# SECTION 2. BACKGROUND

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- **Document type:** Agency decision

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Rev. Proc. 2021-37

Table of Contents
PART I – OVERVIEW
SECTION 1. PURPOSE
SECTION 2. BACKGROUND
SECTION 3. SIGNIFICANT PROVISIONS
SECTION 4. DEFINITIONS
PART II – PROCEDURES FOR APPLICATIONS FOR § 403(b) PRE-APPROVED
PLANS
SECTION 5. PROVISIONS REQUIRED IN § 403(b) PRE-APPROVED PLANS
SECTION 6. OPINION LETTERS – SCOPE
SECTION 7. ELIGIBILITY FOR THE CYCLE SYSTEM
SECTION 8. EMPLOYER RELIANCE ON OPINION LETTER
SECTION 9. PLAN AMENDMENTS
SECTION 10. OPINION LETTER APPLICATIONS – INSTRUCTIONS TO
PROVIDERS AND OTHER RULES FOR APPLICATIONS AND OPINION LETTERS
SECTION 11. ADDITIONAL REQUIREMENTS FOR MASS SUBMITTERS
SECTION 12. OFF-CYCLE FILINGS
SECTION 13. REVIEW OF OPINION LETTER APPLICATIONS; ISSUANCE OF
OPINION LETTERS; EMPLOYER ADOPTION WINDOW
SECTION 14. WITHDRAWAL OF APPLICATIONS
SECTION 15. NONTRANSFERABILITY OF OPINION LETTER
SECTION 16. NOTIFICATION OF ADOPTING EMPLOYER REGARDING FAILURE
OF THE FORM OF THE PLAN TO SATISFY § 403(b) REQUIREMENTS
SECTION 17. DISCONTINUED PLANS

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SECTION 18. REVOCATION OF OPINION LETTER BY THE IRS
SECTION 19. RECORD KEEPING REQUIREMENTS
SECTION 20. WHERE TO FILE
PART III – REMEDIAL AMENDMENT PERIOD FOR A FORM DEFECT IN A § 403(b)
PRE-APPROVED PLAN
SECTION 21. EXPIRATION OF REMEDIAL AMENDMENT PERIOD
SECTION 22. INTERIM AMENDMENT DEADLINE
SECTION 23. EXPIRATION OF LIMITED EXTENSION OF INITIAL REMEDIAL
AMENDMENT PERIOD FOR CYCLE 1 § 403(b) PRE-APPROVED PLANS;
EXTENSION OF DEADLINE FOR INITIAL AMENDMENT
SECTION 24. OPERATIONAL COMPLIANCE LIST
PART IV – SPECIAL RULE FOR RETIREMENT INCOME ACCOUNT § 403(b) PREAPPROVED PLANS
SECTION 25. INCLUSION OF § 414(e)(3)(B) EMPLOYEES
PART V – MISCELLANEOUS
SECTION 26. EFFECT ON OTHER DOCUMENTS
SECTION 27. EFFECTIVE DATE
SECTION 28. PUBLIC COMMENTS
SECTION 29. PAPERWORK REDUCTION ACT
SECTION 30. DRAFTING INFORMATION
APPENDIX A – Application for Approval of § 403(b) Pre-approved Plan

3

PART I – OVERVIEW
SECTION 1. PURPOSE
.01 This revenue procedure sets forth the procedures of the Internal Revenue
Service (IRS) for issuing Opinion Letters 1 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 the second Remedial Amendment Cycle (Cycle 2). This
revenue procedure also sets forth the rules for determining when Remedial Amendment
Periods expire for § 403(b) Pre-approved Plans.
.02

This revenue procedure modifies the procedures for the § 403(b) Pre-approved

Plan program to be more similar to the procedures applicable under the § 401(a) preapproved plan program in several ways, including:
•

simplifying the § 403(b) Pre-approved Plan program by eliminating the
distinction between prototype and volume submitter plans;

•

providing that the IRS will issue a Cumulative List of Changes in the § 403(b)
Requirements (Cumulative List) identifying the § 403(b) Requirements that the
IRS will take into account in reviewing § 403(b) Pre-approved Plans submitted
for Cycle 2;

•

making § 403(b) Pre-approved Plan program provisions regarding reliance on
an Opinion Letter more similar to the provisions applicable under the § 401(a)
pre-approved plan program, including provisions that permit the submission
during the Employer Adoption Window of an application for a determination

1 In general, capitalized terms are defined in section 4 of this revenue procedure.

4

letter using Form 5307, Application for Determination for Adopters of Modified
Volume Submitter Plans, by (1) an Adopting Employer of a Nonstandardized
Plan that makes amendments to the plan that are not extensive, or (2) an
Adopting Employer of any § 403(b) Pre-approved Plan (whether a Standardized
Plan or a Nonstandardized Plan) that adds language to satisfy the requirements
of § 415 due to the required aggregation of plans; 2 and
•

providing details regarding the system of cyclical Remedial Amendment Periods
that follows the Initial Remedial Amendment Period.

.03 This revenue procedure provides that the On-Cycle Submission Period for
Cycle 2 applications will begin on May 2, 2022, and end on May 1, 2023.
.04

This revenue procedure extends the plan amendment deadline for making

interim amendments with respect to a change in § 403(b) Requirements, for most plans,
until the end of the second calendar year following the calendar year in which the
change in § 403(b) Requirements is effective with respect to the plan.
.05 This revenue procedure sets forth the date on which the limited extension of the
Initial Remedial Amendment Period described in section 4.11 3 expires and extends the
deadline for adopting an initial amendment (if applicable) that is required under certain
circumstances in order for the limited extension of the Initial Remedial Amendment
Period to apply.
2 The Department of the Treasury and the IRS also anticipate, subject to available resources, establishing

a determination letter program for § 403(b) individually designed plans that will be similar to the
determination letter program for § 401(a) individually designed plans. See Rev. Proc. 2016-37,
2016-29 I.R.B. 136 (as modified by Rev. Proc. 2017-41, 2017-29 I.R.B. 92, and Rev. Proc. 2020-40,
2020-38 I.R.B. 575), and Rev. Proc. 2021-4, 2021-1 I.R.B. 157 (as updated annually).
3 Unless otherwise specified, references to revenue procedure section numbers refer to sections of this
revenue procedure.

5

.06

This revenue procedure provides rules for permitting the participation of

employees of certain church-related organizations, as described in § 414(e)(3)(B), in a
§ 403(b) Pre-approved Plan that is intended to be a Retirement Income Account,
including special rules for amending a Cycle 1 § 403(b) Pre-approved Plan that is
intended to be a Retirement Income Account to permit the participation of employees of
certain church-related organizations, as described in § 414(e)(3)(B) retroactive to the
beginning of Cycle 2.
SECTION 2. BACKGROUND
.01 Final regulations under § 403(b) were published on July 26, 2007 (T.D. 9340,
72 FR 41128). Section 1.403(b)-3(b)(3)(i) generally provides that a contract does not
satisfy the requirements of § 1.403(b)-3(a) (regarding exclusion of contributions from
gross income) unless it is maintained pursuant to a plan. For this purpose, a plan is a
written defined contribution plan that, in both form and operation, satisfies the
requirements of the final regulations under § 403(b). 4
.02 Rev. Proc. 2013-22, 2013-18 I.R.B. 985, as modified by Rev. Proc. 2014-28,
2014-16 I.R.B. 944, and Rev. Proc. 2015-22, 2015-11 I.R.B. 754, and clarified by
Rev. Proc. 2017-18, 2017-5 I.R.B. 743, 5 sets forth the procedures of the IRS for issuing
opinion and advisory letters for § 403(b) Pre-approved Plans for Cycle 1, which began
on the later of January 1, 2010, or the effective date of the plan, and that, ended on
June 30, 2020. The IRS began accepting Cycle 1 applications for opinion and advisory
4 The written plan document requirement applies to a § 403(b) plan maintained by a Church or a Qualified
Church-Controlled Organization only if the plan is a Retirement Income Account plan under § 403(b)(9).
Section 1.403(b)-3(b)(3)(iii).
5 For purposes of this revenue procedure, references to Rev. Proc. 2013-22 are to Rev. Proc. 2013-22, as
modified by Rev. Proc. 2014-28 and Rev. Proc. 2015-22, and clarified by Rev. Proc. 2017-18.

6

letters regarding the acceptability under § 403(b) of the form of prototype plans and
volume submitter plans, respectively, on June 28, 2013. Section 16.01 of
Rev. Proc. 2013-22 provides that the IRS expects future guidance to require the
restatement of every § 403(b) Pre-approved Plan by the plan’s Provider every six years.
It further provides that upon issuance of a new opinion or advisory letter for the restated
plan, Adopting Employers generally are required to adopt the restated plan.
Section 4.01(3) of Rev. Proc. 2013-22 noted that the IRS was not establishing a
determination letter program for § 403(b) plans at that time, so that an employer
adopting a § 403(b) Pre-approved Plan would not be able to apply for an individual
determination letter for the plan.
.03 Rev. Proc. 2013-22 provides that an employer that adopts a volume submitter
plan and amends the terms of the approved specimen plan loses reliance on the
advisory letter only to the extent of the amendment (as long as, after the amendment,
the plan remains substantially similar to the terms of the approved specimen plan), but
that the employer has no option to obtain a determination letter on the amended
portions of the plan.
.04 The IRS issued Cycle 1 opinion and advisory letters for § 403(b) Pre-approved
Plans beginning in March 2017. As provided in those letters, the IRS considered
changes set forth in the final regulations under § 403(b) and the applicable
requirements of the 2012 Cumulative List of Changes in Plan Qualification
Requirements set forth in Notice 2012-76, 2012-52 I.R.B. 775.
.05 Rev. Proc. 2013-22 provides that a § 403(b) Pre-approved Plan that is intended
to be a Retirement Income Account may be maintained only by a Church or convention

7

or association of churches, including an organization described in § 414(e)(3)(A), to
provide benefits under § 403(b) for its employees or their beneficiaries as described in
§ 1.403(b)-9. Accordingly, under Rev. Proc. 2013-22, employees of a Qualified ChurchControlled Organization (QCCO) or a non-QCCO may not participate in a § 403(b) Preapproved Plan that is intended to be a Retirement Income Account.
.06 Section 21.02 of Rev. Proc. 2013-22 establishes an Initial Remedial
Amendment Period, which permits an Eligible Employer to retroactively correct defects
in the form of its written § 403(b) plan in order to satisfy the written plan requirement in
the § 403(b) regulations by timely adopting a § 403(b) Pre-approved Plan or by
otherwise timely amending its plan. Pursuant to section 21.02 of Rev. Proc. 2013-22, a
defect in the form of a plan is a provision, or the absence of a required provision, that
causes the plan to fail to satisfy the § 403(b) Requirements. Under this Initial Remedial
Amendment Period, an Eligible Employer must amend its plan to the extent necessary
to correct any Form Defects retroactive to the first day of the plan's Initial Remedial
Amendment Period. Section 21.02 of Rev. Proc. 2013-22 provides that the first day of
the plan’s Initial Remedial Amendment Period is the later of January 1, 2010, or the
effective date of the plan.
.07 Section 21.03 of Rev. Proc. 2013-22 provides, in general, that the form of a
plan will be treated as satisfying the requirements of the § 403(b) regulations as of the
first day of the plan’s Initial Remedial Amendment Period if (1) on or before that day, the
Eligible Employer adopts a written plan that is intended to satisfy the § 403(b)
Requirements, and (2) on or before the last day of the Initial Remedial Amendment
Period, the employer amends the plan to the extent necessary to correct any Form

8

Defects retroactive to the first day of the Initial Remedial Amendment Period.
.08 Section 21.05 of Rev. Proc. 2013-22 provides that the IRS will announce, in
subsequent guidance, the expiration date of the Initial Remedial Amendment Period for
all Eligible Employers.
.09 Rev. Proc. 2014-28 modifies Rev. Proc. 2013-22 to reduce the number of
employers required to adopt a § 403(b) Pre-approved Plan, to permit an application for
an advisory letter for a volume submitter specimen plan to be filed by a Mass Submitter
on behalf of a minor modifier of the Mass Submitter’s plan, and to extend the deadline
for submitting a § 403(b) Pre-approved Plan to the IRS for an opinion or advisory letter.
.10 Rev. Proc. 2015-22 modifies Rev. Proc. 2013-22 to change the address to
which applications for an opinion or advisory letter should be submitted and to insert a
user fee that was previously omitted.
.11 Rev. Proc. 2017-18 provides that the last day of the Initial Remedial
Amendment Period is March 31, 2020. Rev. Proc. 2017-18 further provides that a plan
that does not satisfy the § 403(b) Requirements in form on any day during the Initial
Remedial Amendment Period will be considered to have satisfied those requirements if,
on or before March 31, 2020, all provisions of the plan that are necessary to satisfy
§ 403(b) have been adopted and made effective in form and operation from the
beginning of the Initial Remedial Amendment Period. 6
.12 Rev. Proc. 2019-39, 2019-42 I.R.B. 945, as modified by Notice 2020-35,

6 See section 2.20 of this revenue procedure for the extension of the expiration date of March 31, 2020, to

June 30, 2020, by Notice 2020-35, 2020-25 I.R.B. 948.

