by the Department of Energy, to

ensure the vehicles are eligible for the § 30D credit for the

calendar year at issue in accordance with the excluded entities provision of § 30D(d)(7).

Rev. Rul. 2023-23, page 1472.

2023 Base Period T-Bill Rate. The “base period T-bill rate”

for the period ending September 30, 2023 is published as

required by section 995(f) of the Internal Revenue Code.

INCOME TAX, TAX CONVENTION

Rev. Proc. 2023-36, page 1485.

This revenue procedure updates and supersedes Rev. Proc.

2022-35. Ecuador is added to the list of jurisdictions with

which the United States has in effect a relevant information

exchange agreement. Argentina and Kazakhstan are added

to the list of countries with which Treasury and the IRS have

determined it is appropriate to have an automatic exchange

relationship with respect to the information collected under

Treas. Reg. §§ 1.6049-4(b)(5) and 1.6049-8(a).

The IRS Mission

Provide America’s taxpayers top-quality service by helping

them understand and meet their tax responsibilities and

enforce the law with integrity and fairness to all.

Introduction

The Internal Revenue Bulletin is the authoritative instrument

of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service

and for publishing Treasury Decisions, Executive Orders, Tax

Conventions, legislation, court decisions, and other items of

general interest. It is published weekly.

It is the policy of the Service to publish in the Bulletin all substantive rulings necessary to promote a uniform application

of the tax laws, including all rulings that supersede, revoke,

modify, or amend any of those previously published in the

Bulletin. All published rulings apply retroactively unless otherwise indicated. Procedures relating solely to matters of internal management are not published; however, statements of

internal practices and procedures that affect the rights and

duties of taxpayers are published.

Revenue rulings represent the conclusions of the Service

on the application of the law to the pivotal facts stated in

the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices,

identifying details and information of a confidential nature are

deleted to prevent unwarranted invasions of privacy and to

comply with statutory requirements.

Rulings and procedures reported in the Bulletin do not have the

force and effect of Treasury Department Regulations, but they

may be used as precedents. Unpublished rulings will not be

relied on, used, or cited as precedents by Service personnel in

the disposition of other cases. In applying published rulings and

procedures, the effect of subsequent legislation, regulations,

court decisions, rulings, and procedures must be considered,

and Service personnel and others concerned are cautioned

against reaching the same conclusions in other cases unless

the facts and circumstances are substantially the same.

The Bulletin is divided into four parts as follows:

Part I.—1986 Code.

This part includes rulings and decisions based on provisions

of the Internal Revenue Code of 1986.

Part II.—Treaties and Tax Legislation.

This part is divided into two subparts as follows: Subpart A,

Tax Conventions and Other Related Items, and Subpart B,

Legislation and Related Committee Reports.

Part III.—Administrative, Procedural, and Miscellaneous.

To the extent practicable, pertinent cross references to these

subjects are contained in the other Parts and Subparts. Also

included in this part are Bank Secrecy Act Administrative

Rulings. Bank Secrecy Act Administrative Rulings are issued

by the Department of the Treasury’s Office of the Assistant

Secretary (Enforcement).

Part IV.—Items of General Interest.

This part includes notices of proposed rulemakings, disbarment and suspension lists, and announcements.

The last Bulletin for each month includes a cumulative index

for the matters published during the preceding months. These

monthly indexes are cumulated on a semiannual basis, and are

published in the last Bulletin of each semiannual period.

The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate.

December 18, 2023

Bulletin No. 2023–51

Part I

Section 995.—Taxation

of DISC Income to

Shareholders

2023 Base Period T-Bill Rate. The “base period

T-bill rate” for the period ending September 30,

2023, is published as required by section 995(f) of

the Internal Revenue Code.

Rev. Rul. 2023-23

Section 995(f)(1) of the Internal

Revenue Code provides that a shareholder

of a domestic international sales corporation (“DISC”) shall pay interest for

each taxable year in an amount equal to

the product of the “shareholder’s DISCrelated deferred tax liability” for the year

(as defined in section 995(f)(2)) and the

“base period T-bill rate.” Under section

995(f)(4), the base period T-bill rate is “the

annual rate of interest determined by the

Secretary to be equivalent to the average

of the 1-year constant maturity Treasury

yields, as published by the Board of

Governors of the Federal Reserve System,

for the 1-year period ending on September

30 of the calendar year ending with (or

of the most recent calendar year ending

before) the close of the taxable year of the

shareholder.”

The base period T-bill rate for the

period ending September 30, 2023, is 4.93

percent.

Pursuant to section 6622 of the Internal

Revenue Code, interest must be compounded daily. The table below provides

factors for compounding the 2023 base

period T-bill rate daily for any number

of days in the shareholder’s taxable year

(including for a 52-53 week taxable year).

To compute the amount of the interest

charge for the shareholder’s taxable year,

multiply the amount of the shareholder’s

DISC-related deferred tax liability for that

year by the base period T-bill rate factor

corresponding to the number of days in

the shareholder’s taxable year for which

the interest charge is being computed.

Generally, one would use the factor for

365 days. One would use a different factor

only if the shareholder’s taxable year for

which the interest charge is being determined is a short taxable year, if the shareholder uses a 52-53 week taxable year, or

if the shareholder’s taxable year is a leap

year.

For the base period T-bill rates for periods ending in prior years, see Rev. Rul.

2022-21, 2022-47 I.R.B. 468; Rev. Rul.

2021-22, 2021-47 I.R.B. 726; Rev. Rul.

2020-25, 2020-48 I.R.B. 1109; Rev. Rul.

2019-27, 2019-51 I.R.B. 1378; Rev. Rul.

2018-31, 2018-50 I.R.B. 848; and Rev.

Rul. 2017-23, 2017-49 I.R.B. 546.

DRAFTING INFORMATION

The principal author of this revenue

ruling is Kate Kerrigan of the Office of

Associate Chief Counsel (International).

For further information regarding the revenue ruling, contact Ms. Kerrigan at (202)

317-3800 (not a toll-free number).

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

December 18, 2023

0.000135068

0.000270155

0.000405260

0.000540383

0.000675525

0.000810685

0.000945863

0.001081059

0.001216273

0.001351506

0.001486757

0.001622027

0.001757314

0.001892620

0.002027944

1472

Bulletin No. 2023–51

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

Bulletin No. 2023–51

0.002163286

0.002298647

0.002434026

0.002569423

0.002704839

0.002840273

0.002975725

0.003111195

0.003246684

0.003382191

0.003517716

0.003653260

0.003788822

0.003924402

0.004060001

0.004195618

0.004331253

0.004466906

0.004602578

0.004738268

0.004873977

0.005009704

0.005145449

0.005281212

0.005416994

0.005552794

0.005688613

0.005824450

0.005960305

0.006096178

0.006232070

0.006367980

0.006503909

0.006639856

0.006775821

1473

December 18, 2023

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

December 18, 2023

0.006911805

0.007047807

0.007183827

0.007319866

0.007455923

0.007591999

0.007728093

0.007864205

0.008000336

0.008136485

0.008272653

0.008408838

0.008545043

0.008681265

0.008817506

0.008953766

0.009090044

0.009226340

0.009362655

0.009498988

0.009635339

0.009771709

0.009908098

0.010044504

0.010180929

0.010317373

0.010453835

0.010590316

0.010726815

0.010863332

0.010999868

0.011136422

0.011272995

0.011409586

0.011546195

1474

Bulletin No. 2023–51

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

Bulletin No. 2023–51

0.011682823

0.011819470

0.011956135

0.012092818

0.012229520

0.012366240

0.012502979

0.012639736

0.012776512

0.012913306

100

0.013050119

0.013186950

0.013323800

0.013460668

0.013597554

101

102

103

104

105

0.013734459

0.013871383

0.014008325

0.014145286

0.014282265

106

107

108

109

110

0.014419262

0.014556278

0.014693313

0.014830366

0.014967438

111

112

113

114

115

0.015104528

0.015241637

0.015378764

0.015515909

0.015653074

116

117

118

119

120

0.015790256

0.015927458

0.016064677

0.016201916

0.016339173

1475

December 18, 2023

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

December 18, 2023

121

122

123

124

125

0.016476448

0.016613742

0.016751054

0.016888385

0.017025735

126

127

128

129

130

0.017163103

0.017300490

0.017437895

0.017575319

0.017712761

131

132

133

134

135

0.017850222

0.017987702

0.018125200

0.018262716

0.018400252

136

137

138

139

140

0.018537805

0.018675378

0.018812969

0.018950578

0.019088206

141

142

143

144

145

0.019225853

0.019363518

0.019501202

0.019638905

0.019776626

146

147

148

149

150

0.019914365

0.020052124

0.020189901

0.020327696

0.020465510

151

152

153

154

155

0.020603343

0.020741194

0.020879064

0.021016953

0.021154860

1476

Bulletin No. 2023–51

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

Bulletin No. 2023–51

156

157

158

159

160

0.021292786

0.021430731

0.021568694

0.021706675

0.021844676

161

162

163

164

165

0.021982695

0.022120732

0.022258789

0.022396864

0.022534957

166

167

168

169

170

0.022673070

0.022811200

0.022949350

0.023087518

0.023225705

171

172

173

174

175

0.023363911

0.023502135

0.023640378

0.023778639

0.023916920

176

177

178

179

180

0.024055219

0.024193536

0.024331872

0.024470227

0.024608601

181

182

183

184

185

0.024746993

0.024885404

0.025023834

0.025162283

0.025300750

186

187

188

189

190

0.025439235

0.025577740

0.025716263

0.025854805

0.025993366

1477

December 18, 2023

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

December 18, 2023

191

192

193

194

195

0.026131945

0.026270543

0.026409160

0.026547796

0.026686450

196

197

198

199

200

0.026825123

0.026963815

0.027102525

0.027241254

0.027380002

201

202

203

204

205

0.027518769

0.027657554

0.027796358

0.027935181

0.028074023

206

207

208

209

210

0.028212883

0.028351763

0.028490661

0.028629577

0.028768513

211

212

213

214

215

0.028907467

0.029046440

0.029185432

0.029324442

0.029463471

216

217

218

219

220

0.029602520

0.029741586

0.029880672

0.030019776

0.030158900

221

222

223

224

225

0.030298042

0.030437203

0.030576382

0.030715581

0.030854798

1478

Bulletin No. 2023–51

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

Bulletin No. 2023–51

226

227

228

229

230

0.030994034

0.031133289

0.031272562

0.031411855

0.031551166

231

232

233

234

235

0.031690496

0.031829845

0.031969212

0.032108599

0.032248004

236

237

238

239

240

0.032387429

0.032526872

0.032666333

0.032805814

0.032945314

241

242

243

244

245

0.033084832

0.033224369

0.033363925

0.033503500

0.033643094

246

247

248

249

250

0.033782707

0.033922338

0.034061988

0.034201658

0.034341346

251

252

253

254

255

0.034481053

0.034620778

0.034760523

0.034900287

0.035040069

256

257

258

259

260

0.035179870

0.035319690

0.035459529

0.035599387

0.035739264

1479

December 18, 2023

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

December 18, 2023

261

262

263

264

265

0.035879160

0.036019075

0.036159008

0.036298961

0.036438932

266

267

268

269

270

0.036578922

0.036718931

0.036858959

0.036999006

0.037139072

271

272

273

274

275

0.037279157

0.037419261

0.037559384

0.037699525

0.037839686

276

277

278

279

280

0.037979865

0.038120063

0.038260281

0.038400517

0.038540772

281

282

283

284

285

0.038681046

0.038821339

0.038961651

0.039101982

0.039242332

286

287

288

289

290

0.039382701

0.039523089

0.039663496

0.039803922

0.039944366

291

292

293

294

295

0.040084830

0.040225313

0.040365815

0.040506335

0.040646875

1480

Bulletin No. 2023–51

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

Bulletin No. 2023–51

296

297

298

299

300

0.040787433

0.040928011

0.041068608

0.041209223

0.041349858

301

302

303

304

305

0.041490511

0.041631184

0.041771875

0.041912586

0.042053315

306

307

308

309

310

0.042194064

0.042334832

0.042475618

0.042616424

0.042757248

311

312

313

314

315

0.042898092

0.043038955

0.043179837

0.043320737

0.043461657

316

317

318

319

320

0.043602596

0.043743554

0.043884530

0.044025526

0.044166541

321

322

323

324

325

0.044307575

0.044448628

0.044589701

0.044730792

0.044871902

326

327

328

329

330

0.045013031

0.045154179

0.045295347

0.045436533

0.045577739

1481

December 18, 2023

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

December 18, 2023

331

332

333

334

335

0.045718964

0.045860207

0.046001470

0.046142752

0.046284053

336

337

338

339

340

0.046425373

0.046566712

0.046708070

0.046849447

0.046990844

341

342

343

344

345

0.047132259

0.047273694

0.047415147

0.047556620

0.047698112

346

347

348

349

350

0.047839623

0.047981153

0.048122702

0.048264271

0.048405858

351

352

353

354

355

0.048547465

0.048689091

0.048830735

0.048972399

0.049114083

356

357

358

359

360

0.049255785

0.049397506

0.049539247

0.049681006

0.049822785

361

362

363

364

365

0.049964583

0.050106400

0.050248237

0.050390092

0.050531967

1482

Bulletin No. 2023–51

ANNUAL RATE (4.93%), COMPOUNDED DAILY

DAYS

FACTOR

Bulletin No. 2023–51

366

367

368

369

370

0.050673861

0.050815773

0.050957706

0.051099657

0.051241627

371

0.051383617

1483

December 18, 2023

Part III

Revised Timeline

Regarding Implementation

of Amended Section

6050W(e)

Notice 2023-74

SECTION 1. PURPOSE

This notice announces that calendar

year 2023 will be regarded as a further

transition period for purposes of Internal

Revenue Service (IRS) enforcement and

administration with respect to the implementation of the amendments made to the

minimum threshold for reporting by third

party settlement organizations (TPSO)

under section 6050W(e) of the Internal

Revenue Code (Code)1 by the American

Rescue Plan Act of 2021 (ARP), Public

Law 117-2, 135 Stat. 4 (March 11, 2021).

The transition period described in this

notice is intended to facilitate an orderly

transition for TPSO compliance with section 6050W(e) and participating payee

compliance with income tax reporting.

SECTION 2. BACKGROUND

.01 Section 6050W, Returns relating to

payments made in settlement of payment

card and third party network transactions

Section 6050W was added to the Code

by section 3091 of the Housing Assistance

Tax Act of 2008, Div. C of Public Law

110-289, 122 Stat. 2654, 2908, and

requires payment settlement entities to

file an information return for each calendar year with respect to payments made in

settlement of certain reportable payment

transactions. Under section 6050W(a),

the annual information return must set

forth (1) the name, address, and taxpayer identification number (TIN) of the

participating payee to whom payments

were made and (2) the gross amount of

the reportable payment transactions with

respect to that payee in that calendar year.

Section 1.6050W-1(a)(6) defines “gross

amount” to mean the total dollar amount

of the aggregate reportable payment transactions for each participating payee, without regard to any adjustments for credits,

cash equivalents, discount amounts, fees,

refunded amounts, or any other amounts.

Payment settlement entities required

to make annual information returns under

section 6050W do so by filing Form 1099K, Payment Card and Third Party Network

Transactions with the IRS. They are also

required to furnish Form 1099-K to the

participating payee. Forms 1099-K must

be furnished to the participating payees on

or before January 31st of the year following the calendar year for which the return

was made. Forms 1099-K must be filed

with the IRS on or before February 28th

(March 31st if filed electronically) of the

year following the calendar year for which

the return was made. See § 6050W(f);

§ 1.6050W-1(g).

Pursuant to section 6050W(c), section

6050W covers two types of reportable

payment transactions: (1) payment card

transactions and (2) third party network

transactions. Section 6050W(c)(3) states

that a third party network transaction

is any transaction for the provision of

goods or services that is settled through a

third party payment network. Under section 6050W(b) and § 1.6050W-1(c)(2),

a TPSO is the payment settlement entity

that must report third party network transactions – that is, the transactions for goods

or services that are settled through the

TPSO’s third party payment network – on

Form 1099-K.

Section 6050W(b)(3) defines a TPSO

as the central organization that has the

contractual obligation to make payment

to the participating payees of third party

network transactions. Pursuant to section

6050W(d)(3), a third party payment network is any agreement or arrangement

that (i) involves the establishment of

accounts with a central organization by a

substantial number of providers of goods

or services who are unrelated to the central

organization and who have agreed to settle transactions for the provision of goods

and services with purchasers according

to the terms of agreements; (ii) provides

standards and mechanisms for settling

such transactions; and (iii) guarantees

payments to the providers of goods and

services in settlement of transactions with

the purchasers.

Under section 6050W(d)(1)(A)(ii), a

participating payee, in the case of a third

party network transaction, is any person

who accepts payment from a TPSO in settlement of such transaction.

