Rev. Proc. 2023-37

Rev. Proc. 2023-37

TABLE OF CONTENTS

PART I.

OVERVIEW

SECTION 1.

SECTION 2.

SECTION 3.

SECTION 4.

PURPOSE

BACKGROUND

ORGANIZATION OF REVENUE PROCEDURE; SIGNIFICANT

CHANGES

DEFINITIONS

PART II. REMEDIAL AMENDMENT CYCLES AND REMEDIAL AMENDMENT

PERIODS

SECTION 5.

SECTION 6.

SECTION 7.

SECTION 8.

REMEDIAL AMENDMENT CYCLE SYSTEM

REMEDIAL AMENDMENT PERIODS

PLAN AMENDMENT DEADLINES

SCHEDULES FOR REMEDIAL AMENDMENT CYCLES

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

SECTION 9. PROVISIONS REQUIRED IN PRE-APPROVED PLANS

SECTION 10. OPINION LETTERS - SCOPE

SECTION 11. ELIGIBILITY FOR THE CYCLE SYSTEM

SECTION 12. EMPLOYER RELIANCE ON OPINION LETTER

SECTION 13. PLAN AMENDMENTS

SECTION 14. OPINION LETTER APPLICATIONS - INSTRUCTIONS TO PROVIDERS

AND OTHER RULES FOR APPLICATIONS AND LETTERS

SECTION 15. ADDITIONAL REQUIREMENTS FOR MASS SUBMITTERS

SECTION 16. FILINGS MADE AFTER THE SUBMISSION PERIOD

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

SECTION 18. WITHDRAWAL OF APPLICATIONS

SECTION 19. NONTRANSFERABILITY OF OPINION LETTER

SECTION 20. NOTIFICATION OF ADOPTING EMPLOYER REGARDING FAILURE

OF THE FORM OF THE PLAN TO SATISFY QUALIFICATION

REQUIREMENTS OR SECTION 403(b) REQUIREMENTS

SECTION 21. DISCONTINUED PLANS

SECTION 22. REVOCATION OF OPINION LETTER BY THE IRS

SECTION 23. RECORD KEEPING REQUIREMENTS

SECTION 24. WHERE TO FILE

PART IV. PROCEDURES FOR AN ADOPTING EMPLOYER APPLYING FOR A

DETERMINATION LETTER

SECTION 25. ADOPTING EMPLOYER APPLYING FOR A DETERMINATION

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LETTER

PART V. MISCELLANEOUS

SECTION 26. EFFECT ON OTHER DOCUMENTS

SECTION 27. EFFECTIVE DATE

SECTION 28. PUBLIC COMMENTS

SECTION 29. PAPERWORK REDUCTION ACT

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PART I.

OVERVIEW

SECTION 1.

PURPOSE

.01 In general. This revenue procedure sets forth the rules regarding Qualified Preapproved Plans and Section 403(b) Pre-approved Plans, and combines, conforms,

clarifies, and updates rules for Qualified Pre-approved Plans and Section 403(b) Preapproved Plans previously set forth in prior revenue procedures, as described in

section 1.01(1) through (3). 1 Combining these prior revenue procedures allows for the

rules for the different types of Pre-approved Plans to be more easily conformed to each

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

categories:

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

plan amendment deadlines. This revenue procedure sets forth the rules regarding

Remedial Amendment Periods, the Remedial Amendment Cycle system, and plan

amendment deadlines for Qualified Pre-approved Plans and for Section 403(b) Preapproved Plans, which were previously set forth in Rev. Proc. 2016-37,

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

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

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

2020-25 IRB 948, Rev. Proc. 2020-40, and Rev. Proc. 2021-37, 2021-38 IRB 385 (with

respect to Section 403(b) Pre-approved Plans). The rules regarding Remedial

Amendment Periods, the Remedial Amendment Cycle system, and plan amendment

deadlines are effective on November 21, 2023.

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

forth the procedures for a Provider to apply for an Opinion Letter confirming that the

form of the Provider’s plan satisfies the Qualification Requirements or Section 403(b)

Requirements (procedures that were previously set forth in Rev. Proc. 2017-41, as

modified by Rev. Proc. 2018-21, 2018-41 IRB 467 (with respect to Qualified PreApproved Plans), and in Rev. Proc. 2021-37 (with respect to Section 403(b) Preapproved Plans)). The rules regarding the application procedures for an Opinion Letter

are effective with respect to:

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

(Cycle 4 for defined contribution Qualified Pre-approved Plans began on

February 1, 2023 (see section 1.02 for the start of the Submission Period for Cycle 4));

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

All references to “section” in this revenue procedure are to sections of this revenue procedure unless

otherwise provided (such as with defined terms like Section 403(b) Pre-approved Plans and

Section 403(b) Requirements). All references using “§” in this revenue procedure are to sections of the

Internal Revenue Code or to Treasury regulations.

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

(c) A Cycle 3 (or later) Section 403(b) Pre-approved Plan (the Cycle 2

Submission Period for Section 403(b) Pre-approved Plans ended on May 1, 2023, and

Provider applications for Opinion Letters are currently being reviewed for these Preapproved Plans).

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

procedure also sets forth the procedures for an Adopting Employer of a Qualified Preapproved Plan or a Section 403(b) Pre-approved Plan to apply for a determination letter

regarding the Adopting Employer’s plan (procedures that were previously set forth in

Rev. Proc. 2016-37 and Rev. Proc. 2017-41 (for an Adopting Employer of a Qualified

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

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

a determination letter apply to:

(a) An application for a determination letter submitted by an Adopting

Employer with respect to a Cycle 4 (or later) defined contribution Qualified Preapproved Plan;

(b) An application for a determination letter submitted by an Adopting

Employer with respect to a Cycle 4 (or later) defined benefit Qualified Pre-approved

Plan; and

(c) An application for a determination letter submitted by an Adopting

Employer with respect to a Cycle 2 (or later) Section 403(b) Pre-approved Plan. 2

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

Plans. Pursuant to this revenue procedure, the Submission Period for a Provider of a

defined contribution Qualified Pre-approved Plan to submit an application for a Cycle 4

Opinion Letter begins on February 1, 2024, and ends on January 31, 2025. A Provider

may apply for a Cycle 4 Opinion Letter at other times. See section 16 regarding filings

made after the Submission Period.

SECTION 2.

BACKGROUND

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

has a recurring six-year remedial amendment cycle and that pre-approved plan

providers may apply for new opinion letters during a remedial amendment cycle.

Rev. Proc. 2016-37 also sets forth an extension of the remedial amendment period and

The rules regarding an Adopting Employer’s application for a determination letter apply for Cycle 2

Section 403(b) Pre-approved Plans because, although Cycle 2 has begun, Cycle 2 Opinion Letters have

not been issued and the Employer Adoption Window for Cycle 2 (during which an application for a

determination letter would generally be submitted) has not begun.

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adoption deadline for plan amendments for qualified pre-approved plans. 3

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

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

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

forth a system of recurring remedial amendment periods for correcting form defects in

§ 403(b) pre-approved plans first occurring after June 30, 2020. Rev. Proc. 2019-39

also establishes a system of § 403(b) pre-approved plan cycles during which a provider

may submit a § 403(b) pre-approved plan for review and approval by the Internal

Revenue Service (IRS). Rev. Proc. 2019-39 also sets forth plan amendment deadlines

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

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

opinion letters regarding the satisfaction in form of § 403(b) pre-approved plans with

respect to the requirements of § 403(b) of the Internal Revenue Code (Code) for

remedial amendment cycle 2. Rev. Proc. 2021-37 also sets forth the rules for

determining when remedial amendment periods expire for § 403(b) pre-approved plans.

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

and procedures for an employer to submit a determination letter application for an

individually designed qualified or § 403(b) plan for an initial plan determination, for a

determination upon plan termination, and in certain other circumstances identified by

the IRS in guidance published in the Internal Revenue Bulletin (IRB).

Rev. Proc. 2022-40 also sets forth the remedial amendment period rules and plan

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

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

sets forth the general procedures on the issuance of Employee Plans determination

letters, including a determination letter for an adopting employer’s pre-approved plan.

SECTION 3.

ORGANIZATION OF REVENUE PROCEDURE; SIGNIFICANT

CHANGES

.01 Organization of this revenue procedure.

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

significant changes, and definitions for this revenue procedure.

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The rules of Rev. Proc. 2016-37 still apply for Cycle 3 Qualified Pre-approved Plans. However, Cycle 4

Qualified Pre-approved Plans (whether defined contribution or defined benefit) will be governed by this

revenue procedure and not Rev. Proc. 2016-37.

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The rules of Rev. Proc. 2017-41 still apply for Cycle 3 Qualified Pre-approved Plans. However, Cycle 4

Qualified Pre-approved Plans (whether defined contribution or defined benefit) will be governed by this

revenue procedure and not Rev. Proc. 2017-41.

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

Periods, the Remedial Amendment Cycle system, and plan amendment deadlines for

Qualified Pre-approved Plans and for Section 403(b) Pre-approved Plans.

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

Opinion Letter confirming that the form of the Provider’s plan satisfies the Qualification

Requirements or Section 403(b) Requirements.

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

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

letter regarding the Adopting Employer’s plan.

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

provisions regarding the effect on other documents, the effective date, and public

comments.

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

the prior revenue procedures (which set forth rules for qualified pre-approved plans and

§ 403(b) pre-approved plans) into this revenue procedure, numerous changes were

made to conform, clarify, and update the rules. The following are some examples of

those changes.

(1) For all Pre-approved Plans.

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

Defects is clarified to expire at the same time as the deadline for the adoption of Interim

Amendments, as set forth in section 7. See section 6.03(1).

(b) The end of the Remedial Amendment Period for Discretionary

Amendments made by an Adopting Employer (not by a Provider) is changed. See

section 6.03(2).

(c) The Interim Amendment rules are updated to provide that, if an Adopting

Employer does not correct a failure to timely adopt an Interim Amendment within two

years after the time period set forth in section 7, then the Adopting Employer’s plan will

be treated as an individually designed plan at the end of that two-year period. See

section 6.04.