9

2020-25 I.R.B. 948, and Rev. Proc. 2020-40, 2020-38 I.R.B. 575, 7 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 IRS. Further, it sets forth a system of
recurring Remedial Amendment Periods for correcting Form Defects in § 403(b) Preapproved Plans first occurring after the Initial Remedial Amendment Period (that is, after
June 30, 2020), and provides a limited extension of the Initial Remedial Amendment
Period for certain Form Defects.
.13 Section 5 of Rev. Proc. 2019-39 establishes a system of recurring Remedial
Amendment Periods for § 403(b) individually designed plan Form Defects first occurring
after the Initial Remedial Amendment Period expires (that is, after June 30, 2020).
(1) Beginning of Remedial Amendment Period – Under this system, unless
otherwise specified in guidance published in the Internal Revenue Bulletin, a Remedial
Amendment Period for a Form Defect in a § 403(b) individually designed plan first
occurring after the Initial Remedial Amendment Period, begins:
(a) in the case of a provision of, or absence of a provision from, a new plan,
the date the plan is put into effect;
(b) in the case of an amendment to an existing plan (other than a Form Defect
that is related to a change in § 403(b) Requirements, or that is integral to such a
change), the date the plan amendment is adopted or put into effect, whichever is earlier;
(c) in the case of a provision that fails to satisfy the § 403(b) Requirements by
reason of a change in those requirements, the date on which the change becomes

7 For purposes of this revenue procedure, references to Rev. Proc. 2019-39 are to Rev. Proc. 2019-39, as

modified by Rev. Proc. 2020-40 and Notice 2020-35.

10

effective with respect to the plan; or
(d) in the case of a provision that is integral to a § 403(b) Requirement that
has been changed, the date the plan is first operated in accordance with the provision,
as amended.
(2) Expiration of Remedial Amendment Period – Unless otherwise specified in
guidance published in the Internal Revenue Bulletin, the expiration date for a Remedial
Amendment Period for a Form Defect first occurring after the Initial Remedial
Amendment Period is described in this section 2.13(2).
(a) New plan – In the case of a new plan, on the later of (i) the last day of the
second calendar year following the calendar year in which the plan is put into effect, or
(ii) in the case of a Governmental Plan, 90 days after the close of the third regular
legislative session of the legislative body with the authority to amend the plan that
begins after the end of the plan’s initial plan year.
(b) Amendment to existing plan – In the case of an amendment to an existing
plan not relating to, or integral to, a change in § 403(b) Requirements, on the later of
(i) the last day of the second calendar year following the calendar year in which the
amendment is adopted or effective, whichever is later, or (ii) in the case of a
Governmental Plan, 90 days after the close of the third regular legislative session of the
legislative body with the authority to amend the plan that begins following the calendar
year in which the amendment is adopted or effective, whichever is later.
(c) Change in § 403(b) Requirements – In the case of a provision that is
related to, or integral to, a change in § 403(b) Requirements, on the later of (i) the last
day of the second calendar year that begins after the issuance of the Required

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Amendments List (described in section 8 of Rev. Proc. 2019-39) in which the change in
§ 403(b) Requirements appears, or (ii) in the case of a Governmental Plan, 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 of issuance of the Required
Amendments List in which the change in § 403(b) Requirements appears.
.14 Sections 10 and 11 of Rev. Proc. 2019-39 establish a system of cyclical
§ 403(b) Pre-approved Plan Remedial Amendment Periods following the expiration of
the Initial Remedial Amendment Period (that is, after June 30, 2020). Section 10.02
and 10.03 of Rev. Proc. 2019-39 provide that the period covered by the Initial Remedial
Amendment Period is referred to as Cycle 1 and that Cycle 2 begins after the Initial
Remedial Amendment Period expires.
.15 Section 11.02 of Rev. Proc. 2019-39 provides that the beginning date of the
Remedial Amendment Period with respect to a Form Defect first occurring in a § 403(b)
Pre-approved Plan after the Initial Remedial Amendment Period is the same date that
would be applicable if that Form Defect had occurred in an individually designed plan
(see section 2.13(1) of this revenue procedure for a description of the date a Remedial
Amendment Period begins).
.16 Section 11.03 of Rev. Proc. 2019-39 provides that, except as otherwise
provided by statute, or in regulations or other guidance published in the Internal
Revenue Bulletin, and provided that an interim amendment (if applicable) is made timely
and in good faith with the intent of complying with the § 403(b) Requirements, the
Remedial Amendment Period with respect to a § 403(b) Pre-approved Plan Form
Defect first occurring after the Initial Remedial Amendment Period will end no earlier

12

than the end of Cycle 2 and that the IRS intends to issue guidance providing additional
rules for determining the end of the Remedial Amendment Period.
.17 Section 11.04 of Rev. Proc. 2019-39 provides that an Eligible Employer
adopting a § 403(b) Pre-approved Plan generally must adopt an interim amendment
with respect to a change in § 403(b) Requirements.
.18 Section 12 of Rev. Proc. 2019-39 sets forth plan amendment deadlines for
interim amendments made to a § 403(b) Pre-approved Plan. In relevant part,
section 12 of Rev. Proc. 2019-39 provides that a Provider (or Eligible Employer) is
considered to have adopted an interim amendment timely if the amendment is adopted
by the later of (1) the end of the calendar year following the calendar year in which the
change in § 403(b) Requirements is effective with respect to the plan, or (2) in the case
of a Governmental Plan, the later of (a) the end of the calendar year following the
calendar year in which the change in § 403(b) Requirements is effective with respect to
the plan, or (b) 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.
.19 Section 13 of Rev. Proc. 2019-39 provides a limited extension of the Initial
Remedial Amendment Period with respect to certain § 403(b) Pre-approved Plan Form
Defects first occurring during Cycle 1, so that the Initial Remedial Amendment Period
will end no earlier than the end of Cycle 2. Section 13 of Rev. Proc. 2019-39 also
provides that, prior to the end of Cycle 2, the IRS will issue guidance providing rules for
determining when the limited extension of the Initial Remedial Amendment Period
expires with respect to a § 403(b) Pre-approved Plan Form Defect first occurring during

13

Cycle 1. See section 4.11 of this revenue procedure for more details regarding the
limited extension of the Initial Remedial Amendment Period.
.20 Notice 2020-35, in relevant part, modifies Rev. Proc. 2017-18 and
Rev. Proc. 2019-39 to change the expiration date of the Initial Remedial Amendment
Period, and all dates that are based on the expiration of the Initial Remedial
Amendment Period, from March 31, 2020 to June 30, 2020.
.21 Rev. Proc. 2020-40 modifies Rev. Proc. 2019-39 to expand the situations in
which the plan amendment deadline for discretionary amendments made to a § 403(b)
Pre-approved Plan may be extended.
.22 Section 111 of Division O of the Further Consolidated Appropriations Act, 2020,
Pub. L. 116-94, 133 Stat. 2534 (2019), known as the Setting Every Community Up for
Retirement Enhancement Act of 2019 (SECURE Act), provides that a Retirement
Income Account may provide benefits for an employee described in § 414(e)(3)(B)
(which includes employees of a tax-exempt organization that is controlled by or
associated with a church or convention or association of churches, such as employees
of a QCCO or a Non-QCCO).
.23 Rev. Proc. 2016-37, 2016-29 I.R.B. 136, as modified by Rev. Proc. 2017-41,
2017-29 I.R.B. 92, and Rev. Proc. 2020-40, sets forth rules for a regular six-year
remedial amendment cycle for § 401(a) pre-approved plans and an extension of the
remedial amendment period and adoption deadline for plan amendments for § 401(a)
pre-approved plans.
.24 Rev. Proc. 2017-41, as modified by Rev. Proc. 2018-21, 2018-14 I.R.B. 467,
Rev. Proc. 2018-42, 2018-36 I.R.B. 424, Rev. Proc. 2020-10, 2020-2 I.R.B. 295, and

14

Notice 2020-35, sets forth the procedures of the IRS for issuing opinion letters regarding
the qualification in form of § 401(a) pre-approved plans.
.25 Rev. Proc. 2021-4, 2021-1 I.R.B. 157 (as updated annually), sets forth the
general procedures of the IRS regarding the issuance of Employee Plans determination
letters, including determination letters for § 401(a) pre-approved plans.
SECTION 3. SIGNIFICANT PROVISIONS
.01 This revenue procedure significantly modifies the procedures set forth in
Rev. Proc. 2013-22 for issuing an Opinion Letter regarding the satisfaction of the form
of a § 403(b) Pre-approved Plan with respect to the § 403(b) Requirements. These
modifications generally make the § 403(b) Pre-approved Plan program more similar to
the § 401(a) pre-approved plan program.
.02 The prototype and volume submitter programs are combined and replaced by a
single Opinion Letter program that provides for two types of plans: Standardized Plans
and Nonstandardized Plans. See section 4.27.
.03 A § 403(b) Pre-approved Plan may utilize either of two formats: a single plan
document or a basic plan document with an adoption agreement. See section 4.27.
.04 An Adopting Employer of a Nonstandardized Plan that makes amendments to
the plan that are not extensive will lose reliance on the Nonstandardized Plan’s Opinion
Letter, but may obtain reliance that the form of the plan, as amended, satisfies the
§ 403(b) Requirements by requesting a determination letter using Form 5307 (as
updated), under procedures similar to the procedures applicable to § 401(a) preapproved plans. See section 8.04. In addition, an Adopting Employer of any § 403(b)
Pre-approved Plan (whether a Standardized Plan or a Nonstandardized Plan) that adds

15

language to satisfy the requirements of § 415 due to the required aggregation of plans
may obtain reliance with regard to § 415 by applying for a determination letter using
Form 5307 (as updated), under procedures similar to the procedures applicable to
§ 401(a) pre-approved plans. See section 8.04.
.05 The On-Cycle Submission Period for Cycle 2 will begin on May 2, 2022, and
end on May 1, 2023. See section 10.02.
.06 Prior to the On-Cycle Submission Period for Cycle 2, the IRS will issue a
Cumulative List that identifies changes in the § 403(b) Requirements that will be taken
into account with respect to a plan document submitted to the IRS for Cycle 2 and that
were not taken into account by the IRS in its review during Cycle 1. See section 13.02.
.07 Applications for a minor modifier adopter of a Mass Submitter’s § 403(b) Preapproved Plan with respect to a Cycle will no longer be accepted after that Cycle’s
Employer Adoption Window begins. See section 12.02.
.08 All § 403(b) Pre-approved Plans are required to provide a definition of
Employee. See section 5.13.
.09 Any Nonstandardized Plan may provide for either safe harbor or non-safe
harbor hardship distributions. See section 6.03.
.10 An employee described in § 414(e)(3)(B) is permitted to participate in a
§ 403(b) Pre-approved Plan that is intended to be a Retirement Income Account. See
section 4.26. Additionally, a Cycle 1 § 403(b) Pre-approved Plan that is intended to be
a Retirement Income Account may be amended to permit the participation of employees
of certain church-related organizations, as described in § 414(e)(3)(B), retroactive to the
beginning of Cycle 2. See section 25.