As originally enacted in 2008, section

6050W(e) provided that a TPSO is not

required to report third party network

transactions with respect to a participating

payee unless the gross amount that would

otherwise be reported exceeds $20,000

and the number of such transactions with

that participating payee exceeds 200.

.02 Section 3406, Backup withholding

Section 3406(a) requires certain payers

to perform backup withholding by deducting and withholding income tax from a

reportable payment when, among other

circumstances, the payee fails to furnish

the payee’s TIN to the payer or the IRS

has notified the payer that the TIN furnished by the payee is incorrect. Pursuant

to section 3406(b)(3)(F), a reportable payment includes payments made by a TPSO

that are required to be shown under section 6050W on a Form 1099-K. A payer is

required to report the amount of deducted

and withheld Federal income tax amounts

on Form 945, Annual Return of Withheld

Federal Income Tax, and on the information return filed with the IRS and furnished

to the payee. In the case of the Form 1099K, withheld income tax is reported in box

4. The payee may then claim credit for

the amount of income tax withheld on the

payee’s Federal income tax return.

.03 Section 6721, Failure to file correct

information returns, and section 6722,

Failure to furnish correct payee statements

Section 6721 imposes a penalty for any

failure to file an information return on or

before the required filing date, and for any

failure to include all of the information

required to be shown on the return or the

inclusion of incorrect information.

Section 6722 imposes a penalty for

failure to furnish a payee statement on or

Unless otherwise specified, all “section” or “§” references are to sections of the Code or the Income Tax Regulations (26 CFR part 1).

December 18, 2023

1484

Bulletin No. 2023–51

before the required furnishing date to the

person to whom such statement is required

to be furnished, and for any failure to

include all of the information required

to be shown on a payee statement or the

inclusion of incorrect information.

.04 American Rescue Plan Act of 2021

Section 9674 of the ARP amended section 6050W(e) to provide that, for Forms

1099-K for calendar years beginning after

December 31, 2021, a TPSO is required

to report payments in settlement of third

party network transactions with respect to

any participating payee that exceed a minimum threshold of $600 in aggregate payments, regardless of the aggregate number

of such transactions.

Notice 2023-10, 2023-3 I.R.B. 403

(January 17, 2023), delayed implementation of the reporting threshold for TPSOs

in section 9674(a) of the ARP for Forms

1099-K for calendar years beginning

before January 1, 2023. Notice 202310 also provided that the IRS would not

assert penalties under section 6721 or

section 6722 for TPSOs failing to file or

failing to furnish Forms 1099-K unless

the gross amount of aggregate payments

required to be reported exceeded $20,000

and the number of transactions exceeded

200.

SECTION 3. TRANSITION

PERIOD FOR ENFORCEMENT

AND ADMINISTRATION WITH

RESPECT TO CALENDAR YEAR

2023

Calendar year 2023 will be regarded

as a further transition period for purposes

of IRS enforcement and administration of

the information reporting requirements

under section 6050W(e), as amended by

the ARP. For calendar year 2023, a TPSO

is not required to report payments in settlement of third party network transactions with respect to a participating payee

unless (1) the gross amount of aggregate

payments to be reported exceeds $20,000

and (2) the number of such transactions

with that participating payee exceeds 200.

The IRS will not assert penalties under

section 6721 or section 6722 for a TPSO

for failing to file or failing to furnish

Forms 1099-K with respect to a payee

unless the gross amount of aggregate payments to be reported exceeds $20,000 and

Bulletin No. 2023–51

the number of such transactions with that

participating payee exceed 200.

The IRS will not regard calendar year

2023 as a transition period with respect to

the requirements of section 6050W that

were not modified by section 9674(a) of

the ARP, such as provisions relating to

payment card transactions. In addition,

TPSOs that have performed backup withholding under section 3406(a) for a payee

during calendar year 2023 must file a Form

945 and a Form 1099-K with the IRS and

furnish a copy to the payee if total reportable payments to the payee exceeded $600

for the calendar year.

SECTION 4. DRAFTING

INFORMATION

The principal author of this notice is

the Office of Associate Chief Counsel

(Procedure and Administration).

26 CFR 601.601: Rules and regulations

(Also Part 1, §§ 6049; 1.6049-4, 1.6049-8)

Rev. Proc. 2023-36

SECTION 1. PURPOSE

This revenue procedure provides a list

of the jurisdictions with which the United

States has in effect a relevant information exchange agreement such that the

reporting requirement of §§ 1.6049-4(b)

(5) and 1.6049-8(a) of the Income Tax

Regulations may apply with respect to

certain deposit interest paid to residents of

such jurisdictions.

This revenue procedure also provides

a list of the jurisdictions with which the

Department of the Treasury (Treasury

Department) and the Internal Revenue

Service (IRS) have determined that it is

appropriate to have an automatic exchange

relationship with respect to the information collected under §§ 1.6049-4(b)(5)

and 1.6049-8(a).

These lists are updated and restated

versions of those set forth in Rev. Proc.

2022-35, I.R.B. 2022-40 270. Ecuador

has been added in Section 3 of this revenue procedure to the list of jurisdictions

with which the United States has in effect a

relevant information exchange agreement.

Argentina and Kazakhstan have been

1485

added in Section 4 of this revenue procedure to the list of jurisdictions with which

the Treasury Department and the IRS have

determined that it is appropriate to have an

automatic exchange relationship.

SECTION 2. BACKGROUND

Sections 1.6049-4(b)(5) and 1.60498(a), as revised by TD 9584, 2012-20

I.R.B. 900, require the reporting of certain

deposit interest paid to nonresident alien

individuals on or after January 1, 2013.

Section 1.6049-4(b)(5) provides that in the

case of interest aggregating $10 or more

paid to a nonresident alien individual (as

defined in section 7701(b)(1)(B)) that is

reportable under § 1.6049-8(a), the payor

is required to make an information return

on Form 1042-S, Foreign Person’s U.S.

Source Income Subject to Withholding,

for the calendar year in which the interest

is paid.

Interest that is reportable under

§ 1.6049-8(a) is interest described in section 871(i)(2)(A) that relates to a deposit

maintained at an office within the United

States. The regulations also provide that

such deposit interest is reportable only

if paid to a resident of a jurisdiction that

is identified as a jurisdiction with which

the United States has in effect an income

tax or other convention or bilateral agreement relating to the exchange of tax information within the meaning of section

6103(k)(4), under which the competent

authority is the Secretary of the Treasury

or the Secretary’s delegate and the

United States agrees to provide, as well

as receive, information. Finally, the regulations provide that jurisdictions are so

identified in an applicable revenue procedure (see § 601.601(d)(2)) as of December

31 before the calendar year in which the

interest is paid. The preamble to the regulations (at 2012-20 I.R.B. 901-02) notes

that the IRS will not exchange information

with another jurisdiction, even if an information exchange agreement is in effect, if

there are concerns about confidentiality,

safeguarding of data exchanged, the use

of the information, or other factors that

would make the exchange of information

inappropriate.

Rev. Proc. 2012-24, 2012-20 I.R.B. 913,

was published contemporaneously with

the publication of TD 9584 to provide a

December 18, 2023

list of those jurisdictions with which the

United States has in effect an information

exchange agreement, such that interest paid

to residents of such jurisdictions must be

reported by payors to the extent required

under §§ 1.6049-4(b)(5) and 1.6049-8(a),

and to provide a separate list identifying

those jurisdictions with which the automatic exchange of the information collected

under the regulations has been determined

by the Treasury Department and the IRS to

be appropriate. Before issuance of this Rev.

Proc. 2023-36, the most current versions

of those lists were set forth in Rev. Proc.

2022-35.

SECTION 3. JURISDICTIONS OF

RESIDENCE WITH RESPECT TO

WHICH THE DEPOSIT INTEREST

REPORTING REQUIREMENT

APPLIES

The following are the jurisdictions

with which the United States has in effect

Jurisdiction

Antigua & Barbuda

Argentina

Aruba

Australia

Austria

Azerbaijan

Bangladesh

Barbados

Belgium

Bermuda

Brazil

British Virgin Islands

Bulgaria

Canada

Cayman Islands

Chile

China

Colombia

Costa Rica

Croatia

Curaçao

Cyprus

Czech Republic

Denmark

Dominica

Dominican Republic

Ecuador

Egypt

Estonia

Faroe Islands

Finland

France

Georgia

December 18, 2023

an income tax or other convention or bilateral agreement relating to the exchange

of tax information within the meaning of

section 6103(k)(4) pursuant to which the

United States agrees to provide, as well as

receive, information and under which the

competent authority is the Secretary of the

Treasury or the Secretary’s delegate:

Rev. Proc. First Identifying Jurisdiction

2012-24

2018-36

2012-24

2014-64

2012-24

2014-64

2021-32

2012-24

2014-64

2012-24

2014-64

2012-24

2023-36

2012-24

2017-46

2012-24

2019-23

1486

Bulletin No. 2023–51

Jurisdiction

Rev. Proc. First Identifying Jurisdiction

2012-24

2017-46

2012-24

2014-64

2012-24

2014-64

2012-64

2018-36

2012-24

Germany

Gibraltar

Greece

Greenland

Grenada

Guernsey

Guyana

Honduras

Hong Kong

Hungary

Iceland

India

Indonesia

Ireland

Isle of Man

Israel

Italy

Jamaica

Japan

Jersey

Kazakhstan

Korea, Republic of

Latvia

Liechtenstein

Lithuania

Luxembourg

Malta

Marshall Islands

Mauritius

Mexico

Moldova

Monaco

Morocco

Netherlands

Netherlands special municipalities: Bonaire, Sint

Eustatius, and Saba

New Zealand

Norway

Pakistan

Panama

Peru

Philippines

Poland

Portugal

Bulletin No. 2023–51

2012-24

1487

December 18, 2023

Jurisdiction

Rev. Proc. First Identifying Jurisdiction

2012-24

2016-56

2020-15

2014-64

2012-24

Romania

Russian Federation

Saint Lucia

Singapore

Sint Maarten

Slovak Republic

Slovenia

South Africa

Spain

Sri Lanka

Sweden

Switzerland

Thailand

Trinidad and Tobago

Tunisia

Turkey

Ukraine

United Kingdom

Venezuela

SECTION 4. JURISDICTIONS

WITH WHICH THE TREASURY

DEPARTMENT AND THE IRS HAVE

DETERMINED THAT AUTOMATIC

EXCHANGE OF DEPOSIT

Jurisdiction

Argentina

Australia

Azerbaijan

Belgium

Brazil

Canada

Colombia

Croatia

Curaçao

Cyprus

Czech Republic

Denmark

Dominican Republic

Estonia

Finland

France

Germany

December 18, 2023

INTEREST INFORMATION IS

APPROPRIATE

The following list identifies the

jurisdictions with which the automatic

exchange of the information collected

under §§ 1.6049-4(b)(5) and 1.6049-8

has been determined by the Treasury

Department and the IRS to be appropriate:

Rev. Proc. First Memorializing Determination on

Automatic Exchange with Jurisdiction

2023-36

2014-64

2016-18

2017-31

2015-50

2012-24

2017-31

2017-46

2019-23

2015-50

2014-64

2021-32

2015-50

2014-64

1488

Bulletin No. 2023–51

Jurisdiction

Gibraltar

Greece

Guernsey

Hungary

Iceland

India

Ireland

Isle of Man

Israel

Italy

Jamaica

Jersey

Kazakhstan

Korea, Republic of

Latvia

Liechtenstein

Lithuania

Luxembourg

Malta

Mauritius

Mexico

Netherlands

New Zealand

Norway

Panama

Poland

Portugal

Saint Lucia

Singapore

Slovak Republic

Slovenia

South Africa

Spain

Sweden

Turkey

United Kingdom

SECTION 5. EFFECT ON OTHER

DOCUMENTS

Rev. Proc. 2022-35 is superseded.

Bulletin No. 2023–51

Rev. Proc. First Memorializing Determination on

Automatic Exchange with Jurisdiction

2015-50

2018-36

2014-64

2015-50

2014-64

2016-56

2014-64

2016-18

2014-64

2023-36

2016-56

2015-50

2014-64

2015-50

2014-64

2017-46

2015-50

2017-31

2016-56

2021-32

2016-18

2015-50

2014-64

2015-50

2022-35

2014-64

SECTION 6. EFFECTIVE DATES

For purposes of the reporting

requirement of § 1.6049-4(b)(5), the

1489

list of jurisdictions in Section 3 of

this revenue procedure is effective for

interest paid on or after January 1 of the

calendar year following the issuance

December 18, 2023

of the revenue procedure (as cited in

Section 3) first identifying the jurisdiction as having in effect an agreement

with the United States as described in

§ 1.6049-8(a).

The list of jurisdictions in Section 4 of

this revenue procedure is effective from

the date of issuance of this revenue procedure with respect to information reported

to the IRS pursuant to §§ 1.6049-4(b)(5)

and 1.6049-8(a) for any tax year for which

December 18, 2023

the jurisdiction was included in the list in

Section 3. The revenue procedure citations in the Section 4 list are included for

historical reference.

(International). For further information

regarding this revenue procedure, contact

Ms. Phillips at (202) 317-4382 (not a tollfree number).

SECTION 7. DRAFTING

INFORMATION

The principal author of this revenue procedure is Michelle R. Phillips of

the Office of Associate Chief Counsel

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Bulletin No. 2023–51

Rev. Proc. 2023-37

TABLE OF CONTENTS

PART I. OVERVIEW

SECTION 1. PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1492

SECTION 2. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1493

SECTION 3. ORGANIZATION OF REVENUE PROCEDURE; SIGNIFICANT CHANGES. . . . . . . . . . . . . . . . . . . . . . 1494

SECTION 4. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1496

PART II. REMEDIAL AMENDMENT CYCLES AND REMEDIAL AMENDMENT PERIODS

SECTION 5. REMEDIAL AMENDMENT CYCLE SYSTEM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1502

SECTION 6. REMEDIAL AMENDMENT PERIODS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1502

SECTION 7. PLAN AMENDMENT DEADLINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1505

SECTION 8. SCHEDULES FOR REMEDIAL AMENDMENT CYCLES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1506

PART III. PROCEDURES FOR A PROVIDER APPLYING FOR AN OPINION LETTER

SECTION 9. PROVISIONS REQUIRED IN PRE-APPROVED PLANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1506

SECTION 10. OPINION LETTERS - SCOPE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1515

SECTION 11. ELIGIBILITY FOR THE CYCLE SYSTEM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1518

SECTION 12. EMPLOYER RELIANCE ON OPINION LETTER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1519

SECTION 13. PLAN AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1523

SECTION 14. O

PINION LETTER APPLICATIONS - INSTRUCTIONS TO PROVIDERS AND OTHER

RULES FOR APPLICATIONS AND LETTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1526

SECTION 15. ADDITIONAL REQUIREMENTS FOR MASS SUBMITTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1530

SECTION 16. FILINGS MADE AFTER THE SUBMISSION PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1533

SECTION 17. SCOPE OF REVIEW; TIMING OF ISSUANCE OF OPINION LETTERS. . . . . . . . . . . . . . . . . . . . . . . . . 1534

SECTION 18. WITHDRAWAL OF APPLICATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1534

SECTION 19. NONTRANSFERABILITY OF OPINION LETTER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1535

SECTION 20. N

OTIFICATION OF ADOPTING EMPLOYER REGARDING FAILURE OF THE FORM OF

THE PLAN TO SATISFY QUALIFICATION REQUIREMENTS OR SECTION 403(b)

REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1535

SECTION 21. DISCONTINUED PLANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1535

SECTION 22. REVOCATION OF OPINION LETTER BY THE IRS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1536

SECTION 23. RECORD KEEPING REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1536

SECTION 24. WHERE TO FILE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1537

PART IV. PROCEDURES FOR AN ADOPTING EMPLOYER APPLYING FOR A DETERMINATION LETTER

SECTION 25. ADOPTING EMPLOYER APPLYING FOR A DETERMINATION LETTER . . . . . . . . . . . . . . . . . . . . . . 1537

PART V. MISCELLANEOUS

SECTION 26. EFFECT ON OTHER DOCUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1540

SECTION 27. EFFECTIVE DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1541

SECTION 28. PUBLIC COMMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1541

SECTION 29. PAPERWORK REDUCTION ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1542

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PART I. OVERVIEW

SECTION 1. PURPOSE

.01 In general. This revenue procedure sets forth the rules regarding Qualified Pre-approved Plans

and Section 403(b) Pre-approved Plans, and combines, conforms, clarifies, and updates rules for

Qualified Pre-approved Plans and Section 403(b) Pre-approved Plans previously set forth in prior

revenue procedures, as described in section 1.01(1) through (3).1 Combining these prior revenue

procedures allows for the rules for the different types of Pre-approved Plans to be more easily

conformed to each other, to the extent practicable. These rules for Pre-approved Plans fall into

three broad categories:

(1) Remedial Amendment Periods, the Remedial Amendment Cycle system, and plan amendment

deadlines. This revenue procedure sets forth the rules regarding Remedial Amendment Periods,

the Remedial Amendment Cycle system, and plan amendment deadlines for Qualified Preapproved Plans and for Section 403(b) Pre-approved Plans, which were previously set forth in

Rev. Proc. 2016-37, 2016‑29 IRB 136, as modified by Rev. Proc. 2017-41, 2017-29 IRB 92,

and Rev. Proc. 2020-40, 2020‑38 IRB 575 (with respect to Qualified Pre-Approved Plans), and

in Rev. Proc. 2019-39, 2019-42 IRB 945, as modified by Notice 2020-35, 2020‑25 IRB 948,

Rev. Proc. 2020-40, and Rev. Proc. 2021-37, 2021‑38 IRB 385 (with respect to Section 403(b) Preapproved Plans). The rules regarding Remedial Amendment Periods, the Remedial Amendment

Cycle system, and plan amendment deadlines are effective on November 21, 2023.