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

designed plan Remedial Amendment Period deadline. See section 7.01(1)(a) and

(2)(a).

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

provide additional time beyond the deadline for a plan that is not a Governmental Plan

only to the extent any action is required to be taken by the Adopting Employer in order

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to adopt the amendment. See section 7.01(2).

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

changed to require that, for a plan that was not in existence in the immediately

preceding Cycle, the plan must have been submitted for an Opinion Letter for the Cycle

before the employer adopts it. See section 11.01(1).

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

harbor deferral-only plan described in § 403(b)(16), 5 an Adopting Employer’s reliance is

updated to include those sections. See section 12.01(6) and 12.02(6).

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

individually designed plan, and the consequences of such treatment, are updated and

clarified. See section 13.05.

(i) The rules for issuing an Opinion Letter are clarified to provide that an

Opinion Letter will not be issued for amendments made between Submission Periods.

Instead, a Provider must submit a restated plan that incorporates the amendments

during the next Submission Period. See section 14.15.

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

section 17.01(1) and (2).

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

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

clarified and updated. See section 25.

(2) For Qualified Pre-approved Plans.

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

Mass Submitter is changed to better match the rules for a Mass Submitter with respect

to a Section 403(b) Pre-approved Plan. See section 4.01(10).

(b) The number of employer-clients a Provider must have is changed to

better match the rules for a Provider with respect to a Section 403(b) Pre-approved

Plan. See section 4.01(15).

(c) The Qualification Requirements are clarified to include § 409 for ESOPs.

See section 4.02(3).

Section 121 of Division T of the Consolidated Appropriations Act, 2023, Pub. L. 117-328, 136 Stat. 4459

(2022), known as the SECURE 2.0 Act of 2022, added §§ 401(k)(16) and 403(b)(16) to the Code,

effective for plan years beginning after December 31, 2023.

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

changed to match the rules relating to a Cycle for a Section 403(b) Pre-approved Plan.

Accordingly, each Cycle is no longer a fixed six years, and each Cycle now ends at the

end of the Employer Adoption Window (with the result that the Submission Period may

begin after the first day of a Cycle). See section 5.02.

(e) The required provisions for a Qualified Pre-approved Plan that is a

pension plan and not a Governmental Plan are changed to require that the plan must

have a normal retirement age that is not less than age 55. See section 9.02(13).

(f) The effect of an amendment with respect to which a closing agreement

under the Audit Closing Agreement Program or a compliance statement under the

Voluntary Correction Program of the Employee Plans Compliance Resolution System

(EPCRS) has been issued is clarified to match the rules for a Section 403(b) Preapproved Plan and provide that reliance on the Opinion Letter will not be lost. See

section 13.02(8).

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

longer require attachments required in prior Cycles. See section 14.03, which no longer

has the requirement.

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

changed to match the rules for a Provider failure to disclose a material fact with respect

to a Section 403(b) Pre-approved Plan. See section 14.11.

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

are changed to match the rules for a Mass Submitter’s failure to identify a modification

with respect to a Section 403(b) Pre-approved Plan. See section 15.03(2)(c).

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

match the rules for a discontinued plan with respect to a Section 403(b) Pre-approved

Plan. See section 21.02.

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

(a) The integral amendment portion of the definition of Form Defect is

changed to better match the Qualified Pre-approved Plan rules for a Disqualified

Provision. See section 4.03(2).

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

that provides only for elective deferrals are updated to add requirements regarding

hardship distributions and § 415 language. See section 9.07(1) and (2).

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

that provides for contributions other than elective deferrals are changed so that the

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requirements of section 9.07(3)(b) apply only to contributions other than elective

deferrals. See section 9.07(3)(b).

(d) The rules for when an Opinion Letter will not be issued with respect to a

Section 403(b) Pre-approved Plan are changed to better match the rules for when an

Opinion Letter will not be issued with respect to a Qualified Pre-approved Plan and to

provide that an Opinion Letter will not be issued for (i) a plan designed to satisfy the

provisions of § 105, (ii) a plan that includes § 401(h) accounts, and (iii) a plan that

includes purported fail-safe provisions for § 401(a)(4) or the average benefit test under

§ 410(b). See section 10.02(1).

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

Plan that applies for a determination letter are updated to better match the Qualified

Pre-approved Plan rules for determination letter applications. See section 25.

SECTION 4.

DEFINITIONS

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

definitions apply to all Pre-approved Plans.

(1) Adopting Employer. The term “Adopting Employer” means an Employer that

adopts a Pre-approved Plan offered by a Provider.

(2) Adoption Agreement Plan. The term “Adoption Agreement Plan” means a

plan that consists of a basic plan document and an adoption agreement. The basic plan

document includes all the non-elective provisions applicable to all Adopting Employers,

and the adoption agreement includes the options that may be selected by each

Adopting Employer. No options (including blanks to be completed) may be provided in

the basic plan document portion of the Adoption Agreement Plan (except as set forth in

section 15.03 regarding Flexible Plans).

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

section 4.01(17).

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

amendment that is not an Interim Amendment.

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

Pre-approved Plan for its employees or an eligible employer, as described in

§ 403(b)(1)(A), that sponsors a Section 403(b) Pre-approved Plan for its employees.

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

the period during which an Adopting Employer must adopt a newly approved Preapproved Plan for a Cycle, and is also generally the period during which an Adopting

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

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determination letter (if otherwise permitted). See section 5.02 regarding the Employer

Adoption Window and section 25 regarding determination letters.

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

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

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

plan within the meaning of § 414(d).

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

to correct a Disqualifying Provision or a Form Defect that results in the failure of a Preapproved Plan to satisfy a Qualification Requirement or Section 403(b) Requirement, as

applicable, by reason of a change in that requirement, or an amendment that is integral

to that Disqualifying Provision or Form Defect. See section 6.04.

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

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

business day, and (b) submits Opinion Letter applications on behalf of 15 unaffiliated

Providers, each of which is offering, on a word-for-word identical basis, the same plan.

A Flexible Plan that is offered by a Provider is considered a plan that is word-for-word

identical. For purposes of determining whether 15 unaffiliated Providers offer, on a

word-for-word identical basis, the same Pre-approved Plan, a Mass Submitter that is

also a Provider is treated as an unaffiliated Provider. For purposes of this definition,

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

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

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

as a Mass Submitter with respect to all of its plans, provided the 15-unaffiliated-Provider

requirement is met with respect to at least one plan. See section 15 for rules relating to

a Mass Submitter’s plans.

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

an otherwise word-for-word identical Pre-approved Plan of the Mass Submitter that the

IRS determines does not require an in-depth IRS technical review. For example, a

change from five-year 100% vesting to three-year 100% vesting is a minor modification

for a defined benefit plan. On the other hand, a change in the method of accrual of

benefits in a defined benefit plan would not be considered a Minor Modification.

(12) Nonstandardized Plan. The term “Nonstandardized Plan” means a Preapproved Plan that is not a Standardized Plan.

(13) Opinion Letter. The term “Opinion Letter” means a written statement issued

by the IRS to a Provider or Mass Submitter that the form of a Qualified Pre-approved

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

the Section 403(b) Requirements, respectively, that are being reviewed by the IRS for

the Cycle for which the Opinion Letter is being issued.

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

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

plan) that has received an Opinion Letter under this revenue procedure (or a

predecessor of this revenue procedure) and that is made available by a Provider for

adoption by Employers. A Pre-approved Plan includes a plan covering self-employed

individuals. A Pre-approved Plan may be either a Qualified Pre-approved Plan or a

Section 403(b) Pre-approved Plan. A Qualified Pre-approved Plan or a Section 403(b)

Pre-approved Plan may be either a Standardized Plan or a Nonstandardized Plan. A

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

as either an Adoption Agreement Plan or a Single Document Plan.

(15) Provider.

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

Submitter) that:

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

accessible during every business day, and

(ii) Represents to the IRS in its application for an Opinion Letter that it has

at least 15 Employer-clients (except as set forth in section 4.01(15)(a)(ii)(A) regarding a

Retirement Income Account), each of which is reasonably expected to adopt one of the

Provider’s Pre-approved Plans.

(A) A person that is otherwise eligible to be a Provider generally may

apply for an Opinion Letter for a Section 403(b) Pre-approved Plan that is intended to

be a Retirement Income Account without satisfying the 15-Employer-client requirement

with respect to that plan. However, if that person also applies for an Opinion Letter with

respect to a Section 403(b) Pre-approved Plan that is not a Retirement Income Account,

the person would need to meet the 15-Employer-client requirement for the plan that is

not a Retirement Income Account.

(B) The IRS reserves the right to request from the Provider at any time

a list of the Employers that have adopted or are expected to adopt the Provider’s plans,

including the Employers’ business addresses and employer identification numbers.

(b) Notwithstanding the preceding provisions of this section 4.01(15), any

person that has an established place of business in the United States where it is

accessible during every business day may offer a plan that is word-for-word identical to

a Mass Submitter’s plan as an identical adopter or a plan that includes Minor

Modifications to a Mass Submitter’s plan as a minor modifier adopter regardless of the

number of Employers that are expected to adopt the plan. See section 15 for rules

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

minor modifier adopters of a Mass Submitter’s plans.

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(c) By submitting an application for an Opinion Letter for a Pre-approved Plan

under this revenue procedure (or by having an application filed on its behalf by a Mass

Submitter as an identical adopter or a minor modifier adopter), a person represents to

the IRS that it is a Provider, and that it agrees to comply with any requirements imposed

on Providers by this revenue procedure. Failure to comply with these requirements may

result in the loss of eligibility to offer Pre-approved Plans and the revocation of Opinion

Letters that have been issued to the Provider.

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

Pre-approved Plan that is a Governmental Plan, the term “Related Employer” means an

employer that is aggregated with the Adopting Employer under § 414(b), (c), (m), and

(o) and the regulations thereunder. For a Section 403(b) Pre-approved Plan that is a

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

aggregated with the Adopting Employer in a manner consistent with Notice 89-23,

1989-1 CB 654.