16

.11 The expiration date of the Remedial Amendment Period for Form Defects first
occurring after June 30, 2020, in a § 403(b) Pre-approved Plan is provided. See
section 21.
.12 The amendment deadline for an interim amendment to a § 403(b) Preapproved Plan that is not a Governmental Plan is the end of the second calendar year
following the calendar year in which the change in § 403(b) Requirements is effective.
Similarly, a later deadline is provided for a § 403(b) Pre-approved Plan that is a
Governmental Plan. See section 22.
.13 The expiration date of the limited extension of the Initial Remedial Amendment
Period for certain Form Defects is provided. See section 23.01. In addition, the
deadline for the initial amendment related to that extension for certain Form Defects is
delayed until the later of June 30, 2020, or the end of the second calendar year
following the calendar year in which the change in § 403(b) Requirements is effective
with respect to a plan. See section 23.02.
.14

The Department of the Treasury (Treasury Department) and the IRS expect to

continue to update this Opinion Letter program revenue procedure, in whole or in part,
from time to time, including providing further improvements based on comments
received. Accordingly, the Treasury Department and the IRS continue to invite further
comments on how to improve the Opinion Letter program. For information on how to
submit comments, see section 28.
SECTION 4. DEFINITIONS
.01 Adopting Employer – An “Adopting Employer” is an Eligible Employer that
adopts a § 403(b) Pre-approved Plan offered by a Provider, including a plan that is

17

word-for-word identical to, or a Minor Modification of, a plan of a Mass Submitter.
.02 Adoption Agreement Plan – See section 4.27(2).
.03 Church – A “Church” is a church within the meaning of § 3121(w)(3)(A).
.04 Cycle – A “Cycle” is a Remedial Amendment Cycle, as defined in section 4.24.
.05 Eligible Employer – An “Eligible Employer” is an employer described in
§ 403(b)(1)(A).
.06 Employer Adoption Window – See section 4.24.
.07 Existing § 403(b) Pre-approved Plan – See section 4.27(3)(c).
.08 Flexible Plan – See section 4.14.
.09 Form Defect – A “Form Defect” is:
(1) a provision that causes a plan to fail to satisfy the § 403(b) Requirements;
(2) the absence of a provision that causes a plan to fail to satisfy the § 403(b)
Requirements;
(3) a provision of a plan that is integral to a § 403(b) Requirement that has been
changed (either by statute, or in regulations or other guidance published in the Internal
Revenue Bulletin); or
(4) the absence from a plan of a provision required by a change to the § 403(b)
Requirements (either by statute, or in regulations or other guidance published in the
Internal Revenue Bulletin) or integral to the change.
.10 Governmental Plan – A “Governmental Plan” is a governmental plan within the
meaning of § 414(d).
.11 Initial Remedial Amendment Period
(1) A plan’s “Initial Remedial Amendment Period” is the Remedial Amendment

18

Period provided under Rev. Proc. 2013-22 that began on the later of January 1, 2010,
or the effective date of the plan, and that, pursuant to Rev. Proc. 2017-18, as modified
by Notice 2020-35, expired on June 30, 2020.
(2) Section 13 of Rev. Proc. 2019-39 provides a “limited extension of the Initial
Remedial Amendment Period,” so that the Initial Remedial Amendment Period will end
no earlier than the end of Cycle 2. See section 23.01 of this revenue procedure for
more details on the expiration of the limited extension of the Initial Remedial
Amendment Period. The limited extension of the Initial Remedial Amendment Period
applies to a Form Defect that: (a) either (i) results in the failure of the plan to satisfy the
§ 403(b) Requirements by reason of a change in those requirements, or (ii) is integral to
the § 403(b) Requirement that has been changed, and (b) first occurs on or after
January 1, 2018.
(3) Section 13.03 of Rev. Proc. 2019-39 provides that an “initial amendment” that
is intended in good faith to correct a Form Defect must be timely adopted by the
Provider (or the Adopting Employer, if applicable) for the limited extension of the Initial
Remedial Amendment Period to apply. To be considered timely, section 13.03 of
Rev. Proc. 2019-39 provides that the initial amendment must be adopted by the later of
(a) the expiration of the Initial Remedial Amendment Period (that is, June 30, 2020), or
(b) the end of the calendar year following the calendar year in which the change in
§ 403(b) Requirements is effective with respect to the plan. However, section 23.02 of
this revenue procedure extends the deadline for the initial amendment.
.12 Interim § 403(b) Pre-approved Plan – See section 4.27(3)(a).
.13 Investment Arrangement – An “Investment Arrangement” is a funding

19

arrangement under a § 403(b) 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.
.14 Mass Submitter – A “Mass Submitter” is any person that: (1) has an
established place of business in the United States where it is accessible during every
business day, and (2) submits Opinion Letter applications on behalf of at least 15
unaffiliated Providers, each of which is offering, on a word-for-word identical basis, the
same plan. A Flexible Plan, as defined in section 11.03(1), that is offered by a Provider
is considered a word-for-word identical plan. For purposes of determining whether 15
unaffiliated Providers offer, on a word-for-word basis, the same § 403(b) 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). Any law firm,
accounting firm, consulting firm, or similar organization, will be 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 11 for rules relating to Mass Submitter plans.
.15

Minor Modification – See section 11.03(2).

.16

Newly Approved § 403(b) Pre-approved Plan – See section 4.27(3)(b).

.17

Non-qualified Church-Controlled Organization or Non-QCCO – A “Non-qualified

Church-Controlled Organization” or “Non-QCCO” is a church-controlled tax-exempt
organization described in § 501(c)(3) that is not a QCCO.
.18

Nonstandardized Plan – A “Nonstandardized Plan” is a § 403(b) Pre-approved

20

Plan that is not a Standardized Plan.
.19 On-Cycle Submission Period – See section 4.24.
.20 Opinion Letter – An “Opinion Letter” is a written statement issued by the IRS to
a Provider or Mass Submitter that the form of a § 403(b) Pre-approved Plan satisfies the
§ 403(b) Requirements. For purposes of this revenue procedure, an opinion letter for a
prototype plan or an advisory letter for a volume submitter plan issued pursuant to
Rev. Proc. 2013-22 is considered a Cycle 1 Opinion Letter. An Opinion Letter issued
under this revenue procedure is referred to as a Cycle 2 Opinion Letter.
.21 Provider
(1) A “Provider” is any person (including, if applicable, a Mass Submitter) that: (a)
has an established place of business in the United States where it is accessible during
every business day, and (b) represents to the IRS in its application for an Opinion Letter
that it reasonably expects at least 15 Eligible Employers to adopt one of the § 403(b)
Pre-approved Plans of the Provider. Notwithstanding the preceding sentence, a person
that is otherwise eligible to be a Provider generally may apply for an Opinion Letter for a
plan that is intended to be a Retirement Income Account without satisfying the
15-Eligible-Employer requirement with respect to that plan. However, if that person also
applies for an Opinion Letter with respect to a § 403(b) Pre-approved Plan that is not a
Retirement Income Account, the person would need to meet the 15-Eligible-Employer
requirement for the plan that is not a Retirement Income Account. A Provider may
apply for Opinion Letters for any number of § 403(b) Pre-approved Plans.
(2) The IRS reserves the right at any time to request from a Provider a list of the
Eligible Employers that have adopted or are expected to adopt the Provider’s plans,

21

including the employers’ business addresses and employer identification numbers.
(3) Notwithstanding the preceding provisions of this section 4.21, any person that
has an established place of business in the United States where it is accessible during
every business day may be a Provider that offers a plan that is word-for-word identical
to a plan of a Mass Submitter (as an identical adopter) or a plan that includes Minor
Modifications to a plan of a Mass Submitter (as a minor modifier adopter) regardless of
the number of Eligible Employers that are expected to adopt the plan. See section 11
for rules relating to Mass Submitter plans, including procedures for identical adopters
and minor modifier adopters of Mass Submitter plans.
(4) By submitting an application for an Opinion Letter for a § 403(b) Pre-approved
Plan under this revenue procedure (or by having an application filed on its behalf by a
Mass Submitter), 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
§ 403(b) Pre-approved Plans and the revocation of Opinion Letters that have been
issued to the Provider.
.22 Qualified Church-Controlled Organization or QCCO – A “Qualified ChurchControlled Organization” or “QCCO” is 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).
.23 Related Employers – For a plan that is not a Governmental Plan, “Related
Employers” means all employers that are aggregated with the Adopting Employer under
§ 414(b) and (c) (each as modified by § 415(h)), (m), and (o) and the regulations

22

thereunder. For a Governmental Plan, “Related Employers” means all employers that
are aggregated with the Adopting Employer in a manner consistent with Notice 89-23,
1989-1 C.B. 654.
.24 Remedial Amendment Cycle – A “Remedial Amendment Cycle” or “Cycle”
means one of a series of recurring Remedial Amendment Periods applicable to § 403(b)
Pre-approved Plans, during which a Provider submits a proposed § 403(b) Preapproved Plan for review and approval by the IRS, and during which the plan, once
approved, is adopted by Eligible Employers. Providers and Mass Submitters must
submit applications for an Opinion Letter during the one-year submission period
(referred to as the On-Cycle Submission Period) that relates to an applicable Cycle.
When the review of § 403(b) Pre-approved Plan documents for a specific Cycle is close
to being completed, the IRS will announce the date by which Adopting Employers must
adopt Newly Approved § 403(b) Pre-approved Plans. Depending upon the length of the
IRS review process, Eligible Employers will have approximately a two-year period to
adopt the updated plan (Employer Adoption Window). 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. The On-Cycle Submission Period for a Cycle may begin after the start of
that Cycle.
.25 Remedial Amendment Period – The “Remedial Amendment Period” is the
period during which a § 403(b) plan may be amended to comply retroactively with the
§ 403(b) Requirements. As provided in section 11.01 of Rev. Proc. 2019-39, as part of
the correction of a Form Defect within the Remedial Amendment Period for the Form
Defect, an Adopting Employer must conform the operation of the § 403(b) Pre-approved

23

Plan to match the correction of the Form Defect retroactive to the beginning of the
Remedial Amendment Period for the Form Defect. See section 2.13(1) of this revenue
procedure for a description of when the Remedial Amendment Period for a Form Defect
in a § 403(b) Pre-approved Plan begins. See section 21 of this revenue procedure for a
description of when the Remedial Amendment Period for a Form Defect in a § 403(b)
Pre-approved Plan expires.
.26 Retirement Income Account – A “Retirement Income Account” is 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).
.27 § 403(b) Pre-approved Plan
(1) A “§ 403(b) Pre-approved Plan” is a § 403(b) plan (including a plan covering
self-employed individuals) that is made available by a Provider for adoption by Eligible
Employers. The two types of § 403(b) Pre-approved Plans are Standardized Plans
and Nonstandardized Plans. A § 403(b) Pre-approved Plan includes an Interim
§ 403(b) Pre-approved Plan, a Newly Approved § 403(b) Pre-approved Plan, and an
Existing § 403(b) Pre-approved Plan, as described in this section 4.27.
(2) A § 403(b) Pre-approved Plan may be structured as an “Adoption Agreement
Plan” or as a “Single Document Plan.” An Adoption Agreement Plan consists of a basic
plan document and an adoption agreement. The basic plan document includes all of the
nonelective provisions applicable to all Adopting Employers, and the adoption
agreement includes the options that may be selected by each Adopting Employer. No

24

options (including blanks to be completed) may be provided in the basic plan document
portion of the Adoption Agreement Plan (except as provided in section 11.03(1)
regarding Flexible Plans). A Single Document Plan consists of a single plan document
offered by a Provider without an adoption agreement. A Single Document Plan may
include alternate paragraphs and options (including blanks to be completed by the
Adopting Employer in accordance with specified parameters) that may be selected by
an Adopting Employer.
(3) Categories of § 403(b) Pre-approved Plans. The following categories of
§ 403(b) Pre-approved Plans apply with respect to a Cycle.
(a) Interim § 403(b) Pre-approved Plan – An “Interim § 403(b) Pre-approved
Plan,” which is a plan (other than a Newly Approved § 403(b) Pre-approved Plan) that
was not in existence in the immediately preceding Cycle and that has been or will be
submitted for an Opinion Letter for the Cycle.
(b) Newly Approved § 403(b) Pre-approved Plan – A “Newly Approved
§ 403(b) Pre-approved Plan,” which is a plan for which an Opinion Letter has been
issued for the Cycle.
(c) Existing § 403(b) Pre-approved Plan – An “Existing § 403(b) Pre-approved
Plan,” which is a plan (other than a Newly Approved § 403(b) Pre-approved Plan) that
has received an Opinion Letter for the immediately preceding Cycle.
.28 § 403(b) Requirements – The “§ 403(b) Requirements” are the requirements of
§ 403(b), including requirements provided in the Code, regulations, and other guidance
published in the Internal Revenue Bulletin.
.29 Single Document Plan – See section 4.27(2).