(2) Provider application for an Opinion Letter. This revenue procedure also sets forth the

procedures for a Provider to apply for an Opinion Letter confirming that the form of the Provider’s

plan satisfies the Qualification Requirements or Section 403(b) Requirements (procedures that

were previously set forth in Rev. Proc. 2017-41, as modified by Rev. Proc. 2018-21, 2018-41

IRB 467 (with respect to Qualified Pre-Approved Plans), and in Rev. Proc. 2021-37 (with respect

to Section 403(b) Pre-approved Plans)). The rules regarding the application procedures for an

Opinion Letter are effective with respect to:

(a) A Cycle 4 (or later) defined contribution Qualified Pre-approved Plan (Cycle 4 for defined

contribution Qualified Pre-approved Plans began on February 1, 2023 (see section 1.02 for the

start of the Submission Period for Cycle 4));

(b) A Cycle 4 (or later) defined benefit Qualified Pre-approved Plan (Cycle 4 for defined benefit

Qualified Pre-approved Plans begins on April 1, 2025); and

Section 403(b) Pre-approved Plans ended on May 1, 2023, and Provider applications for Opinion

Letters are currently being reviewed for these Pre-approved Plans).

(3) Adopting Employer application for a determination letter. This revenue procedure also sets

forth the procedures for an Adopting Employer of a Qualified Pre-approved Plan or a Section

403(b) Pre-approved Plan to apply for a determination letter regarding the Adopting Employer’s

plan (procedures that were previously set forth in Rev. Proc. 2016-37 and Rev. Proc. 2017-41

(for an Adopting Employer of a Qualified Pre-approved Plan), and in Rev. Proc. 2021-37 (for an

Adopting Employer of a Section 403(b) Pre-approved Plan)). The rules regarding the application

procedures for a determination letter apply to:

All references to “section” in this revenue procedure are to sections of this revenue procedure unless otherwise provided (such as with defined terms like Section 403(b) Pre-approved Plans

and Section 403(b) Requirements). All references using “§” in this revenue procedure are to sections of the Internal Revenue Code or to Treasury regulations.

December 18, 2023

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(a) An application for a determination letter submitted by an Adopting Employer with respect to a

Cycle 4 (or later) defined contribution Qualified Pre-approved Plan;

(b) An application for a determination letter submitted by an Adopting Employer with respect to a

Cycle 4 (or later) defined benefit Qualified Pre-approved Plan; and

Cycle 2 (or later) Section 403(b) Pre-approved Plan.2

.02 Submission Period for Cycle 4 defined contribution Qualified Pre-approved Plans. Pursuant to

this revenue procedure, the Submission Period for a Provider of a defined contribution Qualified

Pre-approved Plan to submit an application for a Cycle 4 Opinion Letter begins on February 1,

2024, and ends on January 31, 2025. A Provider may apply for a Cycle 4 Opinion Letter at other

times. See section 16 regarding filings made after the Submission Period.

SECTION 2. BACKGROUND

.01 Rev. Proc. 2016-37. Rev. Proc. 2016-37 provides that every pre-approved plan has a recurring

six-year remedial amendment cycle and that pre-approved plan providers may apply for new

opinion letters during a remedial amendment cycle. Rev. Proc. 2016-37 also sets forth an extension

of the remedial amendment period and adoption deadline for plan amendments for qualified preapproved plans.3

.02 Rev. Proc. 2017-41. Rev. Proc. 2017-41 sets forth the procedures for issuing opinion letters

regarding the qualification in form of qualified pre-approved plans.4

.03 Rev. Proc. 2019-39. Rev. Proc. 2019-39, as modified by Notice 2020-35, sets forth a system

of recurring remedial amendment periods for correcting form defects in § 403(b) pre-approved

plans first occurring after June 30, 2020. Rev. Proc. 2019‑39 also establishes a system of § 403(b)

pre-approved plan cycles during which a provider may submit a § 403(b) pre-approved plan for

review and approval by the Internal Revenue Service (IRS). Rev. Proc. 2019‑39 also sets forth

plan amendment deadlines for amendments made to a § 403(b) pre-approved plan.

.04 Rev. Proc. 2021-37. Rev. Proc. 2021-37 sets forth the procedures for issuing opinion letters

regarding the satisfaction in form of § 403(b) pre-approved plans with respect to the requirements

of § 403(b) of the Internal Revenue Code (Code) for remedial amendment cycle 2. Rev. Proc.

2021-37 also sets forth the rules for determining when remedial amendment periods expire for

§ 403(b) pre-approved plans.

.05 Rev. Proc. 2022-40. Rev. Proc. 2022-40, 2022-47 IRB 487, sets forth the rules and procedures

for an employer to submit a determination letter application for an individually designed qualified

or § 403(b) plan for an initial plan determination, for a determination upon plan termination, and

in certain other circumstances identified by the IRS in guidance published in the Internal Revenue

Bulletin (IRB). Rev. Proc. 2022‑40 also sets forth the remedial amendment period rules and plan

amendment deadlines for individually designed qualified or § 403(b) plans.

The rules regarding an Adopting Employer’s application for a determination letter apply for Cycle 2 Section 403(b) Pre-approved Plans because, although Cycle 2 has begun, Cycle 2

Opinion Letters have not been issued and the Employer Adoption Window for Cycle 2 (during which an application for a determination letter would generally be submitted) has not begun.

The rules of Rev. Proc. 2016-37 still apply for Cycle 3 Qualified Pre-approved Plans. However, Cycle 4 Qualified Pre-approved Plans (whether defined contribution or defined benefit) will

be governed by this revenue procedure and not Rev. Proc. 2016-37.

The rules of Rev. Proc. 2017-41 still apply for Cycle 3 Qualified Pre-approved Plans. However, Cycle 4 Qualified Pre-approved Plans (whether defined contribution or defined benefit) will

be governed by this revenue procedure and not Rev. Proc. 2017-41.

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.06 Rev. Proc. 2023-4. Rev. Proc. 2023-4, 2023-1 IRB 162, (as updated annually) sets forth

the general procedures on the issuance of Employee Plans determination letters, including a

determination letter for an adopting employer’s pre-approved plan.

SECTION 3. ORGANIZATION OF REVENUE PROCEDURE; SIGNIFICANT CHANGES

.01 Organization of this revenue procedure.

(1) Sections 1 through 4 set forth the purpose, background, organization, significant changes, and

definitions for this revenue procedure.

(2) Sections 5 through 8 set forth the rules regarding Remedial Amendment Periods, the Remedial

Amendment Cycle system, and plan amendment deadlines for Qualified Pre-approved Plans and

for Section 403(b) Pre-approved Plans.

(3) Sections 9 through 24 set forth the procedures for a Provider to apply for an Opinion Letter

confirming that the form of the Provider’s plan satisfies the Qualification Requirements or Section

403(b) Requirements.

(4) Section 25 sets forth the procedures for an Adopting Employer of a Qualified Pre-approved

Plan or a Section 403(b) Pre-approved Plan to apply for a determination letter regarding the

Adopting Employer’s plan.

(5) Sections 26 through 29 set forth miscellaneous provisions, including provisions regarding the

effect on other documents, the effective date, and public comments.

.02 Examples of significant changes from prior revenue procedures. In consolidating the prior

revenue procedures (which set forth rules for qualified pre-approved plans and § 403(b) preapproved plans) into this revenue procedure, numerous changes were made to conform, clarify,

and update the rules. The following are some examples of those changes.

(1) For all Pre-approved Plans.

(a) The Remedial Amendment Period for Disqualifying Provisions or Form Defects is clarified

to expire at the same time as the deadline for the adoption of Interim Amendments, as set forth in

section 7. See section 6.03(1).

(b) The end of the Remedial Amendment Period for Discretionary Amendments made by an

Adopting Employer (not by a Provider) is changed. See section 6.03(2).

correct a failure to timely adopt an Interim Amendment within two years after the time period set

forth in section 7, then the Adopting Employer’s plan will be treated as an individually designed

plan at the end of that two-year period. See section 6.04.

(d) The Interim Amendment deadline is changed to match the individually designed plan Remedial

Amendment Period deadline. See section 7.01(1)(a) and (2)(a).

(e) The plan amendment deadline for a Governmental Plan is changed to provide additional time

beyond the deadline for a plan that is not a Governmental Plan only to the extent any action is

required to be taken by the Adopting Employer in order to adopt the amendment. See section

7.01(2).

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(f) The eligibility of an employer to adopt a Pre-approved Plan for a Cycle is changed to require that,

for a plan that was not in existence in the immediately preceding Cycle, the plan must have been

submitted for an Opinion Letter for the Cycle before the employer adopts it. See section 11.01(1).

(g) For a starter 401(k) deferral-only plan described in § 401(k)(16) or a safe harbor deferral-only

plan described in § 403(b)(16),5 an Adopting Employer’s reliance is updated to include those

sections. See section 12.01(6) and 12.02(6).

(h) The circumstances under which a Pre-approved Plan will be treated as an individually designed

plan, and the consequences of such treatment, are updated and clarified. See section 13.05.

(i) The rules for issuing an Opinion Letter are clarified to provide that an Opinion Letter will not

be issued for amendments made between Submission Periods. Instead, a Provider must submit a

restated plan that incorporates the amendments during the next Submission Period. See section

14.15.

(j) The scope of review for an Opinion Letter is clarified and updated. See section 17.01(1) and

(2).

(k) The application filing address is updated. See section 24.

(l) The rules for an Adopting Employer applying for a determination letter are clarified and

updated. See section 25.

(2) For Qualified Pre-approved Plans.

(a) The number of unaffiliated Providers required to be associated with a Mass Submitter is

changed to better match the rules for a Mass Submitter with respect to a Section 403(b) Preapproved Plan. See section 4.01(10).

(b) The number of employer-clients a Provider must have is changed to better match the rules for

a Provider with respect to a Section 403(b) Pre-approved Plan. See section 4.01(15).

(d) The rules relating to a Cycle for a Qualified Pre-approved Plan are changed to match the rules

relating to a Cycle for a Section 403(b) Pre-approved Plan. Accordingly, each Cycle is no longer

a fixed six years, and each Cycle now ends at the end of the Employer Adoption Window (with

the result that the Submission Period may begin after the first day of a Cycle). See section 5.02.

(e) The required provisions for a Qualified Pre-approved Plan that is a pension plan and not a

Governmental Plan are changed to require that the plan must have a normal retirement age that is

not less than age 55. See section 9.02(13).

(f) The effect of an amendment with respect to which a closing agreement under the Audit Closing

Agreement Program or a compliance statement under the Voluntary Correction Program of the

Employee Plans Compliance Resolution System (EPCRS) has been issued is clarified to match

the rules for a Section 403(b) Pre-approved Plan and provide that reliance on the Opinion Letter

will not be lost. See section 13.02(8).

(g) The application procedures for an Opinion Letter are changed to no longer require attachments

required in prior Cycles. See section 14.03, which no longer has the requirement.

Section 121 of Division T of the Consolidated Appropriations Act, 2023, Pub. L. 117-328, 136 Stat. 4459 (2022), known as the SECURE 2.0 Act of 2022, added §§ 401(k)(16) and 403(b)

(16) to the Code, effective for plan years beginning after December 31, 2023.

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(h) The consequences of a Provider failure to disclose a material fact are changed to match the

rules for a Provider failure to disclose a material fact with respect to a Section 403(b) Pre-approved

Plan. See section 14.11.

(i) The consequences of a Mass Submitter’s failure to identify a modification are changed to match

the rules for a Mass Submitter’s failure to identify a modification with respect to a Section 403(b)

Pre-approved Plan. See section 15.03(2)(c).

(j) The requirements for a Provider of a discontinued plan are changed to match the rules for a

discontinued plan with respect to a Section 403(b) Pre-approved Plan. See section 21.02.

(3) For Section 403(b) Pre-approved Plans.

(a) The integral amendment portion of the definition of Form Defect is changed to better match the

Qualified Pre-approved Plan rules for a Disqualified Provision. See section 4.03(2).

(b) The requirements for a Standardized Section 403(b) Pre-approved Plan that provides only

for elective deferrals are updated to add requirements regarding hardship distributions and § 415

language. See section 9.07(1) and (2).

contributions other than elective deferrals are changed so that the requirements of section 9.07(3)

(b) apply only to contributions other than elective deferrals. See section 9.07(3)(b).

(d) The rules for when an Opinion Letter will not be issued with respect to a Section 403(b) Preapproved Plan are changed to better match the rules for when an Opinion Letter will not be issued

with respect to a Qualified Pre-approved Plan and to provide that an Opinion Letter will not be

issued for (i) a plan designed to satisfy the provisions of § 105, (ii) a plan that includes § 401(h)

accounts, and (iii) a plan that includes purported fail-safe provisions for § 401(a)(4) or the average

benefit test under § 410(b). See section 10.02(1).

(e) The rules for an Adopting Employer of a Section 403(b) Pre-approved Plan that applies for

a determination letter are updated to better match the Qualified Pre-approved Plan rules for

determination letter applications. See section 25.

SECTION 4. DEFINITIONS

.01 General definitions. For purposes of this revenue procedure, the following definitions apply

to all Pre-approved Plans.

(1) Adopting Employer. The term “Adopting Employer” means an Employer that adopts a Preapproved Plan offered by a Provider.

(2) Adoption Agreement Plan. The term “Adoption Agreement Plan” means a plan that consists of

a basic plan document and an adoption agreement. The basic plan document includes all the nonelective provisions applicable to all Adopting Employers, and the adoption agreement includes

the options that may be selected by each Adopting Employer. No options (including blanks to be

completed) may be provided in the basic plan document portion of the Adoption Agreement Plan

(except as set forth in section 15.03 regarding Flexible Plans).

(3) Cycle. The term “Cycle” means a Remedial Amendment Cycle, as defined in section 4.01(17).

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(4) Discretionary Amendment. The term “Discretionary Amendment” means an amendment that

is not an Interim Amendment.

(5) Employer. The term “Employer” means an employer that sponsors a Qualified Pre-approved

Plan for its employees or an eligible employer, as described in § 403(b)(1)(A), that sponsors a

Section 403(b) Pre-approved Plan for its employees.

(6) Employer Adoption Window. The term “Employer Adoption Window” means the period during

which an Adopting Employer must adopt a newly approved Pre-approved Plan for a Cycle, and is

also generally the period during which an Adopting Employer of a newly approved Pre-approved

Plan may submit an application for a determination letter (if otherwise permitted). See section 5.02

regarding the Employer Adoption Window and section 25 regarding determination letters.

(7) Flexible Plan. The term “Flexible Plan” means a plan submitted by a Mass Submitter that

includes optional provisions (as described in section 15.03(1)(b)).

(8) Governmental Plan. The term “Governmental Plan” means a governmental plan within the

meaning of § 414(d).

(9) Interim Amendment. The term “Interim Amendment” means an amendment to correct a

Disqualifying Provision or a Form Defect that results in the failure of a Pre-approved Plan to

satisfy a Qualification Requirement or Section 403(b) Requirement, as applicable, by reason of

a change in that requirement, or an amendment that is integral to that Disqualifying Provision or

Form Defect. See section 6.04.

(10) Mass Submitter. The term “Mass Submitter” means any person that (a) has an established

place of business in the United States where it is accessible during every business day, and

(b) submits Opinion Letter applications on behalf of 15 unaffiliated Providers, each of which

is offering, on a word-for-word identical basis, the same plan. A Flexible Plan that is offered

by a Provider is considered a plan that is word-for-word identical. For purposes of determining

whether 15 unaffiliated Providers offer, on a word-for-word identical basis, the same Pre-approved

Plan, a Mass Submitter that is also a Provider is treated as an unaffiliated Provider. For purposes

of this definition, affiliation is determined under § 414(b) and (c). Additionally, any law firm,

accounting firm, consulting firm, or similar organization is considered to be affiliated with its

partners, members, associates, or similar affiliated persons. A Mass Submitter is treated as a Mass

Submitter with respect to all of its plans, provided the 15-unaffiliated-Provider requirement is met

with respect to at least one plan. See section 15 for rules relating to a Mass Submitter’s plans.