(17) Remedial Amendment Cycle. The term “Remedial Amendment Cycle”

means the time period designated by the IRS during which (1) a Provider submits a

proposed Pre-approved Plan for review and approval by the IRS, (2) the plan, once

approved, is adopted by Employers, and (3) an Adopting Employer of a newly approved

Pre-approved Plan generally may submit an application for a determination letter (if

otherwise permitted). See section 5.

(18) Remedial Amendment Period. The term “Remedial Amendment Period”

means the period during which an employer maintaining a plan may correct

Disqualifying Provisions or Form Defects, as applicable, in its plan retroactive to the

beginning of that period. As part of the correction of a Disqualifying Provision or a Form

Defect within the applicable Remedial Amendment Period, an Adopting Employer is

considered to have satisfied the Qualification Requirements or Section 403(b)

Requirements, as applicable, if all provisions of the plan that are necessary to satisfy

those requirements have been adopted and made effective in form and operation from

the beginning of the Remedial Amendment Period. See section 6.

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

offered by a Provider that consists of a single plan document without an adoption

agreement. A Single Document Plan may include alternate paragraphs and options that

may be selected by an Adopting Employer (including blanks to be completed by the

Adopting Employer in accordance with specified parameters).

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

Plan that satisfies the requirements set forth in section 9.03 or 9.07, as applicable. A

Qualified Pre-approved Plan that includes an ESOP or that is a Statutory Hybrid Plan

may not be a Standardized Plan.

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

which a Provider (including a Mass Submitter) may apply for an Opinion Letter for a

particular Cycle. See section 5.02; also see section 16 regarding filings made after the

Submission Period.

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

this revenue procedure, the following definitions apply to Qualified Pre-approved Plans

and do not apply to Section 403(b) Pre-approved Plans.

(1) Disqualifying Provision.

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

Provision” means:

(i) A provision of a new plan, the absence of a provision from a new plan,

or an amendment to an existing plan that causes the plan to fail to satisfy the

requirements of the Code applicable to the qualification of the plan as of the date the

plan or amendment is first made effective;

(ii) A plan provision that, pursuant to § 1.401(b)-1(b)(3), has been

designated by the Commissioner, in guidance published in the IRB, as a disqualifying

provision by reason of a change in those requirements; or

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

integral to) a change in the qualification requirements of the Code.

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

the IRS designates a plan provision as a Disqualifying Provision if it:

(i) Results in the failure of the plan to satisfy the qualification

requirements of the Code by reason of a change in those requirements that is effective

after December 31, 2001; or

(ii) Is integral to a Disqualifying Provision described in

section 4.02(1)(b)(i).

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

a Pre-approved Plan that is intended to meet the Qualification Requirements.

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

the requirements of §§ 401(a), 403(a), 409, and 4975(e)(7), including requirements

provided by statute, or in regulations or other guidance published in the IRB. 6

Under this definition, a change in Qualification Requirements includes a change provided by statute, or

in regulations or other guidance published in the IRB, that affects a requirement of § 401(a), 403(a), 409,

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

Document” means the separate portion of a Qualified Pre-approved Plan that includes

the trust agreement or custodial account agreement and includes provisions covering

such matters as the powers and duties of trustees, investment authority, and the kinds

of investments that may be made. All provisions of the Trust or Custodial Account

Document must be applicable to all Adopting Employers of that trust or custodial

account. The trust agreement or custodial account agreement must be in a document

separate from the plan document that is submitted for an Opinion Letter.

(5) Definitions related to ESOPs.

(a) ESOP. The term “ESOP” means an employee stock ownership plan

within the meaning of § 4975(e)(7).

(b) Exempt Loan. The term “Exempt Loan” means a loan described in

§ 4975(d)(3) that satisfies the requirements for exemption from the excise tax imposed

under § 4975(a) and (b) described in § 54.4975-7(b).

(c) Readily Tradable Employer Securities. The term “Readily Tradable

Employer Securities” means publicly traded securities as defined in

§ 1.401(a)(35)-1(f)(5).

(6) Definitions related to Hybrid Plans.

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

statutory hybrid benefit formula, as defined in § 1.411(a)(13)-1(d)(4), that is used to

determine all or any part of a participant’s accumulated benefit, and under which the

accumulated benefit provided under the formula is expressed as the current balance of

a hypothetical account maintained for the participant. The hypothetical account balance

generally consists of Principal Credits and Interest Credits.

(b) Cash Balance Plan. The term “Cash Balance Plan” means a defined

benefit plan that includes a Cash Balance Formula.

(c) Conversion Amendment. The term “Conversion Amendment” means an

amendment defined in § 1.411(b)(5)-1(c)(4). Under this regulation, a conversion

amendment is an amendment (i) that reduces or eliminates the benefits that, but for the

amendment, a participant would have earned after the effective date of the amendment

under a benefit formula that is not a statutory hybrid benefit formula within the meaning

of § 1.411(a)(13)-1(d)(4), and (ii) with respect to which, after the effective date of the

amendment, all or a portion of the participant’s benefit accruals under the plan are

or 4975(e)(7), without regard to whether the change results in a Disqualifying Provision or merely permits

the adoption of a Discretionary Amendment.

15

determined under a statutory hybrid benefit formula.

(d) Interest Credit. The term “Interest Credit” means an interest credit as

defined in § 1.411(b)(5)-1(d)(1)(ii)(A). Under this regulation, an interest credit is an

adjustment to a participant’s hypothetical account balance for a period that is not

conditioned on service and that is determined by applying a rate of interest or rate of

return to the participant’s hypothetical account balance as of the beginning of the

period.

(e) Offset. The term “Offset” means the reduction of benefits under an

Employer’s defined benefit plan by an amount attributable to the benefits payable under

another plan of the Employer.

(f) Principal Credit. The term “Principal Credit” means a principal credit as

defined in § 1.411(b)(5)-1(d)(1)(ii)(D), which includes any increase in a participant’s

hypothetical account balance that is not an Interest Credit.

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

benefit plan that includes a statutory hybrid benefit formula as defined in

§ 1.411(a)(13)-1(d)(4).

(h) Variable Annuity Plan. The term “Variable Annuity Plan” means any

defined benefit plan that includes a variable annuity benefit formula as defined in

§ 1.411(a)(13)-1(d)(6).

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

purposes of this revenue procedure, the following definitions apply to Section 403(b)

Pre-approved Plans, and do not apply to Qualified Pre-approved Plans:

(1) Church. The term “Church” means a church within the meaning of

§ 3121(w)(3)(A).

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

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

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

satisfy the Section 403(b) Requirements applicable as of the date the plan or

amendment is first made effective;

(b) A plan provision that:

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

Section 403(b) Requirements by reason of a change in those requirements; or

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

16

(c) The absence from a plan of a provision required by (or, if applicable,

integral to) a change in the Section 403(b) Requirements.

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

funding arrangement under a Section 403(b) Pre-approved Plan. An Investment

Arrangement may be an annuity contract under § 1.403(b)-2(b)(2), a custodial account

under § 403(b)(7), or a Retirement Income Account.

(4) Non-qualified Church-Controlled Organization or Non-QCCO. The term “Nonqualified Church-Controlled Organization” or “Non-QCCO” means a church-controlled

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

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

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

organization described in § 501(c)(3) that is a qualified church-controlled organization

within the meaning of § 3121(w)(3)(B).

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

a defined contribution program established or maintained by a Church, including an

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

employee described in § 403(b)(1) (including an employee described in § 414(e)(3)(B))

or his or her beneficiaries, as described in § 403(b)(9).

(7) Section 403(b) Pre-approved Plan. The term “Section 403(b) Pre-approved

Plan” means a Pre-approved Plan that is intended to meet the Section 403(b)

Requirements.

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

means the requirements of § 403(b), including requirements provided in the Code, or in

regulations or other guidance published in the IRB. 7

PART II.

REMEDIAL AMENDMENT CYCLES AND REMEDIAL AMENDMENT

PERIODS

SECTION 5.

REMEDIAL AMENDMENT CYCLE SYSTEM

.01 Remedial Amendment Cycles. Under this revenue procedure, every Preapproved Plan has a recurring Remedial Amendment Cycle. Providers may apply for

new Opinion Letters for each Cycle. Adopting Employers of Pre-approved Plans, if

otherwise eligible under section 25, may apply for determination letters once each

Under this definition, a change in Section 403(b) Requirements includes a statutory, regulatory, or other

guidance change that affects a requirement of § 403(b), without regard to whether the change results in a

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

7

17

Cycle. Defined contribution Qualified Pre-approved Plans, defined benefit Qualified Preapproved Plans, and Section 403(b) Pre-approved Plans each have different Cycles.

While the same Cycle applies with respect to all defined contribution Qualified Preapproved Plans, separate Cycles apply with respect to all defined benefit Qualified Preapproved Plans and with respect to all Section 403(b) Pre-approved Plans.

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

for an Opinion Letter during the Submission Period, which generally begins at or shortly

after the beginning of each Cycle. When the IRS’s review of the Pre-approved Plans

that are submitted during a Cycle is near completion, the IRS will announce the

Employer Adoption Window for that Cycle, during which an Adopting Employer must

adopt a newly approved Pre-approved Plan for that Cycle in order to continue to have a

Pre-approved Plan. The Employer Adoption Window is also generally the period during

which an Adopting Employer of a newly approved Pre-approved Plan may submit for a

determination letter, if applicable, pursuant to section 25. 8 The deadline to adopt a

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

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

virtually all Employers approximately two years to adopt a newly approved Preapproved Plan and file for a determination letter, if applicable. A Cycle ends at the end

of the last day of the Employer Adoption Window for that Cycle. The next Cycle begins

on the following day.

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

Plans. Pursuant to this revenue procedure, the Submission Period for a Provider of a

defined contribution Qualified Pre-approved Plan to apply for a Cycle 4 Opinion Letter

begins on February 1, 2024, and ends on January 31, 2025. A Provider of a defined

contribution Qualified Pre-approved Plan may still apply for a Cycle 4 Opinion Letter

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

Period.

SECTION 6.