25

.30 Standardized Plan – A "Standardized Plan" is a § 403(b) Pre-approved Plan
that meets the requirements set forth in section 5.18.
PART II – PROCEDURES FOR APPLICATIONS FOR § 403(b) PRE-APPROVED
PLANS
SECTION 5. PROVISIONS REQUIRED IN § 403(b) PRE-APPROVED PLANS
.01 Provisions required in all § 403(b) Pre-approved Plans – Each § 403(b) Preapproved Plan must comply with the requirements set forth in sections 5.03 through
5.17.
.02 Additional provisions – Section 5.18 sets forth additional provisions required for
all Standardized Plans. If a § 403(b) Pre-approved Plan is intended to be a Retirement
Income Account, the plan also must include the provisions set forth in section 5.19.
.03 Inclusion of Investment Arrangements in the § 403(b) Pre-approved Plan – A
§ 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 § 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 § 403(b). For example, if the forms of annuity benefit available under
a plan are described in Investment Arrangements under the plan, the terms of the
Investment Arrangements must satisfy, if applicable to the plan, the joint and survivor

26

annuity requirements of ERISA § 205 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 § 403(b).
.04 Provision regarding conflicting provisions in Investment Arrangement or other
documents – Each § 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, shall govern. See section 8.03(4) for the effect on reliance in the event of a
conflict. An Eligible Employer that adopts a § 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 § 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 5 should not create a conflict with the terms of the Investment
Arrangements under a properly drafted § 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. The IRS anticipates
providing updated sample plan language (Listing of Required Modifications or LRMs)
before the On-Cycle Submission Period with respect to a Cycle begins.

27

.05 Plan must satisfy § 403(b) Requirements independent of Investment
Arrangements – The IRS’s review of a § 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 sections 5.03
through 5.17 (and sections 5.18 and 5.19, if applicable) must be included in the single
plan document or the basic plan document or adoption agreement, as appropriate, of
every § 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 § 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.
Nor does it prevent a § 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 sections 5.03 through 5.17 (and
sections 5.18 and 5.19, 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 § 403(b)
Requirements, including § 1.403(b)-6, and § 1.72(p)-1, and (2) the basic plan document

28

and adoption agreement, as completed by the Adopting Employer, must provide that, to
the extent permitted by the terms governing the applicable Investment Arrangement,
participant loans are available. Similarly, for example, if an Adopting Employer’s Single
Document Plan offers both Investment Arrangements that permit loans and Investment
Arrangements that do not permit loans, then the single plan document must include
provisions reflecting the § 403(b) Requirements, including § 1.403(b)-6, and § 1.72(p)-1,
and must provide that, to the extent permitted by the terms governing the applicable
Investment Arrangement, participant loans are available. The IRS anticipates providing
updated LRMs before the On-Cycle Submission Period with respect to a Cycle begins.
.06 Vesting – A § 403(b) Pre-approved Plan may provide a vesting schedule for
contributions other than elective deferrals, rather than provide for full and immediate
vesting of the contributions. Except in the case of certain Nonstandardized Plans
described in this section 5.06, contributions other than elective deferrals (and earnings
thereon) under a § 403(b) Pre-approved Plan must vest at least as rapidly as would be
required to satisfy the minimum vesting requirements of § 411(a)(2)(B) applicable to a
qualified plan under § 401(a), even if the plan is not subject to the parallel minimum
vesting requirements under ERISA § 203. A Nonstandardized Plan that is designed to
be used for a plan that is not subject to the minimum vesting requirements of ERISA
§ 203 (for example, a Governmental Plan) is not required to provide that contributions
other than elective deferrals will vest at least as rapidly as would be required to satisfy
§ 411(a)(2)(B). Every § 403(b) Pre-approved Plan that provides a vesting schedule for
contributions other than elective deferrals must also satisfy the following requirements:
(1) the portion of a participant’s interest in the plan that is not vested must be

29

maintained in a separate account for the participant that is treated as a separate
contract to which § 403(c) (or, in case of a Custodial Account, § 401(a)) applies, (2) as
amounts in the participant’s separate account become nonforfeitable, they must be
removed from the separate account and treated as amounts held under a § 403(b) plan,
to the extent permitted under § 1.403(b)-3(d)(2)(ii), and (3) all nonvested amounts
remaining in the participant’s separate account must become nonforfeitable upon
termination of the plan.
.07 Appendix of administrative responsibilities – Every § 403(b) Pre-approved Plan
must provide that an appendix to the plan will identify the parties responsible for the
various administrative functions under the plan that are necessary to comply with the
§ 403(b) Requirements and other tax requirements, including the requirements that
apply on the basis of the aggregated Investment Arrangements issued to a participant
under the plan, and will list all the vendors of Investment Arrangements approved for
use under the plan. Changes to the information in the required appendix will not affect
the Adopting Employer’s ability to rely on an Opinion Letter.
.08 Provider amendments – Each § 403(b) Pre-approved Plan must include a
procedure for amendments by the Provider, so that changes in the Code, regulations, or
other guidance published in the Internal Revenue Bulletin, 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 reliance on the Opinion Letter, 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 9.05.

30

.09 Adopting Employer modification to satisfy § 415 – Each § 403(b) Pre-approved
Plan must provide that plan provisions may be amended by the Adopting Employer to
the extent necessary to satisfy § 415 because of the required aggregation of multiple
plans under that section. Generally, a space should be provided in the plan with
instructions for the Adopting Employer to add language as necessary to satisfy § 415.
These provisions must be included in the adoption agreement of an Adoption
Agreement Plan.
.10 Provisions regarding reliance – Each § 403(b) Pre-approved Plan must include,
in close proximity to the signature line, a statement that describes the limitations on
employer reliance on an Opinion Letter. See section 8.
.11 Requirements regarding dated signatures and adoption agreement provisions –
Each § 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

31

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 § 403(b) Requirements.
.12 Provider telephone numbers – Each § 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.
.13 Definition of employee – Each § 403(b) Pre-approved Plan that is not a
Governmental Plan must define an employee as any employee of the Adopting
Employer maintaining the plan or any other Eligible Employer aggregated with that
Adopting Employer under § 414(b), (c), (m), or (o) and the regulations thereunder.
Each § 403(b) Pre-approved Plan that is a Governmental Plan must define an employee
as any employee of the Adopting Employer maintaining the plan or any other Eligible
Employer aggregated with that Adopting Employer in a manner consistent with
Notice 89-23.
.14 Crediting of service taking into account § 414(b), (c), (m), and (o) – Each
§ 403(b) Pre-approved Plan that is not a Governmental Plan must credit all service with
any employer aggregated with the Adopting Employer under § 414(b), (c), (m), or (o)
and the regulations thereunder, as service with the Adopting Employer maintaining the
plan. Each § 403(b) Pre-approved Plan that is a Governmental Plan must credit all
service with any employer aggregated with the Adopting Employer in a manner

32

consistent with Notice 89-23, as service with the Adopting Employer maintaining the
plan.
.15 Uniformed Services Employment and Reemployment Rights Act and § 414(u) –
Each § 403(b) Pre-approved Plan must include a provision reflecting the requirements
of § 414(u). See Rev. Proc. 96-49, 1996-2 C.B. 369.
.16 Separate § 403(b) Pre-approved Plan for Retirement Income Account – A
single § 403(b) Pre-approved Plan may not be used for both a § 403(b) Pre-approved
Plan that is a Retirement Income Account and a § 403(b) Pre-approved Plan that is not
a Retirement Income Account. Thus, a separate § 403(b) Pre-approved Plan is
required for a plan that is intended to constitute a Retirement Income Account.
.17 Identifying category of Eligible Employer and plan – The adoption agreement or
single plan document of every § 403(b) Pre-approved Plan must satisfy the following
requirements:
(1) Although a single adoption agreement may be made available to different
categories of Eligible Employers, the adoption agreement must require the Adopting
Employer to show its status as an Eligible Employer by indicating whether the Adopting
Employer is:
(a) a government-sponsored educational organization described in
§ 170(b)(1)(A)(ii) (a public school);
(b) a tax-exempt organization described in § 501(c)(3) that is exempt from tax
under § 501(a);
(c) an employer of a minister described in § 414(e)(5)(A); or
(d) a minister described in § 414(e)(5)(A).

33

(2) The adoption agreement or single plan document must require the Adopting
Employer to show its status with respect to the nondiscrimination requirements in
§ 1.403(b)-5 by indicating whether the plan is:
(a) a Governmental Plan;
(b) a plan of an Adopting Employer that is a Church or QCCO for employees
of the Church or QCCO; or
(c) any plan not described in (a) or (b).
.18 Provisions applicable to Standardized Plans – In addition to the requirements
set forth in sections 5.03 through 5.17, each Standardized Plan must either provide that
the only contributions that an Adopting Employer may elect to provide under the plan
are elective deferrals or meet the following requirements:
(1) Under § 1.415(f)-1(a)(3), all § 403(b) annuity contracts purchased by an
employer for a participant are treated as one § 403(b) annuity contract for purposes of
§ 415. Section 1.415(f)-1(f)(2) includes a special rule providing that, if a participant on
whose behalf a § 403(b) annuity contract is purchased is in control of any employer for
a limitation year, the § 403(b) annuity contract is aggregated with all other defined
contribution plans maintained by that employer. For these purposes, a custodial
account and a Retirement Income Account are treated as a § 403(b) annuity contract.
Every Standardized Plan must include plan language reflecting these rules. In
particular, the plan language must coordinate the application of the § 415 limits to all the
Standardized Plans of the Adopting Employer and its Related Employers so that, if the
only § 403(b) plans maintained by the Adopting Employer and its Related Employers
are Standardized Plans, the plans will satisfy § 415(c) and § 1.415(f)-1(a)(3) without

34

requiring the addition of overriding plan language.
(2) Under the provisions governing eligibility and participation, the plan by its
terms benefits all employees except those who may be excluded under § 1.410(b)-6.
The plan may provide options as to whether some or all of the employees described in
§ 1.410(b)-6 are excluded, provided that the criteria for excluding employees described
in § 1.410(b)-6 apply uniformly to all employees. A Standardized Plan generally may
not deny an allocation to an employee eligible to participate merely because the
employee is not an active employee on the last day of the plan year or has failed to
complete a specified number of hours of service during the year. However, the plan
may deny an allocation to an employee who is eligible to participate if the employee
terminates service during the plan year with not more than 500 hours of service and is
not an active employee on the last day of the plan year. A plan will not fail to satisfy the
requirements of this section 5.18(2) with respect to contributions other than elective
deferrals merely because the plan provides, either as the result of an elective provision
or by default in the absence of an election to the contrary, that individuals who become
employees, within the meaning of section 5.13, as a 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.
(3) The eligibility requirements under the plan are not more favorable for highly

35

compensated employees (as defined in § 414(q)) than for other employees.
(4) Under the plan, allocations are determined on the basis of total
compensation. The plan must provide that, for purposes of allocations, the definition of
total compensation is all compensation within the meaning of § 415(c)(3), excluding all
other compensation, or compensation that otherwise satisfies § 414(s) and
§ 1.414(s)-1(c).
(5) If the plan provides for contributions other than elective deferrals and
matching contributions, the plan must satisfy one of the design-based safe harbors
described in § 1.401(a)(4)-2(b)(2) with respect to the contributions.
(6) 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.)
(7) Any hardship distribution satisfies the safe harbor standards in the regulations
under § 401(k).
.19 Provisions applicable to a § 403(b) Pre-approved Plan intended to be a
Retirement Income Account
(1) Every § 403(b) Pre-approved Plan that is intended to be a Retirement Income
Account must state the intent to be a Retirement Income Account in accordance with
§ 1.403(b)-9(a)(2)(ii).
(2) The terms of the plan must satisfy the separate accounting, investment
performance, and exclusive benefit requirements of § 1.403(b)-9(a)(2)(i).
(3) If the plan provides for benefits in the form of a life annuity, the plan must

36

satisfy the present value and benefit guarantee requirements of § 1.403(b)-9(a)(5), and
the present value must be based on reasonable actuarial assumptions that are either
set forth in the plan or incorporated by reference into the plan.
(4) The terms of the plan must set forth the nondiscrimination requirements of
§ 403(b)(12). The plan also must state that the nondiscrimination requirements will be
applied to any employee other than an employee of a QCCO or Church.
(5) In the case of multiple employers that are not part of the same controlled
group (as determined under § 414(b), (c), (m), or (o)) participating in the plan, each
Adopting Employer must identify whether it is a Church, QCCO, non-QCCO, or minister.
SECTION 6. OPINION LETTERS – SCOPE
.01 General limits on Opinion Letters – An Opinion Letter will be issued only to a
Provider or Mass Submitter. An Opinion Letter constitutes a determination that the form
of a § 403(b) Pre-approved Plan satisfies the § 403(b) Requirements, subject to the
requirements and limitations of this revenue procedure. The IRS’s review of a
Provider’s or Mass Submitter’s application for an Opinion Letter for a § 403(b) Preapproved Plan will consider only the terms of the single plan document or the basic plan
document and adoption agreement, as applicable. The IRS’s review will not consider,
and an Opinion Letter will not express an opinion with respect to, the terms of any
Investment Arrangements under the plan of any Adopting Employer or any other
documents that may be incorporated by reference into an Adopting Employer’s plan.
.02