(11) Minor Modification. The term “Minor Modification” means a minor change to an otherwise

word-for-word identical Pre-approved Plan of the Mass Submitter that the IRS determines does

not require an in-depth IRS technical review. For example, a change from five-year 100% vesting

to three-year 100% vesting is a minor modification for a defined benefit plan. On the other hand,

a change in the method of accrual of benefits in a defined benefit plan would not be considered a

Minor Modification.

(12) Nonstandardized Plan. The term “Nonstandardized Plan” means a Pre-approved Plan that is

not a Standardized Plan.

(13) Opinion Letter. The term “Opinion Letter” means a written statement issued by the IRS to

a Provider or Mass Submitter that the form of a Qualified Pre-approved Plan or a Section 403(b)

Pre-approved Plan satisfies the Qualification Requirements or the Section 403(b) Requirements,

respectively, that are being reviewed by the IRS for the Cycle for which the Opinion Letter is

being issued.

(14) Pre-approved Plan. The term “Pre-approved Plan” means a plan (including a plan that is

word-for-word identical to, or a Minor Modification of, a Mass Submitter’s plan) that has received

an Opinion Letter under this revenue procedure (or a predecessor of this revenue procedure) and

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that is made available by a Provider for adoption by Employers. A Pre-approved Plan includes

a plan covering self-employed individuals. A Pre-approved Plan may be either a Qualified Preapproved Plan or a Section 403(b) Pre-approved Plan. A Qualified Pre-approved Plan or a Section

403(b) Pre-approved Plan may be either a Standardized Plan or a Nonstandardized Plan. A

Qualified Pre-approved Plan or a Section 403(b) Pre-approved Plan may be structured as either an

Adoption Agreement Plan or a Single Document Plan.

(15) Provider.

(a) The term “Provider” means any person (including, if applicable, a Mass Submitter) that:

(i) Has an established place of business in the United States where it is accessible during every

business day, and

(ii) Represents to the IRS in its application for an Opinion Letter that it has at least 15 Employerclients (except as set forth in section 4.01(15)(a)(ii)(A) regarding a Retirement Income Account),

each of which is reasonably expected to adopt one of the Provider’s Pre-approved Plans.

(A) A person that is otherwise eligible to be a Provider generally may apply for an Opinion Letter

for a Section 403(b) Pre-approved Plan that is intended to be a Retirement Income Account without

satisfying the 15‑Employer-client requirement with respect to that plan. However, if that person

also applies for an Opinion Letter with respect to a Section 403(b) Pre-approved Plan that is not a

Retirement Income Account, the person would need to meet the 15-Employer-client requirement

for the plan that is not a Retirement Income Account.

(B) The IRS reserves the right to request from the Provider at any time a list of the Employers that

have adopted or are expected to adopt the Provider’s plans, including the Employers’ business

addresses and employer identification numbers.

(b) Notwithstanding the preceding provisions of this section 4.01(15), any person that has an

established place of business in the United States where it is accessible during every business

day may offer a plan that is word-for-word identical to a Mass Submitter’s plan as an identical

adopter or a plan that includes Minor Modifications to a Mass Submitter’s plan as a minor modifier

adopter regardless of the number of Employers that are expected to adopt the plan. See section

15 for rules relating to a Mass Submitter’s plans, including procedures for identical adopters and

minor modifier adopters of a Mass Submitter’s plans.

procedure (or by having an application filed on its behalf by a Mass Submitter as an identical

adopter or a minor modifier adopter), a person represents to the IRS that it is a Provider, and that it

agrees to comply with any requirements imposed on Providers by this revenue procedure. Failure

to comply with these requirements may result in the loss of eligibility to offer Pre-approved Plans

and the revocation of Opinion Letters that have been issued to the Provider.

(16) Related Employers. For a Pre-approved Plan other than a Section 403(b) Pre-approved Plan

that is a Governmental Plan, the term “Related Employer” means an employer that is aggregated

with the Adopting Employer under § 414(b), (c), (m), and (o) and the regulations thereunder. For

a Section 403(b) Pre-approved Plan that is a Governmental Plan, the term “Related Employer”

means an employer that is aggregated with the Adopting Employer in a manner consistent with

Notice 89-23, 1989‑1 CB 654.

(17) Remedial Amendment Cycle. The term “Remedial Amendment Cycle” means the time period

designated by the IRS during which (1) a Provider submits a proposed Pre-approved Plan for

review and approval by the IRS, (2) the plan, once approved, is adopted by Employers, and (3) an

Adopting Employer of a newly approved Pre-approved Plan generally may submit an application

for a determination letter (if otherwise permitted). See section 5.

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(18) Remedial Amendment Period. The term “Remedial Amendment Period” means the period

during which an employer maintaining a plan may correct Disqualifying Provisions or Form

Defects, as applicable, in its plan retroactive to the beginning of that period. As part of the correction

of a Disqualifying Provision or a Form Defect within the applicable Remedial Amendment Period,

an Adopting Employer is considered to have satisfied the Qualification Requirements or Section

403(b) Requirements, as applicable, if all provisions of the plan that are necessary to satisfy those

requirements have been adopted and made effective in form and operation from the beginning of

the Remedial Amendment Period. See section 6.

(19) Single Document Plan. The term “Single Document Plan” means a plan offered by a Provider

that consists of a single plan document without an adoption agreement. A Single Document Plan

may include alternate paragraphs and options that may be selected by an Adopting Employer

(including blanks to be completed by the Adopting Employer in accordance with specified

parameters).

(20) Standardized Plan. The term “Standardized Plan” means a Pre-approved Plan that satisfies

the requirements set forth in section 9.03 or 9.07, as applicable. A Qualified Pre-approved Plan

that includes an ESOP or that is a Statutory Hybrid Plan may not be a Standardized Plan.

(21) Submission Period. The term “Submission Period” means the period during which a Provider

(including a Mass Submitter) may apply for an Opinion Letter for a particular Cycle. See section

5.02; also see section 16 regarding filings made after the Submission Period.

.02 Definitions applicable solely to Qualified Pre-approved Plans. For purposes of this revenue

procedure, the following definitions apply to Qualified Pre-approved Plans and do not apply to

Section 403(b) Pre-approved Plans.

(1) Disqualifying Provision.

(a) In general. For a Qualified Pre-approved Plan, the term “Disqualifying Provision” means:

(i) A provision of a new plan, the absence of a provision from a new plan, or an amendment to an

existing plan that causes the plan to fail to satisfy the requirements of the Code applicable to the

qualification of the plan as of the date the plan or amendment is first made effective;

(ii) A plan provision that, pursuant to § 1.401(b)‑1(b)(3), has been designated by the Commissioner,

in guidance published in the IRB, as a disqualifying provision by reason of a change in those

requirements; or

(iii) The absence from a plan of a provision required by (or, if applicable, integral to) a change in

the qualification requirements of the Code.

(b) Designation of Disqualifying Provisions. Pursuant to § 1.401(b)-1(b)(3), the IRS designates a

plan provision as a Disqualifying Provision if it:

(i) Results in the failure of the plan to satisfy the qualification requirements of the Code by reason

of a change in those requirements that is effective after December 31, 2001; or

(ii) Is integral to a Disqualifying Provision described in section 4.02(1)(b)(i).

(2) Qualified Pre-approved Plan. The term “Qualified Pre-approved Plan” means a Pre-approved

Plan that is intended to meet the Qualification Requirements.

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(3) Qualification Requirements. The term “Qualification Requirements” means the requirements

of §§ 401(a), 403(a), 409, and 4975(e)(7), including requirements provided by statute, or in

regulations or other guidance published in the IRB.6

(4) Trust or Custodial Account Document. The term “Trust or Custodial Account Document”

means the separate portion of a Qualified Pre-approved Plan that includes the trust agreement

or custodial account agreement and includes provisions covering such matters as the powers

and duties of trustees, investment authority, and the kinds of investments that may be made.

All provisions of the Trust or Custodial Account Document must be applicable to all Adopting

Employers of that trust or custodial account. The trust agreement or custodial account agreement

must be in a document separate from the plan document that is submitted for an Opinion Letter.

(5) Definitions related to ESOPs.

(a) ESOP. The term “ESOP” means an employee stock ownership plan within the meaning of

§ 4975(e)(7).

(b) Exempt Loan. The term “Exempt Loan” means a loan described in § 4975(d)(3) that satisfies

the requirements for exemption from the excise tax imposed under § 4975(a) and (b) described in

§ 54.4975‑7(b).

means publicly traded securities as defined in § 1.401(a)(35)‑1(f)(5).

(6) Definitions related to Hybrid Plans.

(a) Cash Balance Formula. The term “Cash Balance Formula” means a statutory hybrid benefit

formula, as defined in § 1.411(a)(13)-1(d)(4), that is used to determine all or any part of a

participant’s accumulated benefit, and under which the accumulated benefit provided under the

formula is expressed as the current balance of a hypothetical account maintained for the participant.

The hypothetical account balance generally consists of Principal Credits and Interest Credits.

(b) Cash Balance Plan. The term “Cash Balance Plan” means a defined benefit plan that includes

a Cash Balance Formula.

in § 1.411(b)(5)-1(c)(4). Under this regulation, a conversion amendment is an amendment (i) that

reduces or eliminates the benefits that, but for the amendment, a participant would have earned

after the effective date of the amendment under a benefit formula that is not a statutory hybrid

benefit formula within the meaning of § 1.411(a)(13)-1(d)(4), and (ii) with respect to which, after

the effective date of the amendment, all or a portion of the participant’s benefit accruals under the

plan are determined under a statutory hybrid benefit formula.

(d) Interest Credit. The term “Interest Credit” means an interest credit as defined in § 1.411(b)

(5)-1(d)(1)(ii)(A). Under this regulation, an interest credit is an adjustment to a participant’s

hypothetical account balance for a period that is not conditioned on service and that is determined

by applying a rate of interest or rate of return to the participant’s hypothetical account balance as

of the beginning of the period.

(e) Offset. The term “Offset” means the reduction of benefits under an Employer’s defined benefit

plan by an amount attributable to the benefits payable under another plan of the Employer.

Under this definition, a change in Qualification Requirements includes a change provided by statute, or in regulations or other guidance published in the IRB, that affects a requirement of

§ 401(a), 403(a), 409, or 4975(e)(7), without regard to whether the change results in a Disqualifying Provision or merely permits the adoption of a Discretionary Amendment.

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(f) Principal Credit. The term “Principal Credit” means a principal credit as defined in § 1.411(b)

(5)-1(d)(1)(ii)(D), which includes any increase in a participant’s hypothetical account balance that

is not an Interest Credit.

(g) Statutory Hybrid Plan. The term “Statutory Hybrid Plan” means a defined benefit plan that

includes a statutory hybrid benefit formula as defined in § 1.411(a)(13)‑1(d)(4).

(h) Variable Annuity Plan. The term “Variable Annuity Plan” means any defined benefit plan that

includes a variable annuity benefit formula as defined in § 1.411(a)(13)-1(d)(6).

.03 Definitions applicable solely to Section 403(b) Pre-approved Plans. For purposes of this

revenue procedure, the following definitions apply to Section 403(b) Pre-approved Plans, and do

not apply to Qualified Pre-approved Plans:

(1) Church. The term “Church” means a church within the meaning of § 3121(w)(3)(A).

(2) Form Defect. The term “Form Defect” means:

(a) A provision of a new plan, the absence of a provision from a new plan, or an amendment to

an existing plan that causes the form of the § 403(b) plan to fail to satisfy the Section 403(b)

Requirements applicable as of the date the plan or amendment is first made effective;

(b) A plan provision that:

(i) Results in the failure of the form of the § 403(b) plan to satisfy the Section 403(b) Requirements

by reason of a change in those requirements; or

(ii) Is integral to a Form Defect described in section 4.03(2)(b)(i); or

the Section 403(b) Requirements.

(3) Investment Arrangement. The term “Investment Arrangement” means a funding arrangement

under a Section 403(b) Pre-approved Plan. An Investment Arrangement may be an annuity contract

under § 1.403(b)-2(b)(2), a custodial account under § 403(b)(7), or a Retirement Income Account.

(4) Non-qualified Church-Controlled Organization or Non-QCCO. The term “Non-qualified

Church-Controlled Organization” or “Non-QCCO” means a church-controlled tax-exempt

organization described in § 501(c)(3) that is not a QCCO.

(5) Qualified Church-Controlled Organization or QCCO. The term “Qualified Church-Controlled

Organization” or “QCCO” means a church-controlled tax-exempt organization described in

§ 501(c)(3) that is a qualified church-controlled organization within the meaning of § 3121(w)

(3)(B).

(6) Retirement Income Account. The term “Retirement Income Account” means a defined

contribution program established or maintained by a Church, including an organization described

in § 414(e)(3)(A), to provide benefits under § 403(b) for an employee described in § 403(b)(1)

(including an employee described in § 414(e)(3)(B)) or his or her beneficiaries, as described in

§ 403(b)(9).

(7) Section 403(b) Pre-approved Plan. The term “Section 403(b) Pre-approved Plan” means a Preapproved Plan that is intended to meet the Section 403(b) Requirements.

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(8) Section 403(b) Requirements. The term “Section 403(b) Requirements” means the requirements

of § 403(b), including requirements provided in the Code, or in regulations or other guidance

published in the IRB.7

PART II. REMEDIAL AMENDMENT CYCLES AND REMEDIAL AMENDMENT PERIODS

SECTION 5. REMEDIAL AMENDMENT CYCLE SYSTEM

.01 Remedial Amendment Cycles. Under this revenue procedure, every Pre-approved Plan has a

recurring Remedial Amendment Cycle. Providers may apply for new Opinion Letters for each

Cycle. Adopting Employers of Pre-approved Plans, if otherwise eligible under section 25, may

apply for determination letters once each Cycle. Defined contribution Qualified Pre-approved

Plans, defined benefit Qualified Pre-approved Plans, and Section 403(b) Pre-approved Plans

each have different Cycles. While the same Cycle applies with respect to all defined contribution

Qualified Pre-approved Plans, separate Cycles apply with respect to all defined benefit Qualified

Pre-approved Plans and with respect to all Section 403(b) Pre-approved Plans.

.02 Stages of Remedial Amendment Cycle. For each Cycle, a Provider may apply for an Opinion

Letter during the Submission Period, which generally begins at or shortly after the beginning

of each Cycle. When the IRS’s review of the Pre-approved Plans that are submitted during a

Cycle is near completion, the IRS will announce the Employer Adoption Window for that Cycle,

during which an Adopting Employer must adopt a newly approved Pre-approved Plan for that

Cycle in order to continue to have a Pre-approved Plan. The Employer Adoption Window is also

generally the period during which an Adopting Employer of a newly approved Pre-approved

Plan may submit for a determination letter, if applicable, pursuant to section 25.8 The deadline to

adopt a newly approved Pre-approved Plan is expected to be a uniform date that will apply to all

Adopting Employers. It is expected that the Employer Adoption Window will provide virtually

all Employers approximately two years to adopt a newly approved Pre-approved Plan and file

for a determination letter, if applicable. A Cycle ends at the end of the last day of the Employer

Adoption Window for that Cycle. The next Cycle begins on the following day.

.03 Cycle 4 Submission Period for defined contribution Qualified Pre-approved Plans. Pursuant to

this revenue procedure, the Submission Period for a Provider of a defined contribution Qualified

Pre-approved Plan to apply for a Cycle 4 Opinion Letter begins on February 1, 2024, and ends

on January 31, 2025. A Provider of a defined contribution Qualified Pre-approved Plan may still

apply for a Cycle 4 Opinion Letter after the Submission Period. See section 16 regarding filings

made after the Submission Period.

SECTION 6. REMEDIAL AMENDMENT PERIODS

.01 In general. The provisions of this section 6 set forth the Remedial Amendment Periods for

Disqualifying Provisions and Form Defects for Pre-approved Plans. A Qualified Pre-approved Plan

that does not satisfy a Qualification Requirement or a Section 403(b) Pre-approved Plan that does

not satisfy a Section 403(b) Requirement on any day solely as a result of a Disqualifying Provision

or Form Defect, as applicable, is considered to have satisfied the Qualification Requirement or

Under this definition, a change in Section 403(b) Requirements includes a statutory, regulatory, or other guidance change that affects a requirement of § 403(b), without regard to whether

the change results in a Form Defect or merely permits the adoption of a Discretionary Amendment.

But see, section 25 for when an Adopting Employer may apply for a determination letter outside of the Employer Adoption Window.