REMEDIAL AMENDMENT PERIODS

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

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

Qualified Pre-approved Plan that does not satisfy a Qualification Requirement or a

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

on any day solely as a result of a Disqualifying Provision or Form Defect, as applicable,

is considered to have satisfied the Qualification Requirement or Section 403(b)

Requirement on that date if, on or before the last day of the Remedial Amendment

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

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

Requirement, as applicable, have been adopted and made effective in form and

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

Employer Adoption Window.

8

18

operation for the whole of the period. A Pre-approved Plan for which an Adopting

Employer does not correct a Disqualifying Provision or Form Defect within the

applicable Remedial Amendment Period is not considered to satisfy the Qualification

Requirements or Section 403(b) Requirements, as applicable.

.02 Beginning dates of the Remedial Amendment Period.

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

is specified by the Commissioner in guidance published in the IRB, the Remedial

Amendment Period for a Disqualifying Provision begins:

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

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

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

an existing plan (other than a Disqualifying Provision that is related to a change in

Qualification Requirements, or that is integral to such a change, as described in

section 4.02(1)(b)), on the date the plan amendment is adopted or put into effect,

whichever is earlier;

(c) In the case of a Disqualifying Provision with respect to a provision that

fails to satisfy the Qualification Requirements by reason of a change in those

requirements, on the date on which the change effected by an amendment to the Code

or a change in requirements provided in regulations or other guidance published in the

IRB became effective with respect to the plan; or

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

integral to a Qualification Requirement that has been changed, on the first day on which

the plan was operated in accordance with such provision, as amended.

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

guidance published in the IRB, the Remedial Amendment Period for a Form Defect

begins:

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

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

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

plan (other than a Form Defect that is related to a change in Section 403(b)

Requirements, or that is integral to such a change, as described in section 4.03(2)(b)),

on the date the plan amendment is adopted or put into effect, whichever is earlier;

(c) In the case of a Form Defect with respect to a provision that fails to satisfy

the Section 403(b) Requirements by reason of a change in those requirements, on the

date on which the change effected by an amendment to the Code or a change in

19

requirements provided in regulations or other guidance published in the IRB became

effective with respect to the plan; or

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

a Section 403(b) Requirement that has been changed, on the first day on which the plan

was operated in accordance with such provision, as amended.

.03 Expiration of the Remedial Amendment Period.

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

and except as otherwise provided in section 6.03(2), by statute, or in regulations or

other guidance published in the IRB, the Remedial Amendment Period for a

Disqualifying Provision or a Form Defect, as applicable, expires at the later of (a) the

end of the Cycle that includes the date on which the Remedial Amendment Period

would have ended if the plan were an individually designed plan, 9 or (b) the end of the

first Cycle in which an application for an Opinion Letter that considers the Disqualifying

Provision or Form Defect may be submitted. This Remedial Amendment Period applies

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

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

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

adopted timely and in good faith with the intent of complying with the Qualification

Requirements or Section 403(b) Requirements, as applicable. The IRS will make the

final determination in all cases as to whether a new plan or an amendment to an

existing plan was adopted with the good faith intention of complying with the

Qualification Requirements or Section 403(b) Requirements, as applicable. If an Interim

Amendment is not made timely, then the Remedial Amendment Period for the

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

Interim Amendment deadline set forth in section 7.

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

Discretionary Amendment made by an Adopting Employer (not by the Provider), the

Remedial Amendment Period for a Disqualifying Provision or a Form Defect, as

applicable, arising from that Discretionary Amendment expires at the end of the Cycle

that includes the date on which the Remedial Amendment Period would have ended if

the plan were an individually designed plan.

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

change in Qualification Requirements or Section 403(b) Requirements that affects

provisions of a written plan document, a Provider (or Adopting Employer, if applicable)

of a Pre-approved Plan must adopt an Interim Amendment with respect to the change

within the time period set forth in section 7, unless the Provider (or Adopting Employer,

For the Remedial Amendment Period rules for individually designed qualified and § 403(b) plans, see

Rev. Proc. 2022-40.

9

20

if applicable) reasonably and in good faith determines that no amendment is required. 10

The IRS will make the final determination in all cases as to whether the determination

that no Interim Amendment was required is reasonable and in good faith. If an Interim

Amendment is not adopted by the end of the time period set forth in section 7, the

Provider (or Adopting Employer, if applicable) must correct this failure to timely adopt

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

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

designed plan at the end of that two-year period. See section 13.05 for a Pre-approved

Plan treated as individually designed. 11

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

termination of a Pre-approved Plan ends the Remedial Amendment Period for each

Disqualifying Provision or Form Defect of the plan and, thus, generally will shorten the

Remedial Amendment Period. Accordingly, any retroactive remedial plan amendments

or other required plan amendments for a terminating plan (that is, plan amendments

required to be adopted to reflect Qualification Requirements or Section 403(b)

Requirements that apply as of the date of termination) must be adopted in connection

with the plan termination regardless of whether such requirements are included on a

Cumulative List described in section 17, Operational Compliance List described in

section 14.09, or Required Amendments List described in Rev. Proc. 2022-40. 12

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

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

amend a plan retroactively during a Remedial Amendment Period so that all provisions

of the plan that are necessary to satisfy Qualification Requirements or Section 403(b)

Requirements related to the Disqualifying Provision or Form Defect, as applicable, are

made effective in operation for the whole Remedial Amendment Period, then the

Disqualifying Provision or Form Defect may not be corrected retroactively in order for

the form of the plan to satisfy the Qualification Requirements or Section 403(b)

Requirements, as applicable, even if the Adopting Employer adopts a retroactive plan

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

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

applicable Remedial Amendment Period may be able to correct the Disqualifying

10

See section 14.09 regarding the Operational Compliance List, which identifies changes to Qualification

Requirements or Section 403(b) Requirements that are effective during a calendar year.

11

During the two-year period, the plan will not cease to be a Pre-approved Plan solely because it has

failed to adopt the Interim Amendment. Once a plan is treated as an individually designed plan, the plan

will be subject to the remedial amendment period rules applicable to individually designed plans and

therefore will have a failure to satisfy the Qualification Requirements or Section 403(b) Requirements for

failing to have adopted the Interim Amendment (and must use EPCRS to correct that failure in order to

adopt a Pre-approved Plan again).

12

The Required Amendments List establishes the end of the Remedial Amendment Period and the plan

amendment deadline for changes in qualification requirements and § 403(b) requirements set forth on the

list for qualified individually designed plans and § 403(b) individually designed plans, respectively. The

Required Amendments Lists can be found at https://www.irs.gov/retirement-plans/required-amendmentslist.

21

Provision or Form Defect under EPCRS. See Rev. Proc. 2021-30, 2021-31 IRB 172 (or

its successor).

SECTION 7.

PLAN AMENDMENT DEADLINES

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

deadline for the timely adoption of an amendment for a Pre-approved Plan is

determined as follows.

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

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

Governmental Plan, a Provider (or the Adopting Employer, if applicable) adopts an

Interim Amendment timely if the plan amendment is adopted by the last day of the

second calendar year that begins after the issuance of the Required Amendments List

(described in Rev. Proc. 2022-40) in which the change in Qualification Requirements or

Section 403(b) Requirements appears.

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

Governmental Plan, in the case of a Discretionary Amendment, an Adopting Employer

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

adopts the plan amendment by the end of the plan year in which the plan amendment is

operationally put into effect. An amendment is operationally put into effect when the

plan is administered in a manner consistent with the intended plan amendment (rather

than existing plan terms). For example, the deadline for adopting a Discretionary

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

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

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

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

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

amendment timely if the plan amendment is adopted by the later of:

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

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

change in Qualification Requirements or Section 403(b) Requirements appears; or

(ii) To the extent any action is required to be taken by the Adopting

Employer in order to adopt the Interim Amendment, 90 days after the close of the third

regular legislative session of the legislative body with the authority to amend the plan

that begins on or after the date the plan amendment becomes effective.

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

Discretionary Amendment, an Adopting Employer (or a Provider, if applicable) adopts

22

the plan amendment timely if the Adopting Employer adopts the plan amendment by the

later of:

(i) The end of the plan year in which the plan amendment is operationally

put into effect; or

(ii) To the extent any action is required to be taken by the Adopting

Employer in order to adopt the Discretionary Amendment, 90 days after the close of the

second regular legislative session of the legislative body with authority to amend the

plan that begins on or after the date the amendment becomes effective.

.02 Exceptions to section 7.01 plan amendment deadlines. Section 7.01 applies

unless (1) a statutory provision, or regulations or other guidance published in the IRB,

sets forth a deadline to timely adopt a Discretionary Amendment with respect to a plan

year that is different from the deadlines under section 7.01, or (2) a statutory provision,

or regulations or other guidance published in the IRB, sets forth a deadline to timely

adopt a particular type of Interim Amendment that is different from the deadlines under

section 7.01.

SECTION 8.

SCHEDULES FOR REMEDIAL AMENDMENT CYCLES

The schedules for Pre-approved Plan Cycles are available at

https://www.irs.gov/retirement-plans/determination-opinion-and-advisory-letters-6-yearcycle-for-pre-approved-plans-plans. The IRS may revise the schedules to respond to

changing circumstances and the needs of Adopting Employers, as necessary. The IRS

will announce any such revisions and the timing of the Submission Period for each

Cycle, which will be reflected in guidance published in the IRB (either in a revenue

procedure, an announcement, or in the applicable Cumulative List (which will be issued

prior to a Submission Period)).

PART III.

PROCEDURES FOR A PROVIDER APPLYING FOR AN OPINION

LETTER

SECTION 9.

PROVISIONS REQUIRED IN PRE-APPROVED PLANS

.01 Provisions required in Pre-approved Plans.

(1) Provisions required in Qualified Pre-approved Plans. Each Qualified Preapproved Plan must comply with the requirements set forth in section 9.02. Section 9.03

sets forth additional provisions required for a Qualified Pre-approved Plan that is a

Standardized Plan. Section 9.04 sets forth additional provisions required for a Qualified

Pre-approved Plan that includes an ESOP. Section 9.05 sets forth additional provisions

required in a Qualified Pre-approved Plan that includes a Cash Balance Formula.