Nonapplicability of this revenue procedure to §§ 401, 403(a), or 4975(e)(7)

plans and to IRAs (including traditional IRAs, Roth IRAs, SEPs, and SIMPLE IRAs) – An
Opinion Letter will not be issued under this revenue procedure for § 401, 403(a), or

37

4975(e)(7) plans (see Rev. Proc. 2017-41 for administrative procedures for seeking an
opinion letter for § 401, 403(a), or 4975(e)(7) plans). In addition, an Opinion Letter will
not be issued under this revenue procedure for prototype plans intended to meet the
requirements for individual retirement arrangements under § 408. (See the Form 5305
series, which provides model IRA documents that have been pre-approved by the IRS
and for which an opinion letter is not needed. See also Rev. Proc. 87-50,
1987-2 C.B. 647, as modified by Rev. Proc. 97-29, 1997-1 C.B. 698; Rev. Proc. 98-59,
1998-2 C.B. 727; and Rev. Proc. 2010-48, 2010-50 I.R.B. 828, for administrative
procedures for seeking an opinion letter for individual retirement arrangements under
§ 408.)
.03 Plans for which an Opinion Letter will not be issued – An Opinion Letter will not
be issued for:
(1) a plan under which the § 415 limitations are incorporated by reference;
(2) a plan under which the actual contribution percentage (ACP) test under
§ 401(m)(2) is incorporated by reference;
(3) a Nonstandardized Plan that provides for hardship distributions under
circumstances not described in the safe harbor standards in the regulations under
§ 401(k), unless the availability of these distributions is subject to nondiscriminatory and
objective criteria included in the plan;
(4) a plan that include blanks or fill-in provisions for the Adopting Employer to
complete, unless the provisions have parameters that preclude the Adopting Employer
from completing the provisions in a manner that could violate the § 403(b)
Requirements;

38

(5) a TEFRA church defined benefit plan (see § 1.403(b)-10(f)(2)); or
(6) a plan grandfathered under Rev. Rul. 82-102, 1982-1 C.B. 62.
.04 An Opinion Letter does not consider Title I issues – An Opinion Letter does not
express an opinion, and may not be relied upon, with respect to whether any plan is
subject to the requirements of Title I of ERISA or whether a plan satisfies any of those
requirements.
.05 An Opinion Letter does not consider issues related to a plan’s coverage of
multiple employers that are not in a single controlled group – For a § 403(b) Preapproved Plan that is not a Governmental Plan, an Opinion Letter does not express an
opinion, and may not be relied upon, with respect to whether the plan meets any
requirements that apply due to a plan’s coverage of multiple employers that are not in a
single controlled group for purposes of § 414(b), (c), (m), or (o) and the regulations
thereunder. For a § 403(b) Pre-approved Plan that is a Governmental Plan, an Opinion
Letter does not express an opinion, and may not be relied upon, with respect to whether
the plan meets any requirements that apply due to a plan’s coverage of multiple
employers that are not aggregated in a single controlled group in a manner consistent
with Notice 89-23.
.06 IRS discretion – The IRS may, in its discretion, decline to issue an Opinion
Letter for other types of plans or issues not described in this section.
SECTION 7. ELIGIBILITY FOR THE CYCLE SYSTEM
An Eligible Employer may adopt a § 403(b) Pre-approved Plan (including an Interim
§ 403(b) Pre-approved Plan or an Existing § 403(b) Pre-approved Plan) at any time
during a Cycle. Unless otherwise provided by this revenue procedure, upon an Eligible

39

Employer’s adoption of a § 403(b) Pre-approved Plan, the plan becomes eligible for the
Cycle system. The preceding sentence applies to an Eligible Employer that adopts a
§ 403(b) Pre-approved Plan that amends or restates a plan maintained by the Eligible
Employer, as long as the form of the plan that is being amended or restated satisfies the
§ 403(b) Requirements at the time of the adoption of the § 403(b) Pre-approved Plan.
In order for a plan to remain a § 403(b) Pre-approved Plan, an Adopting Employer of the
plan must adopt, by the end of the Employer Adoption Window for each Cycle, either
the newly approved version of the same plan or a newly approved version of a different
§ 403(b) Pre-approved Plan. An Adopting Employer that fails to adopt a newly
approved version of a § 403(b) Pre-approved Plan by the end of any Employer Adoption
Window will no longer be treated as maintaining a § 403(b) Pre-approved Plan. See
section 9 for the effect of certain plan amendments on a plan’s eligibility for the Cycle
system.
SECTION 8. EMPLOYER RELIANCE ON OPINION LETTER
.01 Standardized Plans
(1) An Adopting Employer of a Standardized Plan may rely on the Standardized
Plan's Opinion Letter that the form of the Adopting Employer’s plan satisfies the
§ 403(b) Requirements, including, if applicable, the requirements of §§ 401(a)(4) and
410(b), if:
(a) the Standardized Plan has a currently valid Opinion Letter;
(b) the Adopting Employer has not amended the Standardized Plan other
than to choose options provided under the Standardized Plan or to make amendments
that are described in section 9.03 relating to employer amendments that will not affect

40

reliance (see also section 9.05 for when a § 403(b) Pre-approved Plan is treated as
individually designed); and
(c) either (i) the only contributions under the plan are elective deferrals, or (ii)
the plan provides for contributions other than elective deferrals and all of the employers
in the Adopting Employer’s controlled group are Eligible Employers. For this purpose,
for a § 403(b) Pre-approved Plan that is not a Governmental Plan, the Adopting
Employer’s controlled group is determined under § 414(b), (c), (m), or (o) and the
regulations thereunder; for a § 403(b) Pre-approved Plan that is a Governmental Plan,
the Adopting Employer’s controlled group is determined in a manner consistent with
Notice 89-23. If the plan provides for contributions other than elective deferrals and the
Adopting Employer’s controlled group includes any employer that is not an Eligible
Employer, the Adopting Employer may rely on the Opinion Letter, except with respect to
whether contributions other than elective deferrals under the plan satisfy the
requirements of §§ 401(a)(4) and 410(b).
(2) Notwithstanding the other provisions of this section 8, an Opinion Letter
issued for a Standardized Plan may not be relied upon with respect to the requirements
of § 415 if the Adopting Employer or any of its Related Employers maintains another
§ 403(b) plan covering any of the same participants as the Standardized Plan, unless
the other plan is also a Standardized Plan. (Also see §§ 1.415(c)-1(d) and 1.415(f)-1(f)
for special rules applicable to § 403(b) plans.) However, an Adopting Employer of a
Standardized Plan that adds language to satisfy the requirements of § 415 due to the
required aggregation of plans may obtain reliance with regard to § 415 by applying for a
determination letter using Form 5307 (as updated). See section 8.04.

41

(3) Additionally, the Adopting Employer of a Standardized Plan may not rely on
the Opinion Letter for the Standardized Plan with respect to: (a) whether the timing of
any amendment to the Adopting Employer’s plan (or series of amendments) satisfies
the nondiscrimination requirements of § 1.401(a)(4)-5(a), except with respect to plan
amendments granting past service that meet the safe harbor described in
§ 1.401(a)(4)-5(a)(3) and are not part of a pattern of amendments that significantly
discriminates in favor of highly compensated employees, or (b) whether the Adopting
Employer’s plan satisfies the effective availability requirement of § 1.401(a)(4)-4(c) with
respect to any benefit, right, or feature. An Eligible Employer that adopts a
Standardized Plan as an amendment to a plan other than a Standardized Plan may not
rely on the Opinion Letter for the Standardized Plan with respect to whether a benefit,
right, or feature that is prospectively eliminated satisfies the current availability
requirements of § 1.401(a)(4)-4, if applicable.
.02

Nonstandardized Plans – An Adopting Employer of a Nonstandardized Plan

may rely on the plan’s Opinion Letter that the form of the Adopting Employer’s plan
satisfies the § 403(b) Requirements, provided that the Nonstandardized Plan has a
currently valid Opinion Letter, the Adopting Employer’s plan is identical to the
Nonstandardized Plan, and the Adopting Employer has not amended the plan other
than by choosing options provided under the plan or by making amendments that are
described in section 9.03 relating to employer amendments that will not affect reliance.
(1) Except as otherwise provided in this section 8.02, an Adopting Employer of a
Nonstandardized Plan may not rely on the plan’s Opinion Letter with respect to the
requirements, if applicable, of:

42

(a) § 401(a)(4), 410(b), or 414(s); or
(b) § 415, if the Adopting Employer or any of its Related Employers maintain
another § 403(b) plan covering any of the same participants as the Nonstandardized
Plan. (See also §§ 1.415(c)-1(d) and 1.415(f)-1(f) for special rules applicable to
§ 403(b) plans.) However, an Adopting Employer of a Nonstandardized Plan that adds
language to satisfy the requirements of § 415 due to the required aggregation of plans
may obtain reliance with regard to § 415 by applying for a determination letter using
Form 5307 (as updated). See section 8.04.
(2) An Adopting Employer of a Nonstandardized Plan may rely on the plan’s
Opinion Letter with respect to the requirements of § 410(b), if applicable, if all
nonexcludable employees benefit under the Adopting Employer’s plan.
(3) Nonstandardized Plans may permit an Adopting Employer to select an
allocation formula for contributions other than elective deferrals that satisfies one of the
design-based safe harbors in § 1.401(a)(4)-2(b)(2), and to select a safe harbor
compensation definition for the formula that satisfies § 1.414(s)-1(c). If the Adopting
Employer selects an allocation formula for contributions other than elective deferrals
that satisfies one of the design-based safe harbors in § 1.401(a)(4)-2(b)(2), and, if the
allocation formula is based on compensation, selects a safe harbor compensation
definition that satisfies § 1.414(s)-1(c), then the Adopting Employer may rely on an
Opinion Letter with respect to the nondiscriminatory amounts requirement under
§ 401(a)(4), if applicable. An Adopting Employer of a Nonstandardized Plan that
includes § 401(m) matching contributions may rely on the plan’s Opinion Letter with
respect to whether the form of the plan satisfies the ACP test of § 401(m)(2) if the

43

Adopting Employer elects to use a safe harbor definition of compensation in the test.
An Adopting Employer of a Nonstandardized Plan that meets the safe harbor
requirements described in § 401(m)(11) or 401(m)(12) may rely on the plan’s Opinion
Letter with respect to whether the form of the Adopting Employer’s plan satisfies the
requirements of § 401(m), unless the Adopting Employer’s plan provides for the safe
harbor contributions under § 401(m)(11) or 401(m)(12) to be made under another plan.
.03 Other limitations and conditions on reliance – Notwithstanding any provision in
this section 8 to the contrary, the following conditions and limitations regarding reliance
by an Adopting Employer on an Opinion Letter apply with respect to all § 403(b) Preapproved Plans:
(1) An Adopting Employer may rely on an Opinion Letter for a § 403(b) Preapproved Plan that amends or restates a plan of the Adopting Employer only if the form
of the plan that is being amended or restated satisfied the § 403(b) Requirements.
Accordingly, prior to being amended or restated, the plan must either have timely
corrected any Form Defects for which the Remedial Amendment Period is closed or
have corrected any plan document failures under the Employee Plans Compliance
Resolution System (EPCRS). See Rev. Proc. 2021-30, 2021-31 I.R.B. 172 (or its
successor).
(2) An Adopting Employer may not rely on an Opinion Letter if the Adopting
Employer’s adoption of a § 403(b) Pre-approved Plan precedes the issuance of an
Opinion Letter for the plan. In this case, in order to have reliance, the Adopting
Employer would need to re-adopt the § 403(b) Pre-approved Plan after the issuance of
the Opinion Letter for the plan.