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Section 403(b) Requirement on that date if, on or before the last day of the Remedial Amendment

Period with respect to the Disqualifying Provision or Form Defect, all provisions of the plan

that are necessary to satisfy the Qualification Requirement or Section 403(b) Requirement, as

applicable, have been adopted and made effective in form and operation for the whole of the

period. A Pre-approved Plan for which an Adopting Employer does not correct a Disqualifying

Provision or Form Defect within the applicable Remedial Amendment Period is not considered to

satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable.

.02 Beginning dates of the Remedial Amendment Period.

(1) Disqualifying Provisions. Pursuant to § 1.401(b)-1(d)(1), unless another time is specified

by the Commissioner in guidance published in the IRB, the Remedial Amendment Period for a

Disqualifying Provision begins:

(a) In the case of a Disqualifying Provision with respect to a provision of, or absence of a provision

from, a new plan, on the date the plan is put into effect;

(b) In the case of a Disqualifying Provision with respect to an amendment to an existing plan (other

than a Disqualifying Provision that is related to a change in Qualification Requirements, or that is

integral to such a change, as described in section 4.02(1)(b)), on the date the plan amendment is

adopted or put into effect, whichever is earlier;

Qualification Requirements by reason of a change in those requirements, on the date on which the

change effected by an amendment to the Code or a change in requirements provided in regulations

or other guidance published in the IRB became effective with respect to the plan; or

(d) In the case of a Disqualifying Provision with respect to a provision that is integral to a

Qualification Requirement that has been changed, on the first day on which the plan was operated

in accordance with such provision, as amended.

(2) Form Defects. Unless another time is specified by the Commissioner in guidance published in

the IRB, the Remedial Amendment Period for a Form Defect begins:

(a) In the case of a Form Defect with respect to a provision of, or absence of a provision from, a

new plan, on the date the plan is put into effect;

(b) In the case of a Form Defect with respect to an amendment to an existing plan (other than a

Form Defect that is related to a change in Section 403(b) Requirements, or that is integral to such

a change, as described in section 4.03(2)(b)), on the date the plan amendment is adopted or put

into effect, whichever is earlier;

Requirements by reason of a change in those requirements, on the date on which the change

effected by an amendment to the Code or a change in requirements provided in regulations or

other guidance published in the IRB became effective with respect to the plan; or

(d) In the case of a Form Defect with respect to a provision that is integral to a Section 403(b)

Requirement that has been changed, on the first day on which the plan was operated in accordance

with such provision, as amended.

.03 Expiration of the Remedial Amendment Period.

(1) In general. Provided an Interim Amendment, if applicable, is made timely, and except as

otherwise provided in section 6.03(2), by statute, or in regulations or other guidance published

in the IRB, the Remedial Amendment Period for a Disqualifying Provision or a Form Defect,

as applicable, expires at the later of (a) the end of the Cycle that includes the date on which the

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Remedial Amendment Period would have ended if the plan were an individually designed plan,9

or (b) the end of the first Cycle in which an application for an Opinion Letter that considers

the Disqualifying Provision or Form Defect may be submitted. This Remedial Amendment

Period applies regardless of whether the Disqualifying Provision or Form Defect relates to a new

plan or is due to an amendment to an existing plan (without regard to whether the amendment

was required to be adopted), provided that the plan or amendment was adopted timely and in

good faith with the intent of complying with the Qualification Requirements or Section 403(b)

Requirements, as applicable. The IRS will make the final determination in all cases as to whether

a new plan or an amendment to an existing plan was adopted with the good faith intention of

complying with the Qualification Requirements or Section 403(b) Requirements, as applicable.

If an Interim Amendment is not made timely, then the Remedial Amendment Period for the

Disqualifying Provision or the Form Defect, as applicable, expires at the time of the Interim

Amendment deadline set forth in section 7.

(2) Discretionary Amendments made by an Adopting Employer. For a Discretionary Amendment

made by an Adopting Employer (not by the Provider), the Remedial Amendment Period for

a Disqualifying Provision or a Form Defect, as applicable, arising from that Discretionary

Amendment expires at the end of the Cycle that includes the date on which the Remedial

Amendment Period would have ended if the plan were an individually designed plan.

.04 Interim Amendment requirement. To promote compliance during a Cycle with a change in

Qualification Requirements or Section 403(b) Requirements that affects provisions of a written

plan document, a Provider (or Adopting Employer, if applicable) of a Pre-approved Plan must

adopt an Interim Amendment with respect to the change within the time period set forth in

section 7, unless the Provider (or Adopting Employer, if applicable) reasonably and in good faith

determines that no amendment is required.10 The IRS will make the final determination in all

cases as to whether the determination that no Interim Amendment was required is reasonable and

in good faith. If an Interim Amendment is not adopted by the end of the time period set forth in

section 7, the Provider (or Adopting Employer, if applicable) must correct this failure to timely

adopt the Interim Amendment within two years after the end of the time period set forth in section

7; otherwise the Adopting Employer’s plan will be treated as an individually designed plan at the

end of that two-year period. See section 13.05 for a Pre-approved Plan treated as individually

designed.11

.05 Terminating plan. Notwithstanding any other provision of this section 6, the termination of

a Pre-approved Plan ends the Remedial Amendment Period for each Disqualifying Provision

or Form Defect of the plan and, thus, generally will shorten the Remedial Amendment Period.

Accordingly, any retroactive remedial plan amendments or other required plan amendments

for a terminating plan (that is, plan amendments required to be adopted to reflect Qualification

Requirements or Section 403(b) Requirements that apply as of the date of termination) must be

adopted in connection with the plan termination regardless of whether such requirements are

included on a Cumulative List described in section 17, Operational Compliance List described in

section 14.09, or Required Amendments List described in Rev. Proc. 2022-40.12

.06 Circumstances in which a Disqualifying Provision or Form Defect may not be corrected

retroactively during a Remedial Amendment Period. If it is not possible to amend a plan

retroactively during a Remedial Amendment Period so that all provisions of the plan that are

necessary to satisfy Qualification Requirements or Section 403(b) Requirements related to the

Disqualifying Provision or Form Defect, as applicable, are made effective in operation for the

For the Remedial Amendment Period rules for individually designed qualified and § 403(b) plans, see Rev. Proc. 2022-40.

See section 14.09 regarding the Operational Compliance List, which identifies changes to Qualification Requirements or Section 403(b) Requirements that are effective during a calendar

year.

During the two-year period, the plan will not cease to be a Pre-approved Plan solely because it has failed to adopt the Interim Amendment. Once a plan is treated as an individually designed

plan, the plan will be subject to the remedial amendment period rules applicable to individually designed plans and therefore will have a failure to satisfy the Qualification Requirements or

Section 403(b) Requirements for failing to have adopted the Interim Amendment (and must use EPCRS to correct that failure in order to adopt a Pre-approved Plan again).

The Required Amendments List establishes the end of the Remedial Amendment Period and the plan amendment deadline for changes in qualification requirements and § 403(b) requirements set forth on the list for qualified individually designed plans and § 403(b) individually designed plans, respectively. The Required Amendments Lists can be found at https://www.irs.

gov/retirement-plans/required-amendments-list.

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whole Remedial Amendment Period, then the Disqualifying Provision or Form Defect may not be

corrected retroactively in order for the form of the plan to satisfy the Qualification Requirements

or Section 403(b) Requirements, as applicable, even if the Adopting Employer adopts a retroactive

plan amendment that, in form, appears to satisfy those requirements. An Adopting Employer

maintaining a Pre-approved Plan that cannot be corrected by an amendment during the applicable

Remedial Amendment Period may be able to correct the Disqualifying Provision or Form Defect

under EPCRS. See Rev. Proc. 2021-30, 2021-31 IRB 172 (or its successor).

SECTION 7. PLAN AMENDMENT DEADLINES

.01 Plan amendment deadline. Except as otherwise provided in section 7.02, the deadline for the

timely adoption of an amendment for a Pre-approved Plan is determined as follows.

(1) Pre-approved Plan that is not a Governmental Plan.

(a) Interim Amendments. For a Pre-approved Plan that is not a Governmental Plan, a Provider

(or the Adopting Employer, if applicable) adopts an Interim Amendment timely if the plan

amendment is adopted by the last day of the second calendar year that begins after the issuance

of the Required Amendments List (described in Rev. Proc. 2022-40) in which the change in

Qualification Requirements or Section 403(b) Requirements appears.

(b) Discretionary Amendments. For a Pre-approved Plan that is not a Governmental Plan, in

the case of a Discretionary Amendment, an Adopting Employer adopts the amendment timely

if the Adopting Employer (or a Provider, if applicable) adopts the plan amendment by the end

of the plan year in which the plan amendment is operationally put into effect. An amendment is

operationally put into effect when the plan is administered in a manner consistent with the intended

plan amendment (rather than existing plan terms). For example, the deadline for adopting a

Discretionary Amendment with respect to a calendar year plan that increases participants’ accrued

benefits and is operationally put into effect during 2023 is December 31, 2023.

(2) Pre-approved plan that is a Governmental Plan.

(a) Interim Amendments. For a Governmental Plan, in the case of an Interim Amendment,

a Provider (or the Adopting Employer, if applicable) adopts the amendment timely if the plan

amendment is adopted by the later of:

(i) The last day of the second calendar year that begins after the issuance of the Required

Amendments List (described in Rev. Proc. 2022-40) in which the change in Qualification

Requirements or Section 403(b) Requirements appears; or

(ii) To the extent any action is required to be taken by the Adopting Employer in order to adopt

the Interim Amendment, 90 days after the close of the third regular legislative session of the

legislative body with the authority to amend the plan that begins on or after the date the plan

amendment becomes effective.

(b) Discretionary Amendments. For a Governmental Plan, in the case of a Discretionary

Amendment, an Adopting Employer (or a Provider, if applicable) adopts the plan amendment

timely if the Adopting Employer adopts the plan amendment by the later of:

(i) The end of the plan year in which the plan amendment is operationally put into effect; or

(ii) To the extent any action is required to be taken by the Adopting Employer in order to adopt the

Discretionary Amendment, 90 days after the close of the second regular legislative session of the

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legislative body with authority to amend the plan that begins on or after the date the amendment

becomes effective.

.02 Exceptions to section 7.01 plan amendment deadlines. Section 7.01 applies unless (1) a

statutory provision, or regulations or other guidance published in the IRB, sets forth a deadline

to timely adopt a Discretionary Amendment with respect to a plan year that is different from

the deadlines under section 7.01, or (2) a statutory provision, or regulations or other guidance

published in the IRB, sets forth a deadline to timely adopt a particular type of Interim Amendment

that is different from the deadlines under section 7.01.

SECTION 8. SCHEDULES FOR REMEDIAL AMENDMENT CYCLES

The schedules for Pre-approved Plan Cycles are available at https://www.irs.gov/retirementplans/determination-opinion-and-advisory-letters-6-year-cycle-for-pre-approved-plans-plans.

The IRS may revise the schedules to respond to changing circumstances and the needs of

Adopting Employers, as necessary. The IRS will announce any such revisions and the timing of

the Submission Period for each Cycle, which will be reflected in guidance published in the IRB

(either in a revenue procedure, an announcement, or in the applicable Cumulative List (which will

be issued prior to a Submission Period)).

PART III. PROCEDURES FOR A PROVIDER APPLYING FOR AN OPINION LETTER

SECTION 9. PROVISIONS REQUIRED IN PRE-APPROVED PLANS

.01 Provisions required in Pre-approved Plans.

(1) Provisions required in Qualified Pre-approved Plans. Each Qualified Pre-approved Plan

must comply with the requirements set forth in section 9.02. Section 9.03 sets forth additional

provisions required for a Qualified Pre-approved Plan that is a Standardized Plan. Section 9.04

sets forth additional provisions required for a Qualified Pre-approved Plan that includes an ESOP.

Section 9.05 sets forth additional provisions required in a Qualified Pre-approved Plan that

includes a Cash Balance Formula.

(2) Provisions required in Section 403(b) Pre-approved Plans. Each Section 403(b) Pre-approved

Plan must comply with the requirements set forth in section 9.06. Section 9.07 sets forth additional

provisions required for a Section 403(b) Pre-approved Plan that is a Standardized Plan. Section

9.08 sets forth additional provisions for a Section 403(b) Pre-approved Plan that is a Retirement

Income Account.

.02 Provisions required in a Qualified Pre-approved Plan.

(1) Provider amendments. Each Qualified Pre-approved Plan must include a procedure for

amendments by the Provider, so that a Provider may modify the plan to reflect changes provided

by statute, or in regulations or other guidance published in the IRB, and so that any correction

of the plan may be applied to all Adopting Employers. The procedure for amendments by the

Provider also must state that, for purposes of the Pre-approved Plan program, the Provider will no

longer have the authority to amend the plan on behalf of the Adopting Employer as of the date the

plan is treated as an individually designed plan pursuant to section 13.05.

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(2) Anti-cutback and vesting schedule change provision. Each Qualified Pre-approved Plan must

specifically provide for the protection required under § 411(a)(10) and (d)(6) in the event that the

Adopting Employer amends the plan (including by revising the options selected in the adoption

agreement or adopting a new plan). A plan may not be amended in a manner that could result in

the elimination of a benefit to the extent the benefit is required to be protected under § 411(d)

(6) with respect to the plan of any Adopting Employer, unless the amendment is permitted under

§ 1.401(a)-4 and either § 1.411(d)-3 or 1.411(d)-4. See section 9.02(5) for anti-cutback plan

provisions that are required in situations in which a plan becomes top-heavy. See § 411(d)(6)(C)

and § 1.411(d)‑4, Q&A-2(d), for certain exceptions applicable to ESOPs.

(3) Adopting Employer modification to satisfy §§ 415 and 416. Each Qualified Pre-approved

Plan must provide that plan provisions may be amended by the Adopting Employer to the extent

necessary to satisfy § 415 or 416 because of the required aggregation of multiple plans under

these sections. Generally, a space should be reserved in the plan with instructions for the Adopting

Employer to add such language as necessary to satisfy §§ 415 and 416, if applicable. In addition,

a space must be provided in the plan for the Adopting Employer to specify the interest rate and

mortality tables used for purposes of establishing the present value of accrued benefits in order

to compute the top-heavy ratio under § 416, if applicable. Such a space must be included in both

defined contribution plans and defined benefit plans. These provisions must be included in the

adoption agreement of an Adoption Agreement Plan.

(4) Aggregation for § 415 compliance. Each Qualified Pre-approved Plan must provide for

aggregation of all of an Adopting Employer’s defined contribution plans and all of an Adopting

Employer’s defined benefit plans as necessary to satisfy § 415(b) and (c) (each as modified by

§ 415(h)), and § 415(f).

(5) Top-heavy requirements. Each Qualified Pre-approved Plan must either provide that all of the

additional requirements applicable to top-heavy plans (described in § 416) apply at all times, or

provide that such requirements apply automatically if the plan is top-heavy, regardless of how

the options in the plan are completed. In the latter case, all of the requirements for determining

whether the plan is top-heavy must be included in the plan. (See Questions T-35 and T-36 of

§ 1.416-1.) In addition, a plan that is subject to the top-heavy requirements and that does not

include vesting rules for all years that are at least as favorable to participants as those set forth in

§ 416(b) must specifically provide that any vesting that occurs while the plan is top-heavy will not

be reduced if the plan ceases to be top-heavy.

(6) Provision regarding reliance. Each Qualified Pre-approved Plan must include, in close

proximity to the signature line, a statement that describes the limitations on Adopting Employer

reliance on an Opinion Letter. See section 12.

(7) Provision regarding conflicting trust provisions. Each Qualified Pre-approved Plan must

include a statement that the provisions of the single plan document or basic plan document override

any conflicting provision included in Trust or Custodial Account Documents used with the plan.13

(8) Dated signatures and adoption agreement provisions. Each Qualified Pre-approved Plan must

include an Adopting Employer signature and date line. The plan also must include a statement that

the Provider will inform the Adopting Employer of any amendments made to the plan or of the

discontinuance of the plan. The Adopting Employer must sign and date the adoption agreement

or signature page of the plan when it first adopts the plan and must complete, sign, and date a

new adoption agreement or signature page if the plan has been restated. In addition, the Adopting

Employer must complete a new dated adoption agreement or signature page if the Adopting

Employer modifies any prior elections or makes new elections. The signature requirement may

be satisfied by an electronic signature that reliably authenticates and verifies the adoption of the

adoption agreement or single plan document, or the restatement, amendment, or modification

Accordingly, if a plan is operated in a manner that is inconsistent with a provision of the single plan document or basic plan document, the plan will incur an operational failure even if

the plan is operated in a manner consistent with a provision of a Trust or Custodial Account Document that conflicts with the provision of the single plan document or basic plan document.

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thereof, by the Adopting Employer. In the case of an Adoption Agreement Plan, the adoption

agreement must state that it is to be used with only one basic plan document and must identify that

document. In addition, the adoption agreement must include a cautionary statement to the effect

that the failure to properly complete the adoption agreement may result in failure of the form of

the plan to meet the Qualification Requirements.