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

23

Section 403(b) Pre-approved Plan must comply with the requirements set forth in

section 9.06. Section 9.07 sets forth additional provisions required for a Section 403(b)

Pre-approved Plan that is a Standardized Plan. Section 9.08 sets forth additional

provisions for a Section 403(b) Pre-approved Plan that is a Retirement Income Account.

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

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

procedure for amendments by the Provider, so that a Provider may modify the plan to

reflect changes provided by statute, or in regulations or other guidance published in the

IRB, and so that any correction of the plan may be applied to all Adopting Employers.

The procedure for amendments by the Provider also must state that, for purposes of the

Pre-approved Plan program, the Provider will no longer have the authority to amend the

plan on behalf of the Adopting Employer as of the date the plan is treated as an

individually designed plan pursuant to section 13.05.

(2) Anti-cutback and vesting schedule change provision. Each Qualified Preapproved Plan must specifically provide for the protection required under § 411(a)(10)

and (d)(6) in the event that the Adopting Employer amends the plan (including by

revising the options selected in the adoption agreement or adopting a new plan). A plan

may not be amended in a manner that could result in the elimination of a benefit to the

extent the benefit is required to be protected under § 411(d)(6) with respect to the plan

of any Adopting Employer, unless the amendment is permitted under § 1.401(a)-4 and

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

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

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

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

Pre-approved Plan must provide that plan provisions may be amended by the Adopting

Employer to the extent necessary to satisfy § 415 or 416 because of the required

aggregation of multiple plans under these sections. Generally, a space should be

reserved in the plan with instructions for the Adopting Employer to add such language

as necessary to satisfy §§ 415 and 416, if applicable. In addition, a space must be

provided in the plan for the Adopting Employer to specify the interest rate and mortality

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

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

included in both defined contribution plans and defined benefit plans. These provisions

must be included in the adoption agreement of an Adoption Agreement Plan.

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

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

all of an Adopting Employer’s defined benefit plans as necessary to satisfy § 415(b) and

(c) (each as modified by § 415(h)), and § 415(f).

(5) Top-heavy requirements. Each Qualified Pre-approved Plan must either

24

provide that all of the additional requirements applicable to top-heavy plans (described

in § 416) apply at all times, or provide that such requirements apply automatically if the

plan is top-heavy, regardless of how the options in the plan are completed. In the latter

case, all of the requirements for determining whether the plan is top-heavy must be

included in the plan. (See Questions T-35 and T-36 of § 1.416-1.) In addition, a plan

that is subject to the top-heavy requirements and that does not include vesting rules for

all years that are at least as favorable to participants as those set forth in § 416(b) must

specifically provide that any vesting that occurs while the plan is top-heavy will not be

reduced if the plan ceases to be top-heavy.

(6) Provision regarding reliance. Each Qualified Pre-approved Plan must

include, in close proximity to the signature line, a statement that describes the

limitations on Adopting Employer reliance on an Opinion Letter. See section 12.

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

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

plan document override any conflicting provision included in Trust or Custodial Account

Documents used with the plan. 13

(8) Dated signatures and adoption agreement provisions. Each Qualified Preapproved Plan must include an Adopting Employer signature and date line. The plan

also must include a statement that the Provider will inform the Adopting Employer of any

amendments made to the plan or of the discontinuance of the plan. The Adopting

Employer must sign and date the adoption agreement or signature page of the plan

when it first adopts the plan and must complete, sign, and date a new adoption

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

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

Adopting Employer modifies any prior elections or makes new elections. The signature

requirement may be satisfied by an electronic signature that reliably authenticates and

verifies the adoption of the adoption agreement or single plan document, or the

restatement, amendment, or modification thereof, by the Adopting Employer. In the

case of an Adoption Agreement Plan, the adoption agreement must state that it is to be

used with only one basic plan document and must identify that document. In addition,

the adoption agreement must include a cautionary statement to the effect that the failure

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

to meet the Qualification Requirements.

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

the Provider’s name, address, and telephone number (or a space for the address and

telephone number of the Provider’s authorized representative) for inquiries by Adopting

Accordingly, if a plan is operated in a manner that is inconsistent with a provision of the single plan

document or basic plan document, the plan will incur an operational failure even if the plan is operated in

a manner consistent with a provision of a Trust or Custodial Account Document that conflicts with the

provision of the single plan document or basic plan document.

13

25

Employers regarding the adoption of the plan, the meaning of plan provisions, or the

effect of the Opinion Letter. Each Qualified Pre-approved Plan may provide additional

contact information (such as an email address).

(10) Definition of employee

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

as any employee of the Adopting Employer maintaining the plan or of any Related

Employer. The definition of employee also must include any individual treated under

§ 414(n) or (o) as an employee of any Employer described in the preceding sentence.

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

ESOP, employees who meet the definition of employee in section 9.02(10)(a) may not

participate in the ESOP unless they are employed by the corporation that issues the

stock held by the ESOP or by any corporation that is a member of the same controlled

group of corporations (within the meaning of § 1563(a), as modified by § 409(l)(4)(B)

and (C) and as determined without regard to § 1563(a)(4) and (e)(3)(C)). For all other

purposes under the ESOP, including nondiscrimination and coverage, employees who

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

(11) Crediting of service taking into account § 414(b), (c), (m), (n), and (o). Each

Qualified Pre-approved Plan must credit all service with any Related Employer as

service with the Adopting Employer maintaining the plan. In addition, in the case of an

individual treated under § 414(n) or (o) as an employee of any Employer described in

the previous sentence, service with that Employer must be credited to such individual.

(12) Uniformed Services Employment and Reemployment Rights Act and

§ 414(u). Each Qualified Pre-approved Plan must include a provision reflecting the

requirements of § 414(u). See Rev. Proc. 96-49, 1996-2 CB 369.

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

plan and that is not a Governmental Plan must have a normal retirement age that is not

less than age 55.

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

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

Standardized Plan must meet the following requirements:

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

participation, the plan by its terms must benefit all employees (regardless of whether

any Employer is treated as operating separate lines of business under § 414(r)) except

those employees that may be excluded under § 410(a)(1) or (b)(3). The plan may

provide options as to whether some or all of the employees described in § 410(a)(1) or

(b)(3) are excluded, provided that the criteria for excluding employees described in

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

26

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

because the employee is not an active employee on the last day of the plan year or has

failed to complete a specified number of hours of service during the year. However, the

plan may deny an allocation or accrual to an employee who is eligible to participate if

the employee terminates service during the plan year with not more than 500 hours of

service and is not an active employee on the last day of the plan year. A Qualified Preapproved Plan will not fail to satisfy the requirements of this section 9.03(1) merely

because the plan provides, either as the result of an elective provision or by default in

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

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

§ 410(b)(6)(C) are excluded from eligibility to participate in the plan during the period

beginning on the date of the transaction and ending on a date that is not later than the

earlier of the last day of the first plan year beginning after the date of the transaction or

the date of a significant change in the plan or in the coverage of the plan. A transaction

described in § 410(b)(6)(C) is an asset or stock acquisition, merger, or other similar

transaction involving a change in the employer of the employees of a trade or business.

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

eligibility requirements under the plan are not more favorable for highly compensated

employees (as defined in § 414(q)) than for other employees.

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

allocations, in the case of a defined contribution plan (other than any cash or deferred

arrangement portion), or benefits, in the case of a defined benefit plan, are determined

on the basis of total compensation. The plan must provide that, for purposes of

allocation, the definition of total compensation is “participant’s compensation” within the

meaning of § 415(c)(3), or compensation that otherwise satisfies § 414(s) and

§ 1.414(s)-1(c).

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

§ 401(k) and/or 401(m) plan, the plan must satisfy, by its terms, one of the designbased safe harbors described in § 1.401(a)(4)-2(b)(2) (taking into account

§ 1.401(a)(4)-2(b)(4)) or § 1.401(a)(4)-3(b)(3), (4), or (5) (taking into account

§ 1.401(a)(4)-3(b)(6)).

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

rights, and features under the plan (other than those, if any, that have been

prospectively eliminated) are currently available to all employees benefiting under the

plan. (For information regarding benefits, rights, and features and the determination of

current availability, see § 1.401(a)(4)-4.)

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

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

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

27

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

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

ESOP. Each Qualified Pre-approved Plan that includes an ESOP feature must include

the following provisions:

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

ownership plan within the meaning of § 4975(e)(7) and is designed to invest primarily in

employer stock;

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

accordance with § 409(l)(1) or (2);

(3) Diversification. Provisions that meet the diversification requirements of

§ 401(a)(28)(B) or, if applicable, § 401(a)(35);

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

meet the valuation, independent appraiser, and allocation of earnings requirements set

forth in § 401(a)(28)(C), § 54.4975-11(d)(5), and Rev. Rul. 80-155, 1980-1 CB 84;

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

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

and put-option requirements of § 409(h), to the extent applicable;

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

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

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

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

requirements described in § 1.415(c)-1(f) and, if the ESOP is maintained by an

employer that is a C corporation (as defined in § 1361(a)(2)), the requirements

described in § 415(c)(6);

(10) Forfeitures. If an ESOP provides for forfeitures, provisions that meet the

forfeiture requirement of § 54.4975-11(d)(4);

(11) S corporation employer securities. If an ESOP holds employer securities

consisting of stock in an S corporation (as defined in § 1361(a)(1)), provisions that meet

the requirements of § 409(p) and § 1.409(p)-1;

(12) C corporation employers. If an ESOP is maintained by employers that are C

corporations, provisions that meet the requirements of § 409(n); and

28

(13) Identification as C or S corporation. Provisions (in the plan document or

adoption agreement) that identify the Adopting Employer as either a C corporation or an

S corporation.

(14) Definition of employee. See section 9.02(10)(b).

.05 Additional provisions required in a Qualified Pre-approved Plan that includes a

Cash Balance Plan

(1) Prior benefit structures protected. All Cash Balance Plans must ensure

compliance with the anti-cutback provisions of § 411(d)(6). To receive an Opinion Letter

under this revenue procedure, a Cash Balance Plan must provide that, at all times, any

benefits accrued prior to the Adopting Employer’s adoption of the Pre-approved Plan

(and other benefits protected under § 411(d)(6)(B)) are protected. A Cash Balance Plan

that was the subject of a Conversion Amendment must comply with the provisions of

§ 411(b)(5)(B)(iii) and § 1.411(b)(5)-1(c). However, an Opinion Letter will not be issued

for a plan that uses an opening hypothetical account balance as described in

§ 1.411(b)(5)-1(c)(3) to meet the requirements of § 1.411(b)(5)-1(c).