44

(3) An Adopting Employer may not rely on an Opinion Letter if the adoption
agreement or other elective provisions in the plan are not completed correctly by the
Adopting Employer.
(4) An Adopting Employer may not rely on an Opinion Letter if any Investment
Arrangement under the plan or any other document that may be incorporated by
reference provides that the terms of the Investment Arrangement or other document
shall govern in the event of any conflict between the terms of the Investment
Arrangement or other document and the terms of the plan.
(5) The issuance of an Opinion Letter does not constitute a determination by the
IRS that an Adopting Employer’s plan is a Governmental Plan or that an Adopting
Employer is a Church or QCCO.
(6) Pursuant to section 10.10, a Provider’s failure to disclose a material fact,
misrepresentation of a material fact, or failure to accurately provide any of the
information called for on any form required by this revenue procedure (or in Appendix A,
if used) may result in the inability of Adopting Employers to rely on an Opinion Letter (for
example, if there is a failure to disclose a material fact, the IRS may revoke the Opinion
Letter due to the failure).
(7) Pursuant to section 11.03(2)(c), if a Mass Submitter fails to identify a
significant modification, the failure will be considered a material misrepresentation, and
an Adopting Employer may not rely on an Opinion Letter issued with respect to the plan
for the modification or any other provision of the plan that may be affected by the
modification.
.04 Obtaining a determination letter – An Adopting Employer of a Nonstandardized

45

Plan that makes amendments to the plan that are not extensive may obtain reliance that
the form of the plan, as amended, satisfies the § 403(b) Requirements by requesting a
determination letter using Form 5307 (as updated) under procedures similar to the
procedures applicable to § 401(a) pre-approved plans, and may do so regardless of
whether a prior determination letter has been issued with respect to the plan. In
addition, if an employer adds language to a § 403(b) Pre-approved Plan to satisfy the
requirements of § 415 due to the required aggregation of plans, the employer may
obtain reliance with regard to § 415 by applying for a determination letter on Form 5307
(as updated). The determination letter application must be filed during the applicable
Employer Adoption Window (for example, a determination letter application for a
Cycle 2 plan must be filed during the Cycle 2 Employer Adoption Window). The plan
submitted for a Form 5307 determination letter will be reviewed based on the
Cumulative List applicable to the underlying § 403(b) Pre-approved Plan. Specific
eligibility requirements and submission procedures applicable to filing a Form 5307
determination letter application will be provided in a future update of Rev. Proc. 2021-4
(updated annually).
SECTION 9. PLAN AMENDMENTS
.01 Provider plan amendments generally – Providers are required to amend their
§ 403(b) Pre-approved Plans to ensure that the form of their plans continues to satisfy
the § 403(b) Requirements. Providers must make reasonable and diligent efforts, as
soon as practicable following the adoption of plan amendments, to ensure that Adopting
Employers of the Provider’s plan have actually received and are aware of the plan
amendments. The date on which each amendment is adopted by the Provider must be

46

included with the amendment provided to Adopting Employers. Failure to comply with
these requirements may result in the loss of eligibility to offer § 403(b) Pre-approved
Plans and the revocation of an Opinion Letter that has been issued to the Provider.
.02 Interim amendment requirement – A § 403(b) Pre-approved Plan must be
operated in accordance with its written plan document. When there are changes to
§ 403(b) Requirements that affect the provisions of the written plan document, the
adoption of interim amendments generally will be required in accordance with the rules
set forth in section 11.04 of Rev. Proc. 2019-39. See section 22 of this revenue
procedure regarding the deadline by which interim amendments must be adopted.
Failure to make the interim amendments may result in the form of the plan failing to
satisfy the § 403(b) Requirements. The Provider must have a procedure to notify an
Adopting Employer of amendments and restatements of the plan and to inform the
Adopting Employer, when applicable, of the need to timely adopt or amend the plan,
including in the case of both initial adoption and restatement of the plan. The Provider
must also notify an Adopting Employer that failure to timely adopt the plan or
restatement, when required, or failure to take into account plan amendments in the
operation of the plan, could result in adverse tax consequences. See section 10.04 of
this revenue procedure for additional application submission requirements for interim
amendments.
.03 Employer amendments that will not affect reliance – As provided in section 8,
an Adopting Employer may continue to rely on an Opinion Letter for a § 403(b) Preapproved Plan if it makes amendments to the plan that are described in paragraphs (1)
through (8) of this section 9.03. See sections 8.01 and 8.02 for the effect of any other

47

amendments on reliance on an Opinion Letter by the Adopting Employer. The following
types of amendments will not cause an Adopting Employer to lose reliance on an
Opinion Letter:
(1) amendments to the plan to add or change a provision (including choosing
among options in the plan) or to specify or change the effective date of a provision,
provided the Adopting Employer is permitted to make the modification or amendment
under the terms of the § 403(b) Pre-approved Plan, as well as under § 403(b), and, in
the case of a Standardized Plan, the provision is identical to a provision in the § 403(b)
Pre-approved Plan, except for the effective date;
(2) sample or model amendments published by the IRS that specifically provide
that their adoption will not cause a plan to fail to be identical to the § 403(b) Preapproved Plan;
(3) amendments that adjust the limitations under §§ 415, 402(g), 401(a)(17), and
414(q)(1)(B) to reflect annual cost-of-living increases;
(4) plan language completed by the Adopting Employer if the overriding language
is necessary to satisfy § 415 because of the required aggregation of multiple plans
under that section, in accordance with section 5.09;
(5) interim amendments or discretionary amendments, as described in
sections 11 and 12 of Rev. Proc. 2019-39, that are related to a change in the § 403(b)
Requirements for the form of a plan;
(6) amendments that reflect a change of a Provider's name, in which case the
Provider must notify the IRS, in writing, of the change in name and certify that it still
meets the conditions to be a Provider described in section 4.21 (see also section 15

48

regarding changes in employer identification numbers);
(7) amendments to the administrative provisions in the plan (such as provisions
relating to investments, plan claims procedures, or the Adopting Employer’s contact
information), provided the amended provisions are not in conflict with any other
provision of the plan, still meet the requirements of this revenue procedure, and do not
cause the plan to fail to satisfy the § 403(b) Requirements (see section 11.03(1)(b)(ii)
for additional examples of administrative provisions); and
(8) amendments with respect to which a closing agreement under the Audit
Closing Agreement Program or a compliance statement under the Voluntary Correction
Program of EPCRS has been issued (see section 6.05(2)(b) of Rev. Proc. 2021-30
regarding the ability of the Adopting Employer to rely on the Opinion Letter).
.04 Effect of employer amendments on a plan’s eligibility for the Cycle system –
Except as provided in section 9.05, employer amendments made to the § 403(b) Preapproved Plan will not affect the plan’s eligibility for the Cycle system. See section 8.04
for situations in which an Adopting Employer may obtain a determination letter using
Form 5307 (as updated).
.05 Section 403(b) Pre-approved Plans treated as individually designed – An
Adopting Employer’s § 403(b) Pre-approved Plan will be treated as individually designed
(and the Adopting Employer may not rely on the plan’s Opinion Letter and will lose
eligibility for the Cycle system) under the following circumstances:
(1) An Adopting Employer makes any amendment to a Standardized Plan other
than an amendment listed in section 9.03 or as otherwise described in this section 9.05.
In this case, the Adopting Employer will lose reliance on the Opinion Letter as of the

49

effective date of the amendment but the plan will remain eligible for the Cycle system
(provided that the Adopting Employer adopts timely interim amendments) until the end
of the Cycle that includes the effective date.
(2) An Adopting Employer amends a § 403(b) Pre-approved Plan (including its
adoption agreement, if applicable) within one year of the date the Adopting Employer
initially adopted the § 403(b) Pre-approved Plan to incorporate a type of plan not
permitted in the Opinion Letter program, as described in section 6.03. In this case, the
Adopting Employer will be treated as never having had any reliance on the Opinion
Letter and will be treated as never having been eligible for the Cycle system.
(3) An Adopting Employer amends a § 403(b) Pre-approved Plan (including its
adoption agreement, if applicable) more than one year after the date the Adopting
Employer initially adopted the § 403(b) Pre-approved Plan to incorporate a type of plan
not permitted in the Opinion Letter program, as described in section 6.03. In this case,
the Adopting Employer will lose reliance on the Opinion Letter as of the effective date of
the amendment but the plan will remain eligible for the Cycle system (provided that the
Adopting Employer adopts timely interim amendments) until the end of the Cycle that
includes the effective date.
(4) The IRS, in its sole discretion, determines that a Nonstandardized Plan is an
individually designed plan due to amendments to the plan that are extensive (that is, the
plan of the Adopting Employer as amended is no longer substantially similar to the
Nonstandardized Plan of the Provider). In this case, the Adopting Employer generally
will lose reliance on the Opinion Letter as of the effective date of the amendments but
the plan will remain eligible for the Cycle system (provided that the Adopting Employer

50

adopts timely interim amendments) until the end of the Cycle that includes the effective
date.
(5) An Adopting Employer chooses to discontinue participation in a § 403(b) Preapproved Plan that has been amended by the Provider, without substituting another
§ 403(b) Pre-approved Plan. In this case, the Adopting Employer will lose reliance on
the Opinion Letter as of the date participation in the § 403(b) Pre-approved Plan ends
but the plan will remain eligible for the Cycle system (provided that the Adopting
Employer adopts timely interim amendments) until the end of the Cycle that includes the
date on which participation in the § 403(b) Pre-approved Plan ends.
(6) An Adopting Employer makes an amendment to a § 403(b) Pre-approved
Plan that removes any of the required provisions of section 5. In this case, the Adopting
Employer will lose reliance on the Opinion Letter as of the effective date of the
amendment but the plan will remain eligible for the Cycle system (provided that the
Adopting Employer adopts timely interim amendments) until the end of the Cycle that
includes the effective date.
.06 Example – Employer X adopts a newly approved Standardized Plan during the
Cycle 2 Employer Adoption Window. During the first year of Cycle 3, Employer X
makes an amendment described in section 9.05(1), effective as of the first day of the
plan year that begins during the first year of Cycle 3. Pursuant to section 9.05(1),
beginning on the first day of that plan year, Employer X’s plan is treated as an
individually designed plan. Pursuant to section 5.08, the Provider will no longer have
the authority to amend the plan on behalf of the Adopting Employer. Provided that
Employer X adopts timely interim amendments, Employer X’s plan will remain eligible

51

for the Cycle through the end of Cycle 3. Employer X decides to no longer be an
individually designed plan and adopts a Newly Approved § 403(b) Pre-approved Plan
during the Cycle 3 Employer Adoption Window. As a result, it will have a § 403(b) Preapproved Plan and be eligible for the Cycle system. However, if, instead, Employer X
decides to continue to be an individually designed plan, then, by the end of Cycle 3,
Employer X’s plan must be amended to reflect all changes in § 403(b) Requirements for
which the Remedial Amendment Period applicable to individually designed plans will
have expired; 8 moreover, after Cycle 3, Employer X’s plan is subject to the Remedial
Amendment Period rules for individually designed plans. See EPCRS,
Rev. Proc. 2021-30 (or its successor), for correcting a Form Defect after the expiration
of the Remedial Amendment Period for the Form Defect.
.07 No Form 5307 Determination Letter for Pre-approved Plans Treated as
Individually Designed – If a plan is treated as individually designed as provided in
section 9.05 of this revenue procedure, the employer may not file for a determination
letter using a Form 5307 (as updated). The IRS anticipates establishing a program that
would permit Adopting Employers to apply for a determination letter on Form 5300,
Application for Determination for Employee Benefit Plan, under rules and procedures
similar to the rules and procedures applicable to § 401(a) pre-approved plans (see
section 20.03 of Rev. Proc. 2016-37 and Rev. Proc. 2021-4 (updated annually)).
8 For an individually designed plan, the Remedial Amendment Period for a Form Defect related to a

change in § 403(b) Requirements generally ends on the last day of the second calendar year that begins
after the issuance of the Required Amendments List in which the change in § 403(b) Requirements
appears. Section 2.13. For example, if a change in § 403(b) Requirements occurs in the 1st year of
Cycle 3, and is placed on the Required Amendments List in the 2nd year of Cycle 3, then the Remedial
Amendment Period for a Form Defect related to that change would expire at the end of the 4th year of
Cycle 3.