(9) Provider contact information. Each Qualified Pre-approved Plan must include the Provider’s

name, address, and telephone number (or a space for the address and telephone number of the

Provider’s authorized representative) for inquiries by Adopting Employers regarding the adoption

of the plan, the meaning of plan provisions, or the effect of the Opinion Letter. Each Qualified Preapproved Plan may provide additional contact information (such as an email address).

(10) Definition of employee

(a) In general. Each Qualified Pre-approved Plan must define an employee as any employee of the

Adopting Employer maintaining the plan or of any Related Employer. The definition of employee

also must include any individual treated under § 414(n) or (o) as an employee of any Employer

described in the preceding sentence.

(b) ESOPs. With respect to a Qualified Pre-approved Plan that includes an ESOP, employees who

meet the definition of employee in section 9.02(10)(a) may not participate in the ESOP unless

they are employed by the corporation that issues the stock held by the ESOP or by any corporation

that is a member of the same controlled group of corporations (within the meaning of § 1563(a),

as modified by § 409(l)(4)(B) and (C) and as determined without regard to § 1563(a)(4) and

(e)(3)(C)). For all other purposes under the ESOP, including nondiscrimination and coverage,

employees who meet the definition of employee in section 9.02(10)(a) are treated as employees.

(11) Crediting of service taking into account § 414(b), (c), (m), (n), and (o). Each Qualified Preapproved Plan must credit all service with any Related Employer as service with the Adopting

Employer maintaining the plan. In addition, in the case of an individual treated under § 414(n)

or (o) as an employee of any Employer described in the previous sentence, service with that

Employer must be credited to such individual.

(12) Uniformed Services Employment and Reemployment Rights Act and § 414(u). Each Qualified

Pre-approved Plan must include a provision reflecting the requirements of § 414(u). See Rev.

Proc. 96-49, 1996‑2 CB 369.

(13) Normal retirement age. Each Qualified Pre-approved Plan that is a pension plan and that is

not a Governmental Plan must have a normal retirement age that is not less than age 55.

.03 Additional provisions required in a Qualified Pre-approved Plan that is intended to be a

Standardized Plan. Each Qualified Pre-approved Plan that is intended to be a Standardized Plan

must meet the following requirements:

(1) Plan benefits all employees. Under the provisions governing eligibility and participation, the

plan by its terms must benefit all employees (regardless of whether any Employer is treated as

operating separate lines of business under § 414(r)) except those employees that may be excluded

under § 410(a)(1) or (b)(3). The plan may provide options as to whether some or all of the employees

described in § 410(a)(1) or (b)(3) are excluded, provided that the criteria for excluding employees

described in § 410(a)(1) or (b)(3) apply uniformly to all employees. A Standardized Plan generally

may not deny an accrual or allocation to an employee eligible to participate merely because the

employee is not an active employee on the last day of the plan year or has failed to complete a

specified number of hours of service during the year. However, the plan may deny an allocation

or accrual to an employee who is eligible to participate if the employee terminates service during

the plan year with not more than 500 hours of service and is not an active employee on the last

day of the plan year. A Qualified Pre-approved Plan will not fail to satisfy the requirements of this

section 9.03(1) merely because the plan provides, either as the result of an elective provision or

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by default in the absence of an election to the contrary, that individuals who become employees,

within the meaning of section 9.02(10)(a), as the result of a transaction described in § 410(b)(6)

date of the transaction and ending on a date that is not later than the earlier of the last day of the

first plan year beginning after the date of the transaction or the date of a significant change in

the plan or in the coverage of the plan. A transaction described in § 410(b)(6)(C) is an asset or

stock acquisition, merger, or other similar transaction involving a change in the employer of the

employees of a trade or business.

(2) Eligibility is not more favorable for highly compensated employees. The eligibility requirements

under the plan are not more favorable for highly compensated employees (as defined in § 414(q))

than for other employees.

(3) Allocations and benefits are based on total compensation. Under the plan, allocations, in the

case of a defined contribution plan (other than any cash or deferred arrangement portion), or

benefits, in the case of a defined benefit plan, are determined on the basis of total compensation.

The plan must provide that, for purposes of allocation, the definition of total compensation is

“participant’s compensation” within the meaning of § 415(c)(3), or compensation that otherwise

satisfies § 414(s) and § 1.414(s)‑1(c).

(4) Section 401(a)(4) safe harbors. Unless the plan is a target benefit plan or a § 401(k) and/or

401(m) plan, the plan must satisfy, by its terms, one of the design-based safe harbors described in

§ 1.401(a)(4)‑2(b)(2) (taking into account § 1.401(a)(4)‑2(b)(4)) or § 1.401(a)(4)-3(b)(3), (4), or

(5) (taking into account § 1.401(a)(4)-3(b)(6)).

(5) Benefits, rights and features are available to all employees. All benefits, rights, and features

under the plan (other than those, if any, that have been prospectively eliminated) are currently

available to all employees benefiting under the plan. (For information regarding benefits, rights,

and features and the determination of current availability, see § 1.401(a)(4)-4.)

(6) Past service credit satisfies safe harbor standard. Any past service credit under the plan

satisfies the safe harbor in § 1.401(a)(4)-5(a)(3).

(7) Hardship distribution satisfies safe-harbor standards. Any hardship distribution satisfies the

safe harbor standards in § 1.401(k)-1(d)(3).

.04 Additional provisions required in a Qualified Pre-approved Plan that includes an ESOP. Each

Qualified Pre-approved Plan that includes an ESOP feature must include the following provisions:

(1) Identification as an ESOP. A statement that the plan is an employee stock ownership plan

within the meaning of § 4975(e)(7) and is designed to invest primarily in employer stock;

(2) Definition of employer stock. A provision that defines employer stock in accordance with

§ 409(l)(1) or (2);

(3) Diversification. Provisions that meet the diversification requirements of § 401(a)(28)(B) or, if

applicable, § 401(a)(35);

(4) Valuation, independent appraiser, and allocation of earnings. Provisions that meet the

valuation, independent appraiser, and allocation of earnings requirements set forth in § 401(a)(28)

(C), § 54.4975-11(d)(5), and Rev. Rul. 80-155, 1980‑1 CB 84;

(5) Voting. Provisions that meet the voting requirements of § 409(e);

(6) Right-to-demand and put-option. Provisions that meet the right-to-demand and put-option

requirements of § 409(h), to the extent applicable;

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(7) Distribution. Provisions that meet the distribution requirements of § 409(o);

(8) Exempt loans. Provisions that set forth the requirements relating to exempt loans as described

in § 4975(d)(3), § 54.4975-7, and § 54.4975-11(c);

(9) Annual addition. Provisions that meet the ESOP annual addition requirements described in

§ 1.415(c)-1(f) and, if the ESOP is maintained by an employer that is a C corporation (as defined

in § 1361(a)(2)), the requirements described in § 415(c)(6);

(10) Forfeitures. If an ESOP provides for forfeitures, provisions that meet the forfeiture requirement

of § 54.4975-11(d)(4);

(11) S corporation employer securities. If an ESOP holds employer securities consisting of stock

in an S corporation (as defined in § 1361(a)(1)), provisions that meet the requirements of § 409(p)

and § 1.409(p)-1;

(12) C corporation employers. If an ESOP is maintained by employers that are C corporations,

provisions that meet the requirements of § 409(n); and

(13) Identification as C or S corporation. Provisions (in the plan document or adoption agreement)

that identify the Adopting Employer as either a C corporation or an S corporation.

(14) Definition of employee. See section 9.02(10)(b).

.05 Additional provisions required in a Qualified Pre-approved Plan that includes a Cash Balance

Plan

(1) Prior benefit structures protected. All Cash Balance Plans must ensure compliance with the

anti-cutback provisions of § 411(d)(6). To receive an Opinion Letter under this revenue procedure,

a Cash Balance Plan must provide that, at all times, any benefits accrued prior to the Adopting

Employer’s adoption of the Pre-approved Plan (and other benefits protected under § 411(d)(6)

(B)) are protected. A Cash Balance Plan that was the subject of a Conversion Amendment must

comply with the provisions of § 411(b)(5)(B)(iii) and § 1.411(b)(5)-1(c). However, an Opinion

Letter will not be issued for a plan that uses an opening hypothetical account balance as described

in § 1.411(b)(5)-1(c)(3) to meet the requirements of § 1.411(b)(5)-1(c).

(2) Step-rate structure of Principal Credits. Cash Balance Plans that include any structure of

Principal Credits that increase with age, service, or any other measure during a participant’s

employment must be definitely determinable, operationally nondiscriminatory, and at all times

in compliance with the “133 1/3 percent rule” of § 411(b)(1)(B) and the regulations thereunder.

Employers may not rely on the Opinion Letter with respect to the requirements of § 411(b)(1)

for increasing Principal Credit schedules that are created by Adopting Employers by completing

blanks in the plan formula, but may rely on the Opinion Letter with respect to the requirements of

§ 411(b)(1) for increasing Principal Credit schedules specified in the Pre-approved Plan document.

.06 Provisions required in a Section 403(b) Pre-approved Plan.

(1) Provider amendments. Each Section 403(b) Pre-approved Plan must include a procedure for

amendments by the Provider, so that changes in the Code, or in regulations or other guidance

published in the IRB, and any correction of the plan may be applied to all Adopting Employers.

The procedure for amendments by the Provider also must state that, for purposes of the Preapproved Plan program, the Provider will no longer have the authority to amend the plan on

behalf of the Adopting Employer as of the date the plan is treated as an individually designed plan

pursuant to section 13.05.

(2) Adopting Employer modification to satisfy § 415. Each Section 403(b) Pre-approved Plan must

provide that plan provisions may be amended by the Adopting Employer to the extent necessary

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to satisfy § 415 because of the required aggregation of multiple plans under these sections.

Generally, a space should be reserved in the plan with instructions for the Adopting Employer

to add such language as necessary to satisfy § 415. These provisions must be included in the

adoption agreement of an Adoption Agreement Plan.

(3) Aggregation for § 415 compliance. Each Section 403(b) Pre-approved Plan must provide for

aggregation of all of an Adopting Employer’s defined contribution plans as necessary to satisfy

§ 415(c) (as modified by § 415(h)), (f), and (k)(4).

(4) Provision regarding reliance. Each Section 403(b) Pre-approved Plan must include, in close

proximity to the signature line, a statement that describes the limitations on Adopting Employer

reliance on an Opinion Letter. See section 12.

(5) Provision regarding conflicting provisions in Investment Arrangements or other documents.

Each Section 403(b) Pre-approved Plan must provide that, in the event of any conflict between

the terms of the single plan document or the basic plan document and adoption agreement, as

applicable, and the terms of Investment Arrangements under the plan (or of any other documents

incorporated by reference into the plan), the terms of the single plan document or the basic plan

document and adoption agreement, as applicable, will govern. See section 12.03(5) for the effect

on reliance in the event of a conflict. An Employer that adopts a Section 403(b) Pre-approved Plan

should take this requirement into account in considering Investment Arrangements to be offered

under the plan, as well as other documents that may be incorporated by reference. Since the terms

of Investment Arrangements under a Section 403(b) Pre-approved Plan must be incorporated by

reference into the plan and those arrangements may not have any provisions that are inconsistent

with § 403(b), plan terms that are required in a single plan document or the basic plan document

and adoption agreement, as applicable, under this section 9 should not create a conflict with the

terms of the Investment Arrangements under a properly drafted Section 403(b) Pre-approved Plan.

If there nevertheless is a conflict, the terms of the single plan document or the basic plan document

and adoption agreement, as applicable, must control.14

(6) Dated signatures and adoption agreement provisions. Each Section 403(b) Pre-approved

Plan must include an Adopting Employer signature and date line. The plan also must include a

statement that the Provider will inform the Adopting Employer of any amendments made to the

plan or of the discontinuance of the plan. The Adopting Employer must sign and date the adoption

agreement or signature page of the plan when it first adopts the plan and must complete, sign,

and date a new adoption agreement or signature page if the plan has been restated. In addition,

the Adopting Employer must complete a new dated adoption agreement or signature page if it

modifies any prior elections or makes new elections. The signature requirement may be satisfied

by an electronic signature that reliably authenticates and verifies the adoption of the adoption

agreement or single plan document, or the restatement, amendment, or modification thereof, by

the Adopting Employer. In the case of an Adoption Agreement Plan, the adoption agreement must

state that it is to be used with only one basic plan document and must identify that document. In

addition, the adoption agreement must include a cautionary statement to the effect that the failure

to properly complete the adoption agreement may result in failure of the form of the plan to meet

the Section 403(b) Requirements.

(7) Provider contact information. Each Section 403(b) Pre-approved Plan must include the

Provider’s name, address, and telephone number (or a space for the address and telephone number

of the Provider’s authorized representative) for inquiries by Adopting Employers regarding the

adoption of the plan, the meaning of plan provisions, or the effect of the Opinion Letter. Each

Section 403(b) Pre-approved Plan may provide additional contact information (such as an email

address).

Accordingly, if a plan is operated in a manner that is inconsistent with a provision of the single plan document or basic plan document, the plan will incur an operational failure even if

the plan is operated in a manner consistent with a provision of a Trust or Custodial Account Document that conflicts with the provision of the single plan document or basic plan document.

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(8) Definition of employee. Each Section 403(b) Pre-approved Plan must define an employee as

any employee of the Adopting Employer maintaining the plan or any other Related Employer.

(9) Crediting of service taking into account § 414(b), (c), (m), and (o). Each Section 403(b) Preapproved Plan must credit all service with any Related Employer as service with the Adopting

Employer maintaining the plan.

(10) Uniformed Services Employment and Reemployment Rights Act and § 414(u). Each Section

403(b) Pre-approved Plan must include a provision reflecting the requirements of § 414(u). See

Rev. Proc. 96‑49.

(11) Inclusion of Investment Arrangements. A Section 403(b) Pre-approved Plan includes the

Investment Arrangements under the plan in addition to the single plan document or the basic

plan document and adoption agreement. Every Section 403(b) Pre-approved Plan must therefore

incorporate by reference the terms of the Investment Arrangements under the plan. While the IRS’s

review of an application for an Opinion Letter is limited to the terms of the single plan document

or the basic plan document and adoption agreement, as applicable, the terms of Investment

Arrangements and other documents that are incorporated by reference in the plan must satisfy

applicable law and may not have any provisions that are inconsistent with the Section 403(b)

Requirements. For example, if the forms of annuity benefit available under a plan are described

in the Investment Arrangements under the plan, the terms of the Investment Arrangements must

satisfy, if applicable to the plan, the joint and survivor annuity requirements of section 205 of the

Employee Retirement Income Security Act of 1974 (ERISA), Pub. L. 93-406, 88 Stat. 82954, and

any applicable related rules, such as rules relating to transfers of benefits that are subject to the

joint and survivor annuity requirement, and may not have any provisions that are inconsistent with

the Section 403(b) Requirements.

(12) Plan must satisfy Section 403(b) Requirements independent of Investment Arrangements.

The IRS’s review of a Section 403(b) Pre-approved Plan will consider only the terms of the single

plan document or the basic plan document and adoption agreement, as applicable. Accordingly,

the provisions described in this section 9.06 (and sections 9.07 and 9.08, if applicable) must

be included in the single plan document or the basic plan document or adoption agreement, as

appropriate, of every Section 403(b) Pre-approved Plan, regardless of the terms of any Investment

Arrangements under the plan or any other documents that may be incorporated by reference. This

does not preclude the adoption of a Section 403(b) Pre-approved Plan (including a Standardized

Plan) if different Investment Arrangements under a plan have different features or prevent the

inclusion of additional provisions in the terms of the Investment Arrangements under the plan or

other documents incorporated by reference. It also does not prevent a Section 403(b) Pre-approved

Plan from using Investment Arrangements that are more restrictive than required by § 403(b) or

the single plan document or the basic plan document and adoption agreement. However, the terms

of the single plan document or the basic plan document and adoption agreement, as applicable,

must satisfy the requirements of applicable law and this section 9.06 (and sections 9.07 and 9.08,

if applicable) independent of any Investment Arrangements under the plan or any other documents

incorporated by reference. For example, an Adopting Employer’s Adoption Agreement Plan may

offer both Investment Arrangements that permit loans and Investment Arrangements that do

not permit loans. In this case, (1) the basic plan document must include provisions reflecting

the Section 403(b) Requirements, including §§ 1.403(b)-6 and 1.72(p)-1, and (2) the basic plan

document and adoption agreement, as completed by the Adopting Employer, must provide that, to

the extent permitted by the terms governing the applicable Investment Arrangement, participant

loans are available. Similarly, for example, if an Adopting Employer’s Single Document Plan

offers both Investment Arrangements that permit loans and Investment Arrangements that do not

permit loans, then the single plan document must include provisions reflecting the Section 403(b)

Requirements, including §§ 1.403(b)-6 and 1.72(p)-1, and must provide that, to the extent

permitted by the terms governing the applicable Investment Arrangement, participant loans are

available.