(2) Step-rate structure of Principal Credits. Cash Balance Plans that include any

structure of Principal Credits that increase with age, service, or any other measure

during a participant’s employment must be definitely determinable, operationally

nondiscriminatory, and at all times in compliance with the “133 1/3 percent rule” of

§ 411(b)(1)(B) and the regulations thereunder. Employers may not rely on the Opinion

Letter with respect to the requirements of § 411(b)(1) for increasing Principal Credit

schedules that are created by Adopting Employers by completing blanks in the plan

formula, but may rely on the Opinion Letter with respect to the requirements of

§ 411(b)(1) for increasing Principal Credit schedules specified in the Pre-approved Plan

document.

.06 Provisions required in a Section 403(b) Pre-approved Plan.

(1) Provider amendments. Each Section 403(b) Pre-approved Plan must include

a procedure for amendments by the Provider, so that changes in the Code, or in

regulations or other guidance published in the IRB, and any correction of the plan may

be applied to all Adopting Employers. The procedure for amendments by the Provider

also must state that, for purposes of the Pre-approved Plan program, the Provider will

no longer have the authority to amend the plan on behalf of the Adopting Employer as

of the date the plan is treated as an individually designed plan pursuant to

section 13.05.

(2) Adopting Employer modification to satisfy § 415. Each Section 403(b) Preapproved 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 these sections. Generally, a space should be reserved in the

29

plan with instructions for the Adopting Employer to add such language as necessary to

satisfy § 415. These provisions must be included in the adoption agreement of an

Adoption Agreement Plan.

(3) Aggregation for § 415 compliance. Each Section 403(b) Pre-approved Plan

must provide for aggregation of all of an Adopting Employer’s defined contribution plans

as necessary to satisfy § 415(c) (as modified by § 415(h)), (f), and (k)(4).

(4) Provision regarding reliance. Each Section 403(b) Pre-approved Plan must

include, in close proximity to the signature line, a statement that describes the

limitations on Adopting Employer reliance on an Opinion Letter. See section 12.

(5) Provision regarding conflicting provisions in Investment Arrangements or

other documents. Each Section 403(b) Pre-approved Plan must provide that, in the

event of any conflict between the terms of the single plan document or the basic plan

document and adoption agreement, as applicable, and the terms of Investment

Arrangements under the plan (or of any other documents incorporated by reference into

the plan), the terms of the single plan document or the basic plan document and

adoption agreement, as applicable, will govern. See section 12.03(5) for the effect on

reliance in the event of a conflict. An Employer that adopts a Section 403(b) Preapproved Plan should take this requirement into account in considering Investment

Arrangements to be offered under the plan, as well as other documents that may be

incorporated by reference. Since the terms of Investment Arrangements under a

Section 403(b) Pre-approved Plan must be incorporated by reference into the plan and

those arrangements may not have any provisions that are inconsistent with § 403(b),

plan terms that are required in a single plan document or the basic plan document and

adoption agreement, as applicable, under this section 9 should not create a conflict with

the terms of the Investment Arrangements under a properly drafted Section 403(b) Preapproved Plan. If there nevertheless is a conflict, the terms of the single plan document

or the basic plan document and adoption agreement, as applicable, must control. 14

(6) Dated signatures and adoption agreement provisions. Each Section 403(b)

Pre-approved Plan must include an Adopting Employer signature and date line. The

plan also must include a statement that the Provider will inform the Adopting Employer

of any amendments made to the plan or of the discontinuance of the plan. The Adopting

Employer must sign and date the adoption agreement or signature page of the plan

when it first adopts the plan and must complete, sign, and date a new adoption

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

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

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

Accordingly, if a plan is operated in a manner that is inconsistent with a provision of the single plan

document or basic plan document, the plan will incur an operational failure even if the plan is operated in

a manner consistent with a provision of a Trust or Custodial Account Document that conflicts with the

provision of the single plan document or basic plan document.

14

30

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

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

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

Plan, the adoption agreement must state that it is to be used with only one basic plan

document and must identify that document. In addition, the adoption agreement must

include a cautionary statement to the effect that the failure to properly complete the

adoption agreement may result in failure of the form of the plan to meet the

Section 403(b) Requirements.

(7) Provider contact information. Each Section 403(b) Pre-approved Plan must

include the Provider’s name, address, and telephone number (or a space for the

address and telephone number of the Provider’s authorized representative) for inquiries

by Adopting Employers regarding the adoption of the plan, the meaning of plan

provisions, or the effect of the Opinion Letter. Each Section 403(b) Pre-approved Plan

may provide additional contact information (such as an email address).

(8) Definition of employee. Each Section 403(b) Pre-approved Plan must define

an employee as any employee of the Adopting Employer maintaining the plan or any

other Related Employer.

(9) Crediting of service taking into account § 414(b), (c), (m), and (o). Each

Section 403(b) Pre-approved Plan must credit all service with any Related Employer as

service with the Adopting Employer maintaining the plan.

(10) Uniformed Services Employment and Reemployment Rights Act and

§ 414(u). Each Section 403(b) Pre-approved Plan must include a provision reflecting the

requirements of § 414(u). See Rev. Proc. 96-49.

(11) Inclusion of Investment Arrangements. A Section 403(b) Pre-approved Plan

includes the Investment Arrangements under the plan in addition to the single plan

document or the basic plan document and adoption agreement. Every Section 403(b)

Pre-approved Plan must therefore incorporate by reference the terms of the Investment

Arrangements under the plan. While the IRS’s review of an application for an Opinion

Letter is limited to the terms of the single plan document or the basic plan document

and adoption agreement, as applicable, the terms of Investment Arrangements and

other documents that are incorporated by reference in the plan must satisfy applicable

law and may not have any provisions that are inconsistent with the Section 403(b)

Requirements. For example, if the forms of annuity benefit available under a plan are

described in the Investment Arrangements under the plan, the terms of the Investment

Arrangements must satisfy, if applicable to the plan, the joint and survivor annuity

requirements of section 205 of the Employee Retirement Income Security Act of 1974

(ERISA), Pub. L. 93-406, 88 Stat. 82954, and any applicable related rules, such as rules

relating to transfers of benefits that are subject to the joint and survivor annuity

requirement, and may not have any provisions that are inconsistent with the Section

403(b) Requirements.

31

(12) Plan must satisfy Section 403(b) Requirements independent of Investment

Arrangements. The IRS’s review of a Section 403(b) Pre-approved Plan will consider

only the terms of the single plan document or the basic plan document and adoption

agreement, as applicable. Accordingly, the provisions described in this section 9.06

(and sections 9.07 and 9.08, if applicable) must be included in the single plan document

or the basic plan document or adoption agreement, as appropriate, of every

Section 403(b) Pre-approved Plan, regardless of the terms of any Investment

Arrangements under the plan or any other documents that may be incorporated by

reference. This does not preclude the adoption of a Section 403(b) Pre-approved Plan

(including a Standardized Plan) if different Investment Arrangements under a plan have

different features or prevent the inclusion of additional provisions in the terms of the

Investment Arrangements under the plan or other documents incorporated by reference.

It also does not prevent a Section 403(b) Pre-approved Plan from using Investment

Arrangements that are more restrictive than required by § 403(b) or the single plan

document or the basic plan document and adoption agreement. However, the terms of

the single plan document or the basic plan document and adoption agreement, as

applicable, must satisfy the requirements of applicable law and this section 9.06 (and

sections 9.07 and 9.08, if applicable) independent of any Investment Arrangements

under the plan or any other documents incorporated by reference. For example, an

Adopting Employer’s Adoption Agreement Plan may offer both Investment

Arrangements that permit loans and Investment Arrangements that do not permit loans.

In this case, (1) the basic plan document must include provisions reflecting the

Section 403(b) Requirements, including §§ 1.403(b)-6 and 1.72(p)-1, and (2) the basic

plan document and adoption agreement, as completed by the Adopting Employer, must

provide that, to the extent permitted by the terms governing the applicable Investment

Arrangement, participant loans are available. Similarly, for example, if an Adopting

Employer’s Single Document Plan offers both Investment Arrangements that permit

loans and Investment Arrangements that do not permit loans, then the single plan

document must include provisions reflecting the Section 403(b) Requirements, including

§§ 1.403(b)-6 and 1.72(p)-1, and must provide that, to the extent permitted by the terms

governing the applicable Investment Arrangement, participant loans are available.

(13) Vesting. A Section 403(b) Pre-approved Plan may provide a vesting

schedule for contributions other than elective deferrals, rather than provide for full and

immediate vesting of the contributions. Except in the case of certain Nonstandardized

Plans described in this section 9.06(13), contributions other than elective deferrals (and

earnings thereon) under a Section 403(b) Pre-approved Plan must vest at least as

rapidly as would be required to satisfy the minimum vesting requirements of

§ 411(a)(2)(B) applicable to a qualified plan under § 401(a), even if the plan is not

subject to the parallel minimum vesting requirements under section 203 of ERISA. A

Nonstandardized Plan that is designed to be used for a plan that is not subject to the

minimum vesting requirements of section 203 of ERISA (for example, a Governmental

Plan) is not required to provide that contributions other than elective deferrals will vest

at least as rapidly as would be required to satisfy § 411(a)(2)(B). Every Section 403(b)

32

Pre-approved Plan that provides a vesting schedule for contributions other than elective

deferrals must also satisfy the following requirements: (1) the portion of a participant’s

interest in the plan that is not vested must be maintained in a separate account for the

participant that is treated as a separate contract to which § 403(c) (or, in case of a

custodial account, § 401(a)) applies, (2) as amounts in the participant’s separate

account become nonforfeitable, they must be removed from the separate account and

treated as amounts held under a § 403(b) plan, to the extent permitted under

§ 1.403(b)-3(d)(2)(ii), and (3) all nonvested amounts remaining in the participant’s

separate account must become nonforfeitable upon termination of the plan.

