# Bulletin No. 2023–51

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Airs%3A949eb7794cf5ceb5

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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

1
2
3
4
5

0.000135068
0.000270155
0.000405260
0.000540383
0.000675525

6
7
8
9
10

0.000810685
0.000945863
0.001081059
0.001216273
0.001351506

11
12
13
14
15

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

16
17
18
19
20

0.002163286
0.002298647
0.002434026
0.002569423
0.002704839

21
22
23
24
25

0.002840273
0.002975725
0.003111195
0.003246684
0.003382191

26
27
28
29
30

0.003517716
0.003653260
0.003788822
0.003924402
0.004060001

31
32
33
34
35

0.004195618
0.004331253
0.004466906
0.004602578
0.004738268

36
37
38
39
40

0.004873977
0.005009704
0.005145449
0.005281212
0.005416994

41
42
43
44
45

0.005552794
0.005688613
0.005824450
0.005960305
0.006096178

46
47
48
49
50

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

51
52
53
54
55

0.006911805
0.007047807
0.007183827
0.007319866
0.007455923

56
57
58
59
60

0.007591999
0.007728093
0.007864205
0.008000336
0.008136485

61
62
63
64
65

0.008272653
0.008408838
0.008545043
0.008681265
0.008817506

66
67
68
69
70

0.008953766
0.009090044
0.009226340
0.009362655
0.009498988

71
72
73
74
75

0.009635339
0.009771709
0.009908098
0.010044504
0.010180929

76
77
78
79
80

0.010317373
0.010453835
0.010590316
0.010726815
0.010863332

81
82
83
84
85

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

86
87
88
89
90

0.011682823
0.011819470
0.011956135
0.012092818
0.012229520

91
92
93
94
95

0.012366240
0.012502979
0.012639736
0.012776512
0.012913306

96
97
98
99
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

1

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
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2014-64
2012-24
2012-24
2012-24
2014-64
2021-32
2012-24
2014-64
2012-24
2014-64
2014-64
2012-24
2012-24
2012-24
2012-24
2012-24
2023-36
2012-24
2012-24
2017-46
2012-24
2012-24
2019-23

1486

Bulletin No. 2023–51

Jurisdiction

Rev. Proc. First Identifying Jurisdiction
2012-24
2012-24
2012-24
2017-46
2012-24
2012-24
2012-24
2012-24
2014-64
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2014-64
2012-64
2018-36
2012-24
2012-24
2012-24
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
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24

1487

December 18, 2023

Jurisdiction

Rev. Proc. First Identifying Jurisdiction
2012-24
2012-24
2016-56
2020-15
2014-64
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
2012-24
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
2019-23
2015-50
2014-64
2021-32
2015-50
2014-64
2014-64
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
2015-50
2015-50
2014-64
2014-64
2016-56
2014-64
2016-18
2014-64
2023-36
2016-56
2015-50
2015-50
2015-50
2015-50
2014-64
2014-64
2014-64
2014-64
2015-50
2014-64
2017-46
2015-50
2017-31
2016-56
2021-32
2016-18
2015-50
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

1490

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

Bulletin No. 2023–51

1491

December 18, 2023

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
(c) A Cycle 3 (or later) Section 403(b) Pre-approved Plan (the Cycle 2 Submission Period for
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.
1

December 18, 2023

1492

Bulletin No. 2023–51

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

2
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.
3
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.
4
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.

Bulletin No. 2023–51

1493

December 18, 2023

.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).
(c) The Interim Amendment rules are updated to provide that, if an Adopting Employer does not
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).

December 18, 2023

1494

Bulletin No. 2023–51

(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).
(c) The Qualification Requirements are clarified to include § 409 for ESOPs. See section 4.02(3).
(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.
5

Bulletin No. 2023–51

1495

December 18, 2023

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

December 18, 2023

1496

Bulletin No. 2023–51

(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

Bulletin No. 2023–51

1497

December 18, 2023

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.
(c) By submitting an application for an Opinion Letter for a Pre-approved Plan under this revenue
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.

December 18, 2023

1498

Bulletin No. 2023–51

(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.

Bulletin No. 2023–51

1499

December 18, 2023

(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).
(c) Readily Tradable Employer Securities. The term “Readily Tradable Employer Securities”
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.
(c) Conversion Amendment. The term “Conversion Amendment” means an amendment defined
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.
6

December 18, 2023

1500

Bulletin No. 2023–51

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

Bulletin No. 2023–51

1501

December 18, 2023

(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.
8
But see, section 25 for when an Adopting Employer may apply for a determination letter outside of the Employer Adoption Window.
7

December 18, 2023

1502

Bulletin No. 2023–51

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;
(c) In the case of a Disqualifying Provision with respect to a provision that fails to satisfy the
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;
(c) In the case of a Form Defect with respect to a provision that fails to satisfy the Section 403(b)
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

Bulletin No. 2023–51

1503

December 18, 2023

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.
11
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).
12
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.
9

10

December 18, 2023

1504

Bulletin No. 2023–51

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

Bulletin No. 2023–51

1505

December 18, 2023

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.

December 18, 2023

1506

Bulletin No. 2023–51

(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.

13

Bulletin No. 2023–51

1507

December 18, 2023

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

December 18, 2023

1508

Bulletin No. 2023–51

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)
(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 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;

Bulletin No. 2023–51

1509

December 18, 2023

(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

December 18, 2023

1510

Bulletin No. 2023–51

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.

14

Bulletin No. 2023–51

1511

December 18, 2023

(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 ext

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Airs%3A949eb7794cf5ceb5. Public record. Not legal advice.