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(13) Vesting. A Section 403(b) Pre-approved Plan may provide a vesting schedule for

contributions other than elective deferrals, rather than provide for full and immediate vesting of

the contributions. Except in the case of certain Nonstandardized Plans described in this section

9.06(13), contributions other than elective deferrals (and earnings thereon) under a Section 403(b)

Pre-approved Plan must vest at least as rapidly as would be required to satisfy the minimum

vesting requirements of § 411(a)(2)(B) applicable to a qualified plan under § 401(a), even if the

plan is not subject to the parallel minimum vesting requirements under section 203 of ERISA. A

Nonstandardized Plan that is designed to be used for a plan that is not subject to the minimum

vesting requirements of section 203 of ERISA (for example, a Governmental Plan) is not required

to provide that contributions other than elective deferrals will vest at least as rapidly as would

be required to satisfy § 411(a)(2)(B). Every Section 403(b) Pre-approved Plan that provides a

vesting schedule for contributions other than elective deferrals must also satisfy the following

requirements: (1) the portion of a participant’s interest in the plan that is not vested must be

maintained in a separate account for the participant that is treated as a separate contract to which

§ 403(c) (or, in case of a custodial account, § 401(a)) applies, (2) as amounts in the participant’s

separate account become nonforfeitable, they must be removed from the separate account and

treated as amounts held under a § 403(b) plan, to the extent permitted under § 1.403(b)-3(d)(2)

(ii), and (3) all nonvested amounts remaining in the participant’s separate account must become

nonforfeitable upon termination of the plan.

(14) Appendix of administrative responsibilities. Every Section 403(b) Pre-approved Plan must

include an appendix to the plan that will be used to identify the parties responsible for the various

administrative functions under the plan that are necessary to comply with the Section 403(b)

Requirements and other tax requirements, including the requirements that apply on the basis of

the aggregated Investment Arrangements issued to a participant under the plan, and will list all the

vendors of Investment Arrangements approved for use under the plan. Changes to the information

in the required appendix will not affect the Adopting Employer’s ability to rely on an Opinion

Letter.

(15) Identifying category of Employer and plan. The adoption agreement or single plan document

of every Section 403(b) Pre-approved Plan must satisfy the following requirements:

(a) Although a single adoption agreement may be made available to different categories of

Employers, the adoption agreement must require the Adopting Employer to show its status as an

Employer eligible to maintain a § 403(b) plan by indicating whether the Adopting Employer is:

(i) A government-sponsored educational organization described in § 170(b)(1)(A)(ii) (a public

school);

(ii) A tax-exempt organization described in § 501(c)(3) that is exempt from tax under § 501(a);

(iii) An employer of a minister described in § 414(e)(5)(A); or

(iv) A minister described in § 414(e)(5)(A).

(b) The adoption agreement or single plan document must require the Adopting Employer to show

its status with respect to the nondiscrimination requirements in § 1.403(b)-5 by indicating whether

the plan is:

(i) A Governmental Plan;

(ii) A plan of an Adopting Employer that is a Church or QCCO for employees of the Church or

QCCO; or

(iii) A plan not described in (i) or (ii) of this section 9.06(15)(b).

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(16) Separate Section 403(b) Pre-approved Plan for Retirement Income Account. A single Section

403(b) Pre-approved Plan may not be used for both a Section 403(b) Pre-approved Plan that is

a Retirement Income Account and a Section 403(b) Pre-approved Plan that is not a Retirement

Income Account. Thus, if a Provider also has a Section 403(b) Pre-approved Plan that is not a

Retirement Income Account, a separate Section 403(b) Pre-approved Plan is required for a plan

that is intended to constitute a Retirement Income Account.

.07 Additional provisions required in a Section 403(b) Pre-approved Plan that is intended to be a

Standardized Plan. Each Section 403(b) Pre-approved Plan that is intended to be a Standardized

Plan must meet the following requirements:

(1) Hardship distribution satisfies safe-harbor standards. Any hardship distribution satisfies the

safe harbor standards in the regulations under § 401(k).

(2) Section 415 treatment of § 403(b) annuity contracts. Under § 1.415(f)‑1(a)(3), all § 403(b)

annuity contracts purchased by an Employer for a participant are treated as one § 403(b) annuity

contract for purposes of § 415. Section 1.415(f)‑1(f)(2) includes a special rule providing that,

if a participant on whose behalf a § 403(b) annuity contract is purchased is in control of any

employer for a limitation year, then the § 403(b) annuity contract is aggregated with all other

defined contribution plans maintained by that employer. For these purposes, a custodial account

and a Retirement Income Account are each treated as a § 403(b) annuity contract. Every Section

403(b) Pre-approved Plan that is intended to be a Standardized Plan must include plan language

reflecting these rules. In particular, the plan language must coordinate the application of the § 415

limits to all the Standardized Plans of the Adopting Employer and its Related Employers so that,

if the only § 403(b) plans maintained by the Adopting Employer and its Related Employers are

Standardized Plans, then the plans will satisfy § 415(c) and § 1.415(f)‑1(a)(3) without requiring

the addition of overriding plan language.

(3) Elective deferrals only or additional requirements for contributions that are not elective

deferrals. A Section 403(b) Pre-approved Plan that is intended to be a Standardized Plan must

provide either:—

(a) That the only contributions that an Adopting Employer may elect to provide under the plan are

elective deferrals, or

(b) With respect to any contributions other than elective deferrals, the plan must satisfy all of the

following requirements:

(i) Plan benefits all employees. Under the provisions governing eligibility and participation, the

plan by its terms must benefit all employees except those employees that may be excluded under

§ 1.410(b)-6 and employees listed in § 1.403(b)-5(b)(4)(ii)(D) or (E). The plan may provide options

as to whether some or all of the employees described in § 1.410(b)-6 are excluded, provided that

the criteria for excluding employees described in § 1.410(b)-6 apply uniformly to all employees.

A Standardized Plan generally may not deny an allocation to an employee eligible to participate

merely because the employee is not an active employee on the last day of the plan year or has

failed to complete a specified number of hours of service during the year. However, the plan may

deny an allocation to an employee who is eligible to participate if the employee terminates service

during the plan year with not more than 500 hours of service and is not an active employee on

the last day of the plan year. A plan will not fail to satisfy the requirements of this section 9.07(3)

with respect to contributions other than elective deferrals merely because the plan provides, either

as the result of an elective provision or by default in the absence of an election to the contrary,

that individuals who become employees, within the meaning of section 9.06(8), as the result of

a transaction described in § 410(b)(6)(C) are excluded from eligibility to participate in the plan

during the period beginning on the date of the transaction and ending on a date that is not later

than the earlier of the last day of the first plan year beginning after the date of the transaction or

the date of a significant change in the plan or in the coverage of the plan. A transaction described

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in § 410(b)(6)(C) is an asset or stock acquisition, merger, or other similar transaction involving a

change in the employer of the employees of a trade or business.

(ii) Eligibility is not more favorable for highly compensated employees. The eligibility requirements

under the plan are not more favorable for highly compensated employees (as defined in § 414(q))

than for other employees.

(iii) Allocations are based on total compensation. Under the plan, allocations (other than any

elective deferral portion) are determined on the basis of total compensation. The plan must

provide that, for purposes of allocations, the definition of total compensation is “participant’s

compensation” within the meaning of § 415(c)(3), or compensation that otherwise satisfies

§ 414(s) and § 1.414(s)‑1(c).

(iv) Section 401(a)(4) safe harbors. If the plan provides for contributions other than elective

deferrals and matching contributions, the plan must satisfy one of the design-based safe harbors

described in § 1.401(a)(4)-2(b)(2) with respect to the contributions.

(v) Benefits, rights and features are available to all employees. All benefits, rights, and features

under the plan (other than those, if any, that have been prospectively eliminated) are currently

available to all employees benefiting under the plan. (For information regarding benefits, rights,

and features and the determination of current availability, see § 1.401(a)(4)-4.)

.08 Additional provisions required in a Section 403(b) Pre-approved Plan intended to be a

Retirement Income Account. Each Section 403(b) Pre-approved Plan that is intended to be a

Retirement Income Account must meet the following requirements:

(1) Identification as Retirement Income Account. The plan must state the intent to be a Retirement

Income Account in accordance with § 1.403(b)-9(a)(2)(ii).

(2) Separate accounting, investment performance, and exclusive benefit. The terms of the plan

must satisfy the separate accounting, investment performance, and exclusive benefit requirements

of § 1.403(b)-9(a)(2)(i).

(3) Life annuity requirements. If the plan provides for benefits in the form of a life annuity, the

plan must satisfy the present value and benefit guarantee requirements of § 1.403(b)-9(a)(5), and

the present value must be based on reasonable actuarial assumptions that are either set forth in the

plan or incorporated by reference into the plan.

(4) Nondiscrimination requirements. The terms of the plan must set forth the nondiscrimination

requirements of § 403(b)(12). The plan also must state that the nondiscrimination requirements

are applied to any employee other than an employee of a QCCO or Church.

(5) Multiple Employers that are not Related Employers. In the case of multiple Employers that are

not Related Employers participating in the plan, each Adopting Employer must identify whether

it is a Church, QCCO, non-QCCO, or minister.

SECTION 10. OPINION LETTERS - SCOPE

.01 General limits on Opinion Letters. An Opinion Letter constitutes a determination that the form of

a Pre-approved Plan satisfies the Qualification Requirements or the Section 403(b) Requirements,

as applicable, subject to the requirements and limitations of this revenue procedure. An Opinion

Letter is issued only to a Provider or Mass Submitter. The IRS’s review of a Provider’s or Mass

Submitter’s application for an Opinion Letter for a Pre-approved Plan will consider only the terms

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of the single plan document or the basic plan document and adoption agreement, as applicable.

The IRS’s review will not consider, and an Opinion Letter will not express an opinion with respect

to, the terms of any Trust or Custodial Account Document for (or Investment Arrangement under)

the plan of any Adopting Employer or any other documents that may be incorporated by reference

into an Adopting Employer’s plan. An Opinion Letter for a Qualified Pre-approved Plan does not

constitute a ruling or a determination as to the exempt status of related trusts or custodial accounts

under § 501(a).

.02 Plans for which an Opinion Letter will not be issued.

(1) For a Pre-approved Plan, an Opinion Letter will not be issued for:

(a) A plan under which the § 415 limitations are incorporated by reference;

(b) A plan under which the actual contribution percentage (ACP) test under § 401(m)(2) is

incorporated by reference;

described in the safe harbor standards in the regulations under § 401(k), unless these distributions

are subject to nondiscriminatory and objective criteria included in the plan;

(d) A plan that includes blanks or fill-in provisions for the Adopting Employer to complete,

unless the provisions have parameters that preclude the Adopting Employer from completing

the provisions in a manner that could violate the Qualification Requirements or Section 403(b)

Requirements, as applicable;

(e) A plan designed to satisfy the provisions of § 105;

(f) A plan that includes § 401(h) accounts; or

(g) A plan that includes purported fail-safe provisions for § 401(a)(4) or the average benefit test

under § 410(b).

(2) For a Qualified Pre-approved Plan, in addition to the circumstances described in section

10.02(1), an Opinion Letter will not be issued for:

(a) A multiemployer plan;

(b) A single-employer collectively bargained plan (however, this rule does not preclude an

employer from covering employees of the employer that are included in a unit covered by a

collective bargaining agreement if it is adopting a Pre-approved Plan for its non-bargaining

employees or from adopting a Pre-approved Plan pursuant to such agreement as a single-employer

plan that covers only bargaining employees of the employer);

(d) An ESOP that is a combination of a stock bonus plan and a money purchase plan;

(e) An ESOP that provides for the holding of preferred employer stock, including an ESOP that

holds stock described in § 409(l)(3);

(f) A Statutory Hybrid Plan with any of the following features:

(i) A statutory hybrid benefit formula that is not a Cash Balance Formula, such as a formula under

which benefits are determined by reference to the current value of an accumulated percentage of

the participant’s average compensation (a Pension Equity Plan or PEP);

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(ii) A provision under which Interest Credits are based on rates of return that are subject to

participant choice, or any rate that does not meet the requirements of § 1.411(b)(5)-1(d);

(iii) A provision under which a rate used to determine Interest Credits is based on the actual rate of

return on aggregate assets of the plan described in § 1.411(b)(5)-1(d)(5)(ii)(A) or the rate of return

on certain regulated investment companies (RICs) described in § 1.411(b)(5)-1(d)(5)(iv) (unless

the plan provides that the rate used to determine Interest Credits is equal to the actual rate of return

on the aggregate assets of the plan), or is based on or equal to the actual rate of return on a subset

of plan assets (as described in § 1.411(b)(5)-1(d)(5)(ii)(B));

(iv) A Conversion Amendment, except for plans providing that, after the effective date of the

Conversion Amendment, a participant’s accrued benefit is equal to the sum of accruals under the

prior formula plus the benefit based on the Cash Balance Formula (“A+B Conversion”);

(v) A provision that uses the 3-percent accrual rule or the fractional accrual rule under § 411(b)(1)

(A) or (C) to satisfy the accrued benefit requirements under § 411(b)(1);

(vi) A provision for funding exclusively through insurance contracts as described in § 412(e)(3);

(vii) A provision for Offsets of benefits accrued under another plan (the “offsetting plan”), unless:

(A) The Offset is applied on an accumulated basis at the participant’s annuity starting date, rather

than offsetting each year’s Principal Credit by that year’s accruals or contributions under the

offsetting plan;

(B) If plan provisions are consistent with treatment of the Cash Balance Formula as a lump

sum-based benefit formula under § 1.411(a)(13)-1(d)(3), then the offsetting plan is a defined

contribution plan, and the Offset is applied by subtracting the account balance under the defined

contribution plan from the hypothetical account balance under the Cash Balance Formula prior to

converting the balance to an annuity benefit;

can be computed by subtracting the account balance under the offsetting plan from the hypothetical

account balance under the Cash Balance Formula), including the requirement that the offsetting

plan may not be a § 401(k) plan or a § 401(m) plan;

(D) For the purpose of determining the amount of the Offset against any defined benefit formula,

the Offset reflects the value of any distributions from the offsetting plan made prior to the

participant’s annuity starting date under the Cash Balance Plan;

(E) The Offset is applied on a uniform basis for all participants;

(F) The plan provides a minimum accrued benefit to participants (expressed as a lifetime annuity

commencing at normal retirement age) of no less than 0.5% of compensation for each year of

credited service, which is not reduced by the Offset applied to other formulas under the plan;

(G) Accrued benefits, considered in conjunction with defined contribution accounts subject to any

Offset, meet nondiscrimination requirements; and

(H) The amount of the Offset, including any procedures and actuarial assumptions for converting

a defined contribution account balance (under a specifically named defined contribution plan) to

an annuity amount, is definitely determinable;

(g) A plan described in § 414(k) (relating to a defined benefit plan that provides a benefit derived

from employer contributions that is based partly on the balance of the separate account of a

participant);

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(h) A target benefit plan, other than a plan that, by its terms, satisfies each of the safe harbor

requirements described in § 1.401(a)(4)-8(b)(3)(i), as well as the additional rules in § 1.401(a)

(4)-8(b)(3)(ii) through (vii);

(i) A governmental defined benefit plan that includes a “deferred retirement option plan” (DROP)

feature, or similar provisions in which a participant earns additional benefits for continued

employment post-normal retirement age in the form of credits to a separate account (including a

cash balance account or other arrangement) under the same plan;

(j) A plan under which the actual deferral percentage (ADP) test under § 401(k)(3) is incorporated

by reference;

(k) A fully insured § 412(e)(3) plan, other than a non-statutory hybrid plan that by its terms satisfy

the safe harbor in § 1.401(a)(4)-3(b)(5);

(l) An eligible combined plan within the meaning of § 414(x)(2); or

(m) A Variable Annuity Plan.

(3) For Section 403(b) Pre-approved Plans, in addition to the circumstances described in section

10.02(1), an Opinion Letter will also not be issued for:

(a) A TEFRA church defined benefit plan (see § 1.403(b)-10(f)(2)); or

(b) A plan grandfathered under Rev. Rul. 82-102, 1982-1 CB 62.

.03 Issues an Opinion Letter will not consider.

(1) Title I issues. Except as otherwise provided in guidance, an Opinion Letter does not express an

opinion, and may not be relied upon, with respect to whether any plan is subject to the requirements

of Title I of ERISA or whether a plan satisfies any of those requirements.

(2) Issues related to a Section 403(b) Pre-approved Plan’s coverage of multiple employers that

are not Related Employers. An Opinion Letter does not express an opinion, and may not be relied

upon, with respect to whether the plan satisfies § 403(b)(15) or any other requirements that apply

related to a plan’s coverage of multiple employers that are not Related Employers.