(14) Appendix of administrative responsibilities. Every Section 403(b) Preapproved Plan must include an appendix to the plan that will be used to identify the

parties responsible for the various administrative functions under the plan that are

necessary to comply with the Section 403(b) Requirements and other tax requirements,

including the requirements that apply on the basis of the aggregated Investment

Arrangements issued to a participant under the plan, and will list all the vendors of

Investment Arrangements approved for use under the plan. Changes to the information

in the required appendix will not affect the Adopting Employer’s ability to rely on an

Opinion Letter.

(15) Identifying category of Employer and plan. The adoption agreement or

single plan document of every Section 403(b) Pre-approved Plan must satisfy the

following requirements:

(a) Although a single adoption agreement may be made available to different

categories of Employers, the adoption agreement must require the Adopting Employer

to show its status as an Employer eligible to maintain a § 403(b) plan by indicating

whether the Adopting Employer is:

(i) A government-sponsored educational organization described in

§ 170(b)(1)(A)(ii) (a public school);

(ii) A tax-exempt organization described in § 501(c)(3) that is exempt from

tax under § 501(a);

(iii) An employer of a minister described in § 414(e)(5)(A); or

(iv) A minister described in § 414(e)(5)(A).

(b) The adoption agreement or single plan document must require the

Adopting Employer to show its status with respect to the nondiscrimination requirements

in § 1.403(b)-5 by indicating whether the plan is:

(i) A Governmental Plan;

33

(ii) A plan of an Adopting Employer that is a Church or QCCO for

employees of the Church or QCCO; or

(iii) A plan not described in (i) or (ii) of this section 9.06(15)(b).

(16) Separate Section 403(b) Pre-approved Plan for Retirement Income

Account. A single Section 403(b) Pre-approved Plan may not be used for both a

Section 403(b) Pre-approved Plan that is a Retirement Income Account and a Section

403(b) Pre-approved Plan that is not a Retirement Income Account. Thus, if a Provider

also has a Section 403(b) Pre-approved Plan that is not a Retirement Income Account,

a separate Section 403(b) Pre-approved Plan is required for a plan that is intended to

constitute a Retirement Income Account.

.07 Additional provisions required in a Section 403(b) Pre-approved Plan that is

intended to be a Standardized Plan. Each Section 403(b) Pre-approved Plan that is

intended to be a Standardized Plan must meet the following requirements:

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

distribution satisfies the safe harbor standards in the regulations under § 401(k).

(2) Section 415 treatment of § 403(b) annuity contracts. Under § 1.415(f)-1(a)(3),

all § 403(b) annuity contracts purchased by an Employer for a participant are treated as

one § 403(b) annuity contract for purposes of § 415. Section 1.415(f)-1(f)(2) includes a

special rule providing that, if a participant on whose behalf a § 403(b) annuity contract is

purchased is in control of any employer for a limitation year, then the § 403(b) annuity

contract is aggregated with all other defined contribution plans maintained by that

employer. For these purposes, a custodial account and a Retirement Income Account

are each treated as a § 403(b) annuity contract. Every Section 403(b) Pre-approved

Plan that is intended to be a Standardized Plan must include plan language reflecting

these rules. In particular, the plan language must coordinate the application of the § 415

limits to all the Standardized Plans of the Adopting Employer and its Related Employers

so that, if the only § 403(b) plans maintained by the Adopting Employer and its Related

Employers are Standardized Plans, then the plans will satisfy § 415(c) and

§ 1.415(f)-1(a)(3) without requiring the addition of overriding plan language.

(3) Elective deferrals only or additional requirements for contributions that are

not elective deferrals. A Section 403(b) Pre-approved Plan that is intended to be a

Standardized Plan must provide either:—

(a) That the only contributions that an Adopting Employer may elect to

provide under the plan are elective deferrals, or

(b) With respect to any contributions other than elective deferrals, the plan

must satisfy all of the following requirements:

34

(i) Plan benefits all employees. Under the provisions governing eligibility

and participation, the plan by its terms must benefit all employees except those

employees that may be excluded under § 1.410(b)-6 and employees listed in

§ 1.403(b)-5(b)(4)(ii)(D) or (E). The plan may provide options as to whether some or all

of the employees described in § 1.410(b)-6 are excluded, provided that the criteria for

excluding employees described in § 1.410(b)-6 apply uniformly to all employees. A

Standardized Plan generally may not deny an allocation to an employee eligible to

participate merely because the employee is not an active employee on the last day of

the plan year or has failed to complete a specified number of hours of service during the

year. However, the plan may deny an allocation to an employee who is eligible to

participate if the employee terminates service during the plan year with not more than

500 hours of service and is not an active employee on the last day of the plan year. A

plan will not fail to satisfy the requirements of this section 9.07(3) with respect to

contributions other than elective deferrals merely because the plan provides, either as

the result of an elective provision or by default in the absence of an election to the

contrary, that individuals who become employees, within the meaning of

section 9.06(8), as the result of a transaction described in § 410(b)(6)(C) are excluded

from eligibility to participate in the plan during the period beginning on the date of the

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

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

change in the plan or in the coverage of the plan. A transaction described in

§ 410(b)(6)(C) is an asset or stock acquisition, merger, or other similar transaction

involving a change in the employer of the employees of a trade or business.

(ii) Eligibility is not more favorable for highly compensated employees.

The eligibility requirements under the plan are not more favorable for highly

compensated employees (as defined in § 414(q)) than for other employees.

(iii) Allocations are based on total compensation. Under the plan,

allocations (other than any elective deferral portion) are determined on the basis of total

compensation. The plan must provide that, for purposes of allocations, the definition of

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

compensation that otherwise satisfies § 414(s) and § 1.414(s)-1(c).

(iv) Section 401(a)(4) safe harbors. If the plan provides for contributions

other than elective deferrals and matching contributions, the plan must satisfy one of the

design-based safe harbors described in § 1.401(a)(4)-2(b)(2) with respect to the

contributions.

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

benefits, rights, and features under the plan (other than those, if any, that have been

prospectively eliminated) are currently available to all employees benefiting under the

plan. (For information regarding benefits, rights, and features and the determination of

current availability, see § 1.401(a)(4)-4.)

35

.08 Additional provisions required in a Section 403(b) Pre-approved Plan intended

to be a Retirement Income Account. Each Section 403(b) Pre-approved Plan that is

intended to be a Retirement Income Account must meet the following requirements:

(1) Identification as Retirement Income Account. The plan must state the intent

to be a Retirement Income Account in accordance with § 1.403(b)-9(a)(2)(ii).

(2) Separate accounting, investment performance, and exclusive benefit. The

terms of the plan must satisfy the separate accounting, investment performance, and

exclusive benefit requirements of § 1.403(b)-9(a)(2)(i).

(3) Life annuity requirements. If the plan provides for benefits in the form of a life

annuity, the plan must satisfy the present value and benefit guarantee requirements of

§ 1.403(b)-9(a)(5), and the present value must be based on reasonable actuarial

assumptions that are either set forth in the plan or incorporated by reference into the

plan.

(4) Nondiscrimination requirements. The terms of the plan must set forth the

nondiscrimination requirements of § 403(b)(12). The plan also must state that the

nondiscrimination requirements are applied to any employee other than an employee of

a QCCO or Church.

(5) Multiple Employers that are not Related Employers. In the case of multiple

Employers that are not Related Employers participating in the plan, each Adopting

Employer must identify whether it is a Church, QCCO, non-QCCO, or minister.

SECTION 10. OPINION LETTERS - SCOPE

.01 General limits on Opinion Letters. An Opinion Letter constitutes a determination

that the form of a Pre-approved Plan satisfies the Qualification Requirements or the

Section 403(b) Requirements, as applicable, subject to the requirements and limitations

of this revenue procedure. An Opinion Letter is issued only to a Provider or Mass

Submitter. The IRS’s review of a Provider’s or Mass Submitter’s application for an

Opinion Letter for a Pre-approved Plan will consider only the terms of the single plan

document or the basic plan document and adoption agreement, as applicable. The

IRS’s review will not consider, and an Opinion Letter will not express an opinion with

respect to, the terms of any Trust or Custodial Account Document for (or Investment

Arrangement under) the plan of any Adopting Employer or any other documents that

may be incorporated by reference into an Adopting Employer’s plan. An Opinion Letter

for a Qualified Pre-approved Plan does not constitute a ruling or a determination as to

the exempt status of related trusts or custodial accounts under § 501(a).

.02 Plans for which an Opinion Letter will not be issued.

(1) For a Pre-approved Plan, an Opinion Letter will not be issued for:

36

(a) A plan under which the § 415 limitations are incorporated by reference;

(b) A plan under which the actual contribution percentage (ACP) test under

§ 401(m)(2) is incorporated by reference;

(c) A Nonstandardized Plan that provides for hardship distributions under

circumstances not described in the safe harbor standards in the regulations under

§ 401(k), unless these distributions are subject to nondiscriminatory and objective

criteria included in the plan;

(d) A plan that includes blanks or fill-in provisions for the Adopting Employer

to complete, unless the provisions have parameters that preclude the Adopting

Employer from completing the provisions in a manner that could violate the Qualification

Requirements or Section 403(b) Requirements, as applicable;

(e) A plan designed to satisfy the provisions of § 105;

(f) A plan that includes § 401(h) accounts; or

(g) A plan that includes purported fail-safe provisions for § 401(a)(4) or the

average benefit test under § 410(b).