52

SECTION 10. OPINION LETTER APPLICATIONS – INSTRUCTIONS TO PROVIDERS
AND OTHER RULES FOR APPLICATIONS AND OPINION LETTERS
.01 Issuance of an Opinion Letter – The IRS will, upon the application of a
Provider, issue an Opinion Letter as to satisfaction of the form of the Provider's plan
with the § 403(b) Requirements.
.02 Submission of Opinion Letter applications – Rev. Proc. 2019-39 provides that
every § 403(b) Pre-approved Plan will have a recurring Cycle. Rev. Proc. 2019-39 also
states that a Provider must submit an application for an Opinion Letter during the OnCycle Submission Period that relates to an applicable Cycle. Cycle 2 began on
July 1, 2020. Pursuant to this revenue procedure, the On-Cycle Submission Period for
Providers to submit applications for an Opinion Letter for Cycle 2 begins on
May 2, 2022, and ends on May 1, 2023. Providers may apply for an Opinion Letter for
Cycle 2 after this On-Cycle Submission Period, but these filings generally will be
considered “off-cycle.” See section 12 regarding IRS review of off-cycle filings.
.03 Procedure for applying for an Opinion Letter – The Provider must submit the
application for an Opinion Letter with respect to its plan. The IRS is developing the
application form to be used and will announce when the form becomes available. If the
application form is available when the application is being submitted, the Provider
should use the application form. If the form is not available when the application is
being submitted, the Provider may use Appendix A of this revenue procedure in lieu of
the application form. The application must be accompanied by: (1) the applicable
required user fee that will be provided for in the successors to Rev. Proc. 2021-4
(updated annually), (2) if an Opinion Letter had been issued for the § 403(b) Pre-

53

approved Plan for the preceding Cycle, a signed certification that all necessary
amendments required by the IRS for the form of the Provider’s plan to continue to
satisfy the § 403(b) Requirements have been made and communicated to all Adopting
Employers, and (3) any attachment or other document that the application form (or
Appendix A, if used) indicates is required. All information on the application form (or
Appendix A) must be typed. The application must be sent to the address provided in
section 20. The application must include a copy of the plan document and any adoption
agreement, if applicable. Copies of Investment Arrangements should not be submitted.
The IRS will not review for, and the Opinion Letter will not cover, any provisions
included in Investment Arrangements. Additionally, the IRS requests that applications
be submitted by thumb or flash drive instead of being submitted as paper files, and that
the documents be saved in Microsoft Word or Adobe Acrobat PDF format. The IRS
strongly encourages Providers to take advantage of this electronic submission
format. To pay a fee, a Provider must continue to submit a paper check and a paper
Form 8717-A, User Fee for Employee Plan Opinion or Advisory Letter Request.
.04 Additional submission requirements for interim amendments – If the § 403(b)
Pre-approved Plan has received an Opinion Letter for the preceding Cycle, in addition
to the application described in section 10.03, the Provider must submit a certification
that all interim amendments (and initial amendments, as described in section 4.11, if
applicable) on the applicable Cumulative List have been made, and a cover letter
summarizing how the provisions of the plan are affected by each amendment. The IRS
retains the right to request and secure from the Provider in appropriate circumstances
copies of all interim amendments (and initial amendments, if applicable) reflected on the

54

applicable Cumulative List that the Provider has adopted on behalf of its Adopting
Employers.
.05 Expediting review of substantially identical plans – The IRS reserves the right
to review applications in any order that will expedite the processing of Opinion Letter
applications, subject to section 12 regarding off-cycle filing. To expedite the review of
substantially identical plans that are not Mass Submitter plans, the IRS encourages plan
drafters and Providers to include with each Opinion Letter application, if appropriate, a
cover letter setting forth the following information:
(1) the name and file folder number (if available) of the plan that, for review
purposes, the plan drafter designates as the "lead plan" (including the name and EIN of
the Provider);
(2) a list of all plans written by the plan drafter that are substantially identical to
the lead plan (including the information described in paragraph (1) of this section 10.05
for each plan);
(3) a description of each location in the plan for which the application is being
submitted that is not word-for-word identical to the language of the lead plan, including
an explanation of the purpose and effect of each difference; and
(4) a certification made under penalties of perjury by the plan drafter that the
information described in paragraph (3) of this section 10.05 is true and complete.
If the Provider or plan drafter is aware that a lead plan or any substantially identical
plan has been assigned for review to a specialist, the cover letter also should indicate
the name of the specialist, if possible. To the extent feasible, lead plans and
substantially identical plans should be submitted together. The IRS will regard the

55

information and certification described in paragraphs (3) and (4) of this section 10.05 as
a representation of a material fact for purposes of issuing an Opinion Letter.
.06 Use of same basic plan document by multiple plans; separate applications
required for different categories of Adoption Agreement Plans
(1) In general, provided that the provisions of a basic plan document are identical
for all plans using that document, separate adoption agreements may be associated
with the same basic plan document. Thus, for example, a Governmental Plan, a plan of
a Church or QCCO, and a plan of a non-QCCO that use separate adoption agreements
may be associated with the same basic plan document. In addition, a single adoption
agreement may be drafted to cover multiple types of Eligible Employers.
(2) Section 403(b) Pre-approved Plans that are intended to be Retirement
Income Accounts and plans that are not Retirement Income Accounts may not be set
forth in the same basic plan document.
(3) Standardized and Nonstandardized Plans may not be set forth in a single
adoption agreement.
(4) A separate application form (or Appendix A) must be submitted with respect
to each adoption agreement for which an Opinion Letter is applied. A basic plan
document and all associated adoption agreements should be submitted simultaneously.
Only one copy of the basic plan document should be provided. However, if additional
adoption agreements are later submitted with respect to a basic plan document, the
Provider must submit a copy of the basic plan document with each submission and
include a cover letter identifying the original submission (including the date submitted).
In that case, the plan number given to the basic plan document must remain the same

56

as in the prior submission.
.07 Separate applications required for Single Document Plans – A separate plan
and application is required for a Single Document Plan. A Single Document Plan may
accommodate usage by more than one type of Eligible Employer; however, a
Retirement Income Account plan must always be filed as a separate Single Document
Plan. Standardized and Nonstandardized Plans may not be combined in one Single
Document Plan.
.08 Sample language – The IRS anticipates providing updated LRMs before the
On-Cycle Submission Period with respect to a Cycle begins. Although sample
language is designed for use in plans that use an adoption agreement format, in order
to expedite processing, Providers are encouraged to refer to the sample language as a
guide in drafting Single Document Plans. Specifically, to expedite the review of their
plans, Providers are encouraged to use LRM language if appropriate and to identify the
location of the LRM language in their § 403(b) Pre-approved Plan. The updated LRMs,
when available, may be downloaded from the Internet at http://www.irs.gov/RetirementPlans/Listing-of-Required-Modifications-LRMs.
.09

Material furnished to Adopting Employers – A Provider must furnish each

Adopting Employer with a copy of the approved § 403(b) Pre-approved Plan, copies of
any subsequent amendments, and the most recently issued Opinion Letter for the plan
from the IRS.
.10 Effect of failure to disclose material fact or to accurately provide information – A
failure to disclose to the IRS a material fact, a misrepresentation of a material fact in the
application, or the failure to accurately provide any of the information called for on any

57

form or Appendix A required by this revenue procedure may result in the inability of
Adopting Employers to rely on the Opinion Letter (for example, if there is a failure to
disclose a material fact, the IRS may revoke the Opinion Letter due to the failure). See
section 8.03(6) regarding limitations on reliance. The Provider may be required by the
IRS to immediately notify all Adopting Employers of any of its § 403(b) Pre-approved
Plans affected by the failure if the Adopting Employer’s reliance on the Opinion Letter is
affected or if the failure could result in adverse tax consequences for the Adopting
Employer.
.11 Additional information may be requested – When reviewing the application for
an Opinion Letter, the IRS may, in its discretion, require any additional information that it
deems necessary, including a demonstration of how the variables (options or
alternatives) in the § 403(b) Pre-approved Plan interrelate to satisfy the § 403(b)
Requirements. If a letter requesting changes to the § 403(b) Pre-approved Plan is sent
to the Provider or an authorized representative, changes responsive to the letter must
be received no later than 30 days from the date of the letter, and the response must
include either a copy of the plan with the changes highlighted or, if the changes are not
numerous, replacement pages. If the changes are not received within 30 days, the
application may be considered withdrawn. An extension of the 30-day time limit will be
granted only for good cause.
.12 Inadequate submissions – The IRS will return, without further action or
refunding the user fee, plans that are not in substantial compliance with the § 403(b)
Requirements, or plans that are so deficient that they cannot be reviewed in a
reasonable period of time. A plan may be considered not to be in substantial

58

compliance if, for example, it omits language needed to comply with a § 403(b)
Requirement or merely incorporates requirements by reference to the applicable Code
section. The IRS will not consider a plan with such an omission or cross-reference until
after the plan has been revised and resubmitted, and the modified plan will be treated
as a new application for approval as of the date it is resubmitted, and therefore will be
treated as off-cycle, as set forth in section 10.02, if resubmitted after the On-Cycle
Submission Period. No additional user fee will be charged if an inadequate submission
is amended to be in substantial compliance and is resubmitted to the IRS within 30 days
following the date the Provider is notified of the inadequacy.
.13

Nonidentification of questionable issues may cause delay – If the § 403(b) Pre-

approved Plan submitted as part of an Opinion Letter application includes a provision
that gives rise to an issue for which contrary published authorities exist, failure to
disclose to the IRS and address any significant contrary authorities may result in
requests for additional information, which will delay action on the application. See
section 10.11.
.14

No Opinion Letter for later plan amendments – The IRS will not issue an

Opinion Letter with respect to amendments made between applicable On-Cycle
Submission Periods, and the Provider should not submit an application for an Opinion
Letter with respect to plan amendments. Instead, the Provider should submit a restated
plan, including the amendments, during the next On-Cycle Submission Period.
SECTION 11. ADDITIONAL REQUIREMENTS FOR MASS SUBMITTERS
.01 Opinion Letter issued to Mass Submitters
(1) The IRS will, upon the application by a Mass Submitter, issue an Opinion

59

Letter as to the satisfaction of the form of the Mass Submitter's plan with the § 403(b)
Requirements. See section 10 for the instructions for Opinion Letter applications. In
the case of an initial submission of a § 403(b) Pre-approved Plan under this revenue
procedure, the Mass Submitter’s application also must be accompanied by applications
for an Opinion Letter filed on behalf of the requisite number of Providers that are
offering the same plan on a word-for-word basis as provided in section 11.02, unless
the Mass Submitter has already satisfied this requirement in connection with a previous
application under this revenue procedure involving another § 403(b) Pre-approved Plan.
Any plan submitted by a Mass Submitter must include language designating the Mass
Submitter as agent for the Provider forpurposes of making plan amendments.
(2) After satisfying the requirement as to the number of adopting Providers, the
Mass Submitter may submit additional applications on behalf of other Providers that
wish to adopt a word-for-word identical plan to the Mass Submitter plan (as an identical
adopter) or a plan that includes Minor Modifications to the Mass Submitter plan (as a
minor modifier adopter). In addition, the Mass Submitter may then submit applications
for an Opinion Letter under this section 11.01 for its other plans, regardless of the
number of identical adopters of the other plans.
.02

Reduced procedural requirements for Providers that use Mass Submitter plans

– A Provider of a plan of a Mass Submitter must obtain an Opinion Letter. The Mass
Submitter must submit on behalf of each Provider a completed application form (or
Appendix A) that includes a declaration by the Mass Submitter under penalties of
perjury that the Provider will offer a plan that is word-for-word identical to a plan of the
Mass Submitter, or a plan that is a Minor Modification of the Mass Submitter's plan. The

60

application must be typed. If the Provider is offering a word-for-word identical plan
(including a Flexible Plan) a copy of the plan need not be submitted. If the Mass
Submitter submits a plan with Minor Modifications, it must comply with the requirements
of section 11.03(2). The application must be accompanied by the required user fee that
will be provided in the successors to Rev. Proc. 2021-4 (updated annually) and a signed
certification that all necessary amendments required by the IRS for the form of the
Provider’s plan to continue to satisfy the § 403(b) Requirements have been made and
communicated to all Adopting Employers. Upon receipt of the application for an
Opinion Letter, the IRS will, as soon as administratively feasible, issue an Opinion Letter
with respect to the Provider’s plan (provided that an Opinion Letter has been issued with
respect to the Mass Submitter’s plan).
.03 Definitions for Mass Submitter plans
(1) Flexible Plan
(a) In general – A "Flexible Plan" is a plan submitted by a Mass Submitter that
includes optional provisions, as described in the immediately subsequent paragraph (b)
of this section 11.03. Providers that adopt the Flexible Plan may include or delete any
optional provision that is designated as an optional provision in the Mass Submitter's
plan, provided the inclusion or deletion of specific optional provisions conforms to the
Mass Submitter's written representation to the IRS concerning the choices available to
Providers and the coordination of optional provisions. A Mass Submitter must bracket
and identify the optional provisions when submitting the plan to the IRS, and also must
provide the IRS a written representation describing the choices available to Providers
and the coordination of optional provisions. Thus, the representation must indicate