.04 IRS discretion to decline to issue an Opinion Letter. The IRS may, in its discretion, decline to

issue an Opinion Letter for other types of plans or issues not described in this section 10.

.05 Nonapplicability of this revenue procedure to IRAs (including traditional IRAs, Roth IRAs,

SEPs, and Simple IRAs). An Opinion Letter will not be issued under this revenue procedure for

prototype plans intended to meet the requirements for individual retirement arrangements under

§ 408.15

SECTION 11. ELIGIBILITY FOR THE CYCLE SYSTEM

.01 Initial eligibility for the Cycle system.

See the Form 5305 series, which provides model IRA documents that have been pre-approved by the IRS and for which an opinion letter is not needed. See also Rev. Proc. 87-50, 1987‑2 CB

647, as modified by Rev. Proc. 97-29, 1997-1 CB 698; Rev. Proc. 98-59, 1998-2 CB 727; and Rev. Proc. 2010-48, 2010‑50 IRB 828, for administrative procedures for seeking opinion letters

for individual retirement arrangements under § 408.

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(1) In general. An Employer that initially adopts a Pre-approved Plan16 may adopt the plan at any

time during a Cycle. Subject to section 11.01(2), upon an Employer’s adoption of a Pre-approved

Plan, the plan becomes subject to the rules applicable to the Cycle system and the procedures set

forth in this revenue procedure. In particular, while a plan is subject to the Cycle system, the plan’s

Disqualifying Provisions or Form Defects, as applicable, will have the Remedial Amendment

Periods described in section 6. After a plan is no longer subject to the Cycle system, the plan’s

Disqualifying Provisions or Form Defects will be subject to the Remedial Amendment Period rules

for an individually designed plan. See Rev. Proc. 2022-40. Accordingly, as of the date that a plan

is no longer subject to the Cycle system, if the Remedial Amendment Period for a Disqualifying

Provision or Form Defect would be expired under the rules for individually designed plans, then

the Remedial Amendment Period will be expired, notwithstanding that the Remedial Amendment

Period would not be expired for a Pre-approved Plan. To continue to be eligible for the Cycle

system, the Employer must follow the rules in this revenue procedure for continued eligibility.

See, in particular, sections 11.02 and 13.

(2) Prior plan must be a valid plan. If an Employer that maintains an individually designed plan

amends the plan by adopting a Pre-approved Plan, the form of the individually designed plan

must satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable, at the

time the Pre-approved Plan is adopted. Accordingly, prior to adopting the Pre-approved Plan, the

Employer must have either timely corrected any Disqualifying Provisions or Form Defects in the

individually designed plan before the expiration of the applicable Remedial Amendment Period

for such Disqualifying Provision or Form Defect, or have corrected any plan document failure

under EPCRS.

.02 Continuing eligibility for the Cycle system - requirement to adopt newly approved Preapproved Plan. For a Pre-approved Plan adopted pursuant to section 11.01 to continue to be

eligible for the Cycle system, by the end of the Employer Adoption Window for each Cycle, the

Adopting Employer must adopt a newly approved Pre-approved Plan (a newly approved version

of the same plan or a newly approved version of a different Pre-approved Plan). If, during the

Employer Adoption Window for a Cycle, instead of adopting a newly approved Pre-approved

Plan, an Adopting Employer amends its Pre-approved Plan by adopting an individually designed

plan, the plan will continue to be subject to the Remedial Amendment Period rules applicable to

Pre-approved plans until the end of the Employer Adoption Window for that Cycle; however,

for all other purposes, upon adoption of the individually designed plan, the plan will be treated

as an individually designed plan. This means, for example, that if the plan is submitted for a

determination letter during the Employer Adoption Window, the eligibility conditions applicable

to submission of a determination letter set forth in section 9 of Rev. Proc. 2022-40 will apply, and

the scope of plan review will be based on the applicable Required Amendments List, as described

in section 10 of that revenue procedure. In contrast, if, by the end of any Employer Adoption

Window, an Adopting Employer does not amend its Pre-approved Plan by adopting a newly

approved Pre-approved Plan or any other plan, the plan will be treated as an individually designed

plan at the end of that Employer Adoption Window. Accordingly, the plan will become subject

to the rules relating to the Remedial Amendment Period, plan amendment deadlines, and the

eligibility requirements applicable to individually designed plan determination letter applications

set forth in Rev. Proc. 2022-40 at that time. Once a plan is treated as an individually designed plan,

the Adopting Employer is no longer able to rely on an Opinion Letter for that Cycle.

SECTION 12. EMPLOYER RELIANCE ON OPINION LETTER

.01 Standardized Plans.

For purposes of this section 11, the term Pre-approved Plan includes a plan that was not in existence in the immediately preceding Cycle and that has been submitted for (but has not yet

received) an Opinion Letter for the Cycle.

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(1) Except as set forth in section 12.01(2), (3) and (4), an Adopting Employer of a Standardized

Plan may rely on the plan’s Opinion Letter that the form of the Adopting Employer’s plan satisfies,

in the case of a Section 403(b) Pre-approved Plan, the Section 403(b) Requirements (including,

if applicable, the requirements of §§ 401(a)(4) and 410(b)) or, in the case of a Qualified Preapproved Plan, the Qualification Requirements, if:

(a) The Standardized Plan has a currently valid Opinion Letter,

(b) The coverage and contributions or benefits under the Adopting Employer’s plan are not more

favorable for highly compensated employees (as defined in § 414(q)) than for other employees,

provided under the Standardized Plan or to make amendments as described in section 13.02

relating to employer amendments that will not affect reliance, and

(d) In the case of a Section 403(b) Pre-approved Plan, either (i) the only contributions under the

plan are elective deferrals, or (ii) the plan provides for contributions other than elective deferrals

and all of the Adopting Employer’s Related Employers are employers described in § 403(b)(1)(A).

If the plan provides for contributions other than elective deferrals and the Adopting Employer’s

controlled group includes any employer that is not an employer described in § 403(b)(1)(A),

the Adopting Employer may rely on the plan’s Opinion Letter, except with respect to whether

contributions other than elective deferrals under the plan satisfy the requirements of §§ 401(a)(4)

and 410(b).

(2) An Adopting Employer may not rely on an Opinion Letter for a Standardized Plan with respect

to the requirements of § 415 (and § 416, in the case of a Qualified Pre-approved Plan) without

obtaining a determination letter (see section 25) if the Adopting Employer, or, in the case of a

Section 403(b) Pre-approved Plan, any of its Related Employers, maintains or maintained at any

time, another plan, including a Standardized Plan, that was qualified or determined to be qualified

or a 403(b) plan and that covers or covered some of the same participants. An Employer that

adopts a Standardized Plan that is a defined contribution plan is not considered to have maintained

another plan merely because the Employer has maintained another defined contribution plan,

provided such other plan has been terminated prior to the effective date of the Standardized Plan

and no annual additions have been credited to the account of any participant under such other plan

as of any date within a limitation year of the Standardized Plan. For this purpose, a plan that has

been amended from an individually designed plan to a Standardized Plan is not considered another

plan. To be a plan that has been amended from an individually designed plan to a Standardized

Plan and thus for the Employer to be able to rely on the Standardized Plan with respect to the

requirements of §§ 415 and 416 without obtaining a determination letter, the individually designed

plan that has been amended into the Standardized Plan must be of the same type (for example,

both defined benefit plans).

(3) An Adopting Employer of a Standardized Plan may not rely on an Opinion Letter for the

Standardized Plan with respect to:

(a) Whether the timing of any amendment to the Adopting Employer’s plan (or series of

amendments) satisfies the nondiscrimination requirements of § 1.401(a)(4)‑5(a), except with

respect to plan amendments granting past service that meet the safe harbor described in § 1.401(a)

(4)-5(a)(3) and are not part of a pattern of amendments that significantly discriminates in favor of

highly compensated employees; or

(b) Whether the Adopting Employer’s plan satisfies the effective availability requirement of

§ 1.401(a)(4)-4(c) with respect to any benefit, right, or feature.

An Employer that adopts a Standardized Plan as an amendment to a plan other than a Standardized

Plan may not rely on the Opinion Letter with respect to whether a benefit, right, or feature that

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is prospectively eliminated satisfies the current availability requirements of § 1.401(a)(4)-4, if

applicable.

(4) In the case of a Qualified Pre-approved Plan, an Adopting Employer of a Standardized Plan

that is a defined benefit plan may rely on the plan’s Opinion Letter with respect to the requirements

of § 401(a)(26) only if the plan satisfies the requirements of § 401(a)(26) with respect to its prior

benefit structure (within the meaning of § 1.401(a)(26)-3) or is deemed to satisfy § 401(a)(26)

pursuant to regulations thereunder.

(5) For SIMPLE plans described in § 401(k)(11) and (m)(10), an Adopting Employer may also

rely on the plan’s Opinion Letter regarding whether the form of the Adopting Employer’s plan

satisfies the requirements of those sections.

(6) For a starter 401(k) deferral-only plan described in § 401(k)(16) or a safe harbor deferral-only

plan described in § 403(b)(16), an Adopting Employer may also rely on the plan’s Opinion Letter

regarding whether the form of the Adopting Employer’s plan satisfies the requirements of those

sections.

.02 Nonstandardized Plans.

(1) An Adopting Employer of a Nonstandardized Plan may rely on the plan’s Opinion Letter that

the form of the Adopting Employer’s plan satisfies the Qualification Requirements or Section

403(b) Requirements, as applicable, if:

(a) The Nonstandardized Plan has a currently valid Opinion Letter, and

(b) The Adopting Employer has not amended the plan other than to choose options provided under

the plan or to make amendments as described in section 13.02 relating to employer amendments

that will not affect reliance.

(2) Except as otherwise provided in this section 12.02, an Adopting Employer of a Nonstandardized

Plan may not rely on the plan’s Opinion Letter with respect to the requirements of:

(a) In the case of a Qualified Pre-approved Plan, §§ 401(a)(4), 401(a)(26), 401(l) , 410(b), or

414(s) (or, in the case of a Section 403(b) Pre-approved Plan, §§ 401(a)(4), 410(b), or 414(s)); or

(b) Section 415 (or § 416, in the case of a Qualified Pre-approved Plan) if the Adopting Employer,

or any of its Related Employers, maintains or has ever maintained another plan covering some of

the same participants. For this purpose, whether an employer maintains or has ever maintained

another plan is determined using principles consistent with section 12.01(1).

(3) An Adopting Employer of a Nonstandardized Plan may rely on the plan’s Opinion Letter

with respect to the requirements of § 410(b), if applicable (and, in the case of a Qualified Preapproved Plan, § 401(a)(26) (other than the § 401(a)(26) requirements that apply to a prior benefit

structure)), if all nonexcludable employees benefit under the Adopting Employer’s plan.

(4) Nonstandardized Plans may permit an Adopting Employer to select an allocation formula for

contributions other than elective deferrals that satisfies one of the design-based safe harbors in

§ 1.401(a)(4)-2(b)(2) (or, in the case of a Qualified Pre-approved Plan that is a defined benefit

plan, a benefit formula that satisfies one of the design-based safe harbors under § 1.401(a)(4)-3(b)

(3), (4), or (5)), and to select a safe harbor compensation definition for the formula that satisfies

§ 1.414(s)-1(c). If the Adopting Employer selects an allocation formula for contributions other

than elective deferrals that satisfies one of the design-based safe harbors in § 1.401(a)(4)-2(b)

(2) (or, in the case of a Qualified Pre-approved Plan that is a defined benefit plan, § 1.401(a)

(4)-3(b)(3), (4), or (5)), and, if the allocation or benefit formula is based on compensation,

selects a safe harbor compensation definition that satisfies § 1.414(s)‑1(c), then the Adopting

Employer of a Nonstandardized Plan may rely on the plan’s Opinion Letter with respect to the

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December 18, 2023

nondiscriminatory amounts requirement under § 401(a)(4), if applicable. An Adopting Employer

of a Nonstandardized Plan that includes § 401(m) matching contributions (and/or, in the case of a

Qualified Pre-approved Plan, § 401(k) contributions) may rely on the plan’s Opinion Letter with

respect to whether the form of the plan satisfies the actual contribution percentage (ACP) test

of § 401(m)(2) (or, in the case of a Qualified Pre-approved Plan, the actual deferral percentage

(ADP) test of § 401(k)(3)) if the Adopting Employer elects to use a safe harbor definition of

compensation in the test. An Adopting Employer of a Nonstandardized Plan that satisfies the

safe harbor requirement described in § 401(m)(11) or 401(m)(12) (or, in the case of a Qualified

Pre-approved Plan, that satisfies the safe harbor requirement described in § 401(k)(12) or 401(k)

(13)) may rely on the plan’s Opinion Letter with respect to whether the form of the Adopting

Employer’s plan satisfies the requirements of § 401(m) (or § 401(k), if applicable), unless the plan

provides for the safe harbor contribution under § 401(m)(11) or 401(m)(12) (or § 401(k)(12) or

401(k)(13), if applicable) to be made under another plan.

(5) For SIMPLE plans described in § 401(k)(11) and (m)(10), an Adopting Employer may also

rely on the plan’s Opinion Letter regarding whether the form of the Adopting Employer’s plan

satisfies the requirements of those sections.

(6) For starter 401(k) deferral-only plans described in § 401(k)(16) or a safe harbor deferral-only

plan described in § 403(b)(16), an Adopting Employer may also rely on the plan’s Opinion Letter

regarding whether the form of the Adopting Employer’s plan satisfies the requirements of those

sections.

(7) Except as set forth in section 9.05(2), an Adopting Employer of a Nonstandardized Plan that is

a Qualified Pre-approved Plan that includes a Cash Balance Formula with a structure of Principal

Credits that increase with age, service, or any other measure during a participant’s employment

may not rely on the plan’s Opinion Letter with respect to the requirements of § 411(b)(1).

.03 Other limitations and conditions on reliance. Notwithstanding any provision in this section

12 to the contrary, the following conditions and limitations regarding reliance by an Adopting

Employer on an Opinion Letter apply with respect to all Pre-approved Plans:

(1) An Adopting Employer may rely on an Opinion Letter for a plan that amends a plan of the

Employer only if the form of the plan that is being amended satisfied the Qualification Requirements

or Section 403(b) Requirements, as applicable. Accordingly, prior to being amended, the plan

must either have timely corrected any Disqualifying Provisions or Form Defects for which the

Remedial Amendment Period is closed or have corrected any plan document failures under the

EPCRS. If this requirement is not met, then the employer (a) is considered to have adopted an

individually designed plan, (b) may not rely on the Opinion Letter for the plan, and (c) is not

considered be on the Cycle system.17

(2) An Adopting Employer may not rely on an Opinion Letter if the Adopting Employer’s adoption

of a Pre-approved Plan precedes the issuance of an Opinion Letter for the plan.18

(3) An Adopting Employer may not rely on an Opinion Letter if the adoption agreement or other

elective provisions in the plan are not completed correctly by the Adopting Employer.

(4) An Adopting Employer of any Qualified Pre-approved Plan that is not a Governmental Plan

and that is a pension plan in which the normal retirement age selected by the Adopting Employer

is less than age 62 may not rely on the Opinion Letter that such age is reasonably representative

of the typical retirement age for the employer’s industry, as required by § 1.401(a)-1(b)(2). For

an Adopting Employer of any Qualified Pre-approved Plan that is a Governmental Plan and that

is a pension plan in which the normal retirement age selected by the Adopting Employer does not

satisfy any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations may

The plan may still use EPCRS to correct any failures, and, after correction, then be eligible to adopt a Pre-approved Plan.

In this case, in order to have reliance, the Adopting Employer would need to re-adopt the Pre-approved Plan after the issuance of the Opinion Letter for the plan.

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not rely on the Opinion Letter that such age is reasonably representative of the typical retirement

age for the employer’s industry, as required by § 1.401(a)-1(b)(2).

(5) An Adopting Employer may not rely on an Opinion Letter with respect to any provision of a

Trust or Custodial Account Document or Investment Arrangement, as applicable, that conflicts

with language in the basic plan document, adoption agreement, or single plan document, as

applicable, even if the Trust or Custodial Account Document or Investment Arrangement includes

language that states that the provisions of the Trust or Custodial Account Document or Investment

Arrangement override the basic plan document, adoption agreement, or single plan document.19

(6) For a Qualified Pre-approved Plan, the issuance of an Opinion Letter is not a determination by

the IRS that an Adopting Employer’s plan is a Governmental Plan or a church plan (as described

in § 414(e)). For a Section 403(b) Pre-approved Plan, the issuance of an Opinion Letter is not a

determination by the IRS that an Adopting Employer’s plan is a Governmental Plan, or that an

Adopting Employer is a Church or QCCO.

(7) Pursuant to section 14.11, a Provider’s failure to disclose to the IRS a material fact,

misrepresentation of a material fact, or failure to accurately provide any of the information

called for on any form required by this revenue procedure may result in the inability of Ado

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