61

whether a Provider's plan may include only one of a certain group of optional provisions,
may include only a specific combination of provisions, or may exclude the provisions
entirely. Similarly, if the inclusion (ordeletion) of a specific optional provision in a
Provider's plan will automatically result in the inclusion (or deletion) of any other optional
provision, this must be set forth in the Mass Submitter's representation. A Flexible Plan
may include only optional provisions that meet the requirements of section 11.03(1)(b),
and must be drafted so that the satisfaction of the § 403(b) Requirements of the form of
any Provider's plan will not be affected by the inclusion or deletion of optional
provisions. For example, a Flexible Plan could include as an optional provision a
provision permitting participant loans, provided that the provision satisfies the § 403(b)
Requirements and the plan is drafted so that the exclusion of the provision does not
cause the plan to fail to satisfy the § 403(b) Requirements. A Flexible Plan adopted by
a Provider that differs from the Mass Submitter plan only because the Provider has
deleted certain optional provisions from its plan in conformance with the Mass
Submitter's representation described in this paragraph will be treated as a word-forword identical plan to the Mass Submitter plan. The IRS encourages Mass Submitters
to limit the number of optional provisions described in section 11.03(1)(b)(i) and (ii) that
they provide under a Flexible Plan to six investment provisions and six administrative
provisions.
(b) Optional provisions – A Flexible Plan may include optional provisions that
comply with the requirements set forth in this paragraph. The optional provisions may
be arranged as separate optional articles or sections within a § 403(b) Pre-approved
Plan or as separate optional provisions within a single article or section. A Flexible Plan

62

also may include related optional provisions in the adoption agreement. For example, if
a plan document for a Mass Submitter Flexible Plan includes an optional provision that
would permit loans under a Provider's plan, the adoption agreement may also include
an optional provision that would enable an Adopting Employer to elect whether loans
will be available under the plan it adopts. If the Provider does not wish to enable
Adopting Employers to make loans available under their plans, the Provider would
delete from the Provider’s plan the optional provisions in both the plan document and
the adoption agreement. A Provider may include or delete optional provisions of a
Mass Submitter plan, but once the Provider has decided to include an optional
provision, it must offer that provision to all Adopting Employers. Any optional provision
that the IRS determines does not meet the requirements of this section 11.03(1)(b) must
be changed to a non-optional provision or deleted from the Mass Submitter's plan. The
following is an exclusive list of the permittable optional provisions that a Flexible Plan
may include:
(i) Investment provisions – A Mass Submitter may offer a variety of
investment provisions in its plan for Providers to include or delete from their version of
the plan. However, the plan as adopted by a Provider must provide a method for
investing assets. Investment provisions are those provisions that describe the plan's
methods of investing assets, including provisions such as the availability of loans and
self-directed investments.
(ii) Administrative provisions – A Mass Submitter may offer a variety of
administrative provisions in its plan for Providers to include or delete from their version
of the plan. However, the plan as adopted by a Provider must describe how the plan

63

will be administered. Administrative provisions are those provisions that describe the
administration of the plan, including the powers, duties, and responsibilities of a plan's
custodian, administrator, Adopting Employer, and other fiduciaries. Pursuant to
section 5.07, every § 403(b) Pre-approved Plan must provide for an appendix to identify
the parties responsible for the various administrative functions under the plan. Optional
administrative provisions that a Provider may include in or delete from its version of the
plan include the resignation or replacement of fiduciaries, the claims procedures under
the plan, and the record-keeping requirements. However, procedural provisions that
are required for the form of a plan to meet the § 403(b) Requirements are not
administrative provisions under this section. For example, an administrative provision
does not include a provision regarding the annual notice to participants explaining the
aggregation rules for the limitation on annual additions to a plan (if a participant is in
control of any employer).
(2) Minor Modifications
(a) A "Minor Modification" is a minor change to an otherwise word-for-word
identical § 403(b) Pre-approved Plan of the Mass Submitter that the IRS determines
does not require an in-depth IRS technical review. For example, a change that limits
the number of participant loans or a change that adds a new choice of plan entry date
would be considered a Minor Modification. By contrast, a change by a Provider of a
plan meant to be adopted by a public school, as defined in section 5.17(1)(a), to remove
any nondiscrimination provisions that do not apply to a public school from a Mass
Submitter’s § 403(b) Pre-approved Plan that was designed for a tax-exempt
organization would not be considered a Minor Modification. A Minor Modification must

64

be submitted by the Mass Submitter on behalf of the Provider that will adopt the
modified plan. Subject to sections 11.05 and 12 and the provisions of this section 11.03,
submissions with respect to Minor Modifications will be reviewed on an expedited basis,
and an Opinion Letter will be issued to the Provider as soon as possible, which might be
after the issuance of Opinion Letters to other Providers (see section 13).
(b) The IRS reserves the right to determine if the changes described in
paragraph (a) of this section 11.03(2) are minor (for example, if the changes are not
numerous and do not require an in-depth technical review). If it is determined that the
changes are not minor, the plan submitted under section 11.03(2)(c) will not be entitled
to expedited review and will otherwise be treated as a non-Mass Submitter plan. In the
event the plan is treated as a non-Mass Submitter plan, the IRS will notify the Mass
Submitter in writing of its determination. Within 30 days following the date the
notification is provided, either the Mass Submitter may revise the plan so that the
modifications are minor and resubmit the revised plan, or the Provider may submit the
application form (or Appendix A) and an additional user fee in an amount equal to the
difference between a non-Mass Submitter plan application user fee and a minor
modifier adopter application user fee. If, after the 30-day period, neither action has
been taken, the IRS may treat the application as having been withdrawn.
(c) The Mass Submitter must initially submit the first page of the application
form (or the entire Appendix A) as a placeholder with respect to each Provider that will
offer a plan that is a Minor Modification of the Mass Submitter’s plan during the OnCycle Submission Period. The application form (or Appendix A) must be typed. When
the IRS sends a notification to the applicable Mass Submitter with respect to the Mass

65

Submitter’s plan indicating that the IRS has determined that the plan appears to be in
full compliance with the applicable § 403(b) Requirements, the Mass Submitter must
submit a copy of the Mass Submitter's plan with the modifications highlighted, as well as
a statement indicating the location and effect of each change. The Mass Submitter
must certify under penalties of perjury that the plan of the Provider, except for the
delineated changes, is word-for-word identical to the plan for which the Mass Submitter
will be receiving or has received an Opinion Letter. If a Mass Submitter fails to identify
a significant modification, the failure will be considered a material misrepresentation,
and an Adopting Employer may not rely on the Opinion Letter that may be issued with
respect to the plan for the modification or any other provision of the plan that may be
affected by the modification. See section 8.03(7) regarding limitations on reliance. The
Mass Submitter must also immediately notify any affected minor modifier adopter, and
the minor modifier adopter must notify all Adopting Employers of any of its § 403(b) Preapproved Plans affected by the failure and the notification must explain the effect on the
reliance by Adopting Employers on the Opinion Letter. If a Mass Submitter repeatedly
fails to identify the modifications, the IRS may deny permission to that Mass Submitter
to submit additional modifications.
.04 Amendments of Mass Submitter plans – If a Mass Submitter amends one of its
§ 403(b) Pre-approved Plans, the Mass Submitter must provide copies of the
amendment to Providers that have adopted the plan. Any Provider that does not wish
to make the amendments made by a Mass Submitter may switch to another Mass
Submitter or may submit an application for an Opinion Letter on its own behalf during
the next applicable On-Cycle Submission Period for § 403(b) Pre-approved Plans. The

66

IRS will not issue an Opinion Letter with respect to amendments made between
applicable On-Cycle Submission Periods, and a Mass Submitter should not submit an
application for an Opinion Letter with respect to plan amendments. Instead, the Mass
Submitter should submit a restated plan, including the amendments, during the next
Cycle.
.05 Expeditious processing accorded Mass Submitter plans – Subject to
section 12, all Mass Submitter plans, including approved Mass Submitter plans adopted
by Providers, will be accorded more expeditious processing than plans submitted by
non-Mass Submitters, to the extent administratively feasible.
SECTION 12. OFF-CYCLE FILINGS
.01 Identical adopter – An application for an Opinion Letter for a § 403(b) Preapproved Plan that is word-for-word identical to a Mass Submitter § 403(b) Preapproved Plan will not be treated as off-cycle, as defined in section 10.02, merely
because it is submitted after the end of the applicable On-Cycle Submission Period for
the Cycle. Applications for a plan that is word-for-word identical to a Mass Submitter’s
§ 403(b) Pre-approved Plan for a Cycle may be submitted until the IRS informs the
Mass Submitter that word-for-word identical applications will no longer be accepted,
which is expected to be shortly before the issuance of Opinion Letters for the next
Cycle.
.02 Other applications – Any other application for an Opinion Letter (including that
of a minor modifier adopter of a Mass Submitter plan) that is submitted after the
applicable On-Cycle Submission Period for a Cycle is treated as off-cycle, as defined in
section 10.02. If an off-cycle application for a Cycle is submitted before the beginning of

67

the Employer Adoption Window for that Cycle, the IRS generally will not review the
application until it has reviewed and processed all applications submitted during that
Cycle’s On-Cycle Submission Period. However, the IRS may, in its discretion,
determine whether the processing of off-cycle filings may be prioritized and accelerated.
Off-cycle applications for a Cycle that are submitted during or after that Cycle’s
Employer Adoption Window will not be accepted.
SECTION 13. REVIEW OF OPINION LETTER APPLICATIONS; ISSUANCE OF
OPINION LETTERS; EMPLOYER ADOPTION WINDOW
.01 Scope of review – The IRS will review the plans that have been submitted
during the On-Cycle Submission Period for a Cycle (as well as later identical adopter
applications and applications that are off-cycle that the IRS will review in accordance
with section 12) taking into account the applicable Cumulative List for the Cycle. The
IRS will also consider in its review of any Opinion Letter application all § 403(b)
Requirements that are not described in section 13.02(3), and not solely those on the
applicable Cumulative List. 9 For example, if a Provider submits an application for a
Cycle 2 Opinion Letter for a new plan that did not receive a Cycle 1 Opinion Letter, the
IRS will review the plan taking into account the Cumulative List for Cycle 2, as well as
the § 403(b) Requirements that were reviewed during Cycle 1.
.02 Cumulative List
(1) For each Cycle, the IRS intends to publish a Cumulative List for § 403(b) Preapproved Plans shortly before the start of the Cycle’s On-Cycle Submission Period.

9 In order to satisfy the § 403(b) Requirements, a plan must comply with all relevant § 403(b)

Requirements, not solely those on the applicable Cumulative List, which generally reflects only the most
recent changes to the § 403(b) Requirements.

68

(2) The Cumulative List for a Cycle will identify changes in the § 403(b)
Requirements that will be taken into account with respect to the plan document
submitted to the IRS for the Cycle and that were not taken into account by the IRS in its
review during any prior Cycle.
(3) Except as provided in the applicable Cumulative List, the IRS generally will
not consider in its review of any Opinion Letter application any:
(a) guidance issued after approximately 90 days (the exact date being stated
in the Cumulative List) prior to the date the applicable Cumulative List is issued;
(b) statutes enacted after approximately 90 days (the exact date being stated
in the Cumulative List) prior to the date the applicable Cumulative List is issued;
(c) statutes that are first effective in the year in which the On-Cycle Submission
Period begins for which there is no guidance identified on the applicable Cumulative List
(regardless of when they are enacted); or
(d) § 403(b) Requirements (either statutory or regulatory) that become
effective for the plan in a calendar year following the calendar year in which the OnCycle Submission Period begins, regardless of when the § 403(b) Requirements are
enacted or issued (for example, § 403(b) Requirements first effective in 2023, for
applications submitted during the On-Cycle Submission Period beginning in 2022).
.03 Timing of issuance of Opinion Letters – The IRS intends to issue Opinion
Letters for a Cycle to Mass Submitters and Providers at approximately the same time
within the Cycle for all applications submitted during the Cycle’s On-Cycle Submission
Period (other than an application for a plan that is a Minor Modification of a Mass
Submitter plan). Prior to issuing Opinion Letters for a Cycle, the IRS will send a

69

notification to the applicable Mass Submitter or Provider, if the IRS determines that the
plan appears to be in full compliance with the applicable § 403(b) Requirements, based
on the submissions and the review as of the date of notification. However, this
notification will only indicate that the plan appears to meet the applicable § 403(b)
Requirements under review as of the date of the notification. This notification is for the
convenience of the applicable Mass Submitter or Provider concerning the status of its
application and does not constitute an official Opinion Letter on which the Mass
Submitter or Provider may rely. Also see section 8.03(2), which provides that an
Adopting Employer

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Airs%3Aa0037d2910b0f7ac. Public record. Not legal advice.