(2) For a Qualified Pre-approved Plan, in addition to the circumstances

described in section 10.02(1), an Opinion Letter will not be issued for:

(a) A multiemployer plan;

(b) A single-employer collectively bargained plan (however, this rule does not

preclude an employer from covering employees of the employer that are included in a

unit covered by a collective bargaining agreement if it is adopting a Pre-approved Plan

for its non-bargaining employees or from adopting a Pre-approved Plan pursuant to

such agreement as a single-employer plan that covers only bargaining employees of the

employer);

(c) A stock bonus plan other than an ESOP;

(d) An ESOP that is a combination of a stock bonus plan and a money

purchase plan;

(e) An ESOP that provides for the holding of preferred employer stock,

including an ESOP that holds stock described in § 409(l)(3);

(f) A Statutory Hybrid Plan with any of the following features:

37

(i) A statutory hybrid benefit formula that is not a Cash Balance Formula,

such as a formula under which benefits are determined by reference to the current

value of an accumulated percentage of the participant’s average compensation (a

Pension Equity Plan or PEP);

(ii) A provision under which Interest Credits are based on rates of return

that are subject to participant choice, or any rate that does not meet the requirements of

§ 1.411(b)(5)-1(d);

(iii) A provision under which a rate used to determine Interest Credits is

based on the actual rate of return on aggregate assets of the plan described in

§ 1.411(b)(5)-1(d)(5)(ii)(A) or the rate of return on certain regulated investment

companies (RICs) described in § 1.411(b)(5)-1(d)(5)(iv) (unless the plan provides that

the rate used to determine Interest Credits is equal to the actual rate of return on the

aggregate assets of the plan), or is based on or equal to the actual rate of return on a

subset of plan assets (as described in § 1.411(b)(5)-1(d)(5)(ii)(B));

(iv) A Conversion Amendment, except for plans providing that, after the

effective date of the Conversion Amendment, a participant’s accrued benefit is equal to

the sum of accruals under the prior formula plus the benefit based on the Cash Balance

Formula (“A+B Conversion”);

(v) A provision that uses the 3-percent accrual rule or the fractional

accrual rule under § 411(b)(1)(A) or (C) to satisfy the accrued benefit requirements

under § 411(b)(1);

(vi) A provision for funding exclusively through insurance contracts as

described in § 412(e)(3); or

(vii) A provision for Offsets of benefits accrued under another plan (the

“offsetting plan”), unless:

(A) The Offset is applied on an accumulated basis at the participant’s

annuity starting date, rather than offsetting each year’s Principal Credit by that year’s

accruals or contributions under the offsetting plan;

(B) If plan provisions are consistent with treatment of the Cash

Balance Formula as a lump sum-based benefit formula under § 1.411(a)(13)-1(d)(3),

then the offsetting plan is a defined contribution plan, and the Offset is applied by

subtracting the account balance under the defined contribution plan from the

hypothetical account balance under the Cash Balance Formula prior to converting the

balance to an annuity benefit;

(C) The Offset satisfies the safe-harbor requirements of

§ 1.401(a)(4)-8(d) (except that the Offset can be computed by subtracting the account

38

balance under the offsetting plan from the hypothetical account balance under the Cash

Balance Formula), including the requirement that the offsetting plan may not be a

§ 401(k) plan or a § 401(m) plan;

(D) For the purpose of determining the amount of the Offset against

any defined benefit formula, the Offset reflects the value of any distributions from the

offsetting plan made prior to the participant’s annuity starting date under the Cash

Balance Plan;

(E) The Offset is applied on a uniform basis for all participants;

(F) The plan provides a minimum accrued benefit to participants

(expressed as a lifetime annuity commencing at normal retirement age) of no less than

0.5% of compensation for each year of credited service, which is not reduced by the

Offset applied to other formulas under the plan;

(G) Accrued benefits, considered in conjunction with defined

contribution accounts subject to any Offset, meet nondiscrimination requirements; and

(H) The amount of the Offset, including any procedures and actuarial

assumptions for converting a defined contribution account balance (under a specifically

named defined contribution plan) to an annuity amount, is definitely determinable;

(g) A plan described in § 414(k) (relating to a defined benefit plan that

provides a benefit derived from employer contributions that is based partly on the

balance of the separate account of a participant);

(h) A target benefit plan, other than a plan that, by its terms, satisfies each of

the safe harbor requirements described in § 1.401(a)(4)-8(b)(3)(i), as well as the

additional rules in § 1.401(a)(4)-8(b)(3)(ii) through (vii);

(i) A governmental defined benefit plan that includes a “deferred retirement

option plan” (DROP) feature, or similar provisions in which a participant earns additional

benefits for continued employment post-normal retirement age in the form of credits to a

separate account (including a cash balance account or other arrangement) under the

same plan;

(j) A plan under which the actual deferral percentage (ADP) test under

§ 401(k)(3) is incorporated by reference;

(k) A fully insured § 412(e)(3) plan, other than a non-statutory hybrid plan

that by its terms satisfy the safe harbor in § 1.401(a)(4)-3(b)(5);

(l) An eligible combined plan within the meaning of § 414(x)(2); or

39

(m) A Variable Annuity Plan.

(3) For Section 403(b) Pre-approved Plans, in addition to the circumstances

described in section 10.02(1), an Opinion Letter will also not be issued for:

(a) A TEFRA church defined benefit plan (see § 1.403(b)-10(f)(2)); or

(b) A plan grandfathered under Rev. Rul. 82-102, 1982-1 CB 62.

.03 Issues an Opinion Letter will not consider.

(1) Title I issues. Except as otherwise provided in guidance, an Opinion Letter

does not express an opinion, and may not be relied upon, with respect to whether any

plan is subject to the requirements of Title I of ERISA or whether a plan satisfies any of

those requirements.

(2) Issues related to a Section 403(b) Pre-approved Plan’s coverage of multiple

employers that are not Related Employers. An Opinion Letter does not express an

opinion, and may not be relied upon, with respect to whether the plan satisfies

§ 403(b)(15) or any other requirements that apply related to a plan’s coverage of

multiple employers that are not Related Employers.

.04 IRS discretion to decline to issue an Opinion Letter. The IRS may, in its

discretion, decline to issue an Opinion Letter for other types of plans or issues not

described in this section 10.

.05 Nonapplicability of this revenue procedure to IRAs (including traditional IRAs,

Roth IRAs, SEPs, and Simple IRAs). An Opinion Letter will not be issued under this

revenue procedure for prototype plans intended to meet the requirements for individual

retirement arrangements under § 408. 15

SECTION 11. ELIGIBILITY FOR THE CYCLE SYSTEM

.01 Initial eligibility for the Cycle system.

(1) In general. An Employer that initially adopts a Pre-approved Plan 16 may adopt

the plan at any time during a Cycle. Subject to section 11.01(2), upon an Employer’s

See the Form 5305 series, which provides model IRA documents that have been pre-approved by the

IRS and for which an opinion letter is not needed. See also Rev. Proc. 87-50, 1987-2 CB 647, as modified

by Rev. Proc. 97-29, 1997-1 CB 698; Rev. Proc. 98-59, 1998-2 CB 727; and Rev. Proc. 2010-48,

2010-50 IRB 828, for administrative procedures for seeking opinion letters for individual retirement

arrangements under § 408.

16

For purposes of this section 11, the term Pre-approved Plan includes a plan that was not in existence in

the immediately preceding Cycle and that has been submitted for (but has not yet received) an Opinion

Letter for the Cycle.

15

40

adoption of a Pre-approved Plan, the plan becomes subject to the rules applicable to

the Cycle system and the procedures set forth in this revenue procedure. In particular,

while a plan is subject to the Cycle system, the plan’s Disqualifying Provisions or Form

Defects, as applicable, will have the Remedial Amendment Periods described in

section 6. After a plan is no longer subject to the Cycle system, the plan’s Disqualifying

Provisions or Form Defects will be subject to the Remedial Amendment Period rules for

an individually designed plan. See Rev. Proc. 2022-40. Accordingly, as of the date that

a plan is no longer subject to the Cycle system, if the Remedial Amendment Period for a

Disqualifying Provision or Form Defect would be expired under the rules for individually

designed plans, then the Remedial Amendment Period will be expired, notwithstanding

that the Remedial Amendment Period would not be expired for a Pre-approved Plan. To

continue to be eligible for the Cycle system, the Employer must follow the rules in this

revenue procedure for continued eligibility. See, in particular, sections 11.02 and 13.

(2) Prior plan must be a valid plan. If an Employer that maintains an individually

designed plan amends the plan by adopting a Pre-approved Plan, the form of the

individually designed plan must satisfy the Qualification Requirements or Section 403(b)

Requirements, as applicable, at the time the Pre-approved Plan is adopted.

Accordingly, prior to adopting the Pre-approved Plan, the Employer must have either

timely corrected any Disqualifying Provisions or Form Defects in the individually

designed plan before the expiration of the applicable Remedial Amendment Period for

such Disqualifying Provision or Form Defect, or have corrected any plan document

failure under EPCRS.

.02 Continuing eligibility for the Cycle system - requirement to adopt newly

approved Pre-approved Plan. For a Pre-approved Plan adopted pursuant to

section 11.01 to continue to be eligible for the Cycle system, by the end of the Employer

Adoption Window for each Cycle, the Adopting Employer must adopt a newly approved

Pre-approved Plan (a newly approved version of the same plan or a newly approved

version of a different Pre-approved Plan). If, during the Employer Adoption Window for a

Cycle, instead of adopting a newly approved Pre-approved Plan, an Adopting Employer

amends its Pre-approved Plan by adopting an individually designed plan, the plan will

continue to be subject to the Remedial Amendment Period rules applicable to Preapproved plans until the end of the Employer Adoption Window for that Cycle; however,

for all other purposes, upon adoption of the individually designed plan, the plan will be

treated as an individually designed plan. This means, for example, that if the plan is

submitted for a determination letter during the Employer Adoption Window, the eligibility

conditions applicable to submission of a determination letter set forth in section 9 of

Rev. Proc. 2022-40 will apply, and the scope of plan review will be based on the

applicable Required Amendments List, as described in section 10 of that revenue

procedure. In contrast, if, by the end of any Employer Adoption Window, an Adopting

Employer does not amend its Pre-approved Plan by adopting a newly approved Preapproved Plan or any other plan, the plan will be treated as an individually designed

plan at the end of that Employer Adoption Window. Accordingly, the plan will become

subject to the rules relating to the Remedial Amendment Period, plan amendment

41

deadlines, and the eligibility requirements applicable to individually designed plan

determination letter applications set forth in Rev. Proc. 2022-40 at that time. Once a

plan is treated as an individually designed plan, the Adopting Employer is no longer able

to rely on an Opinion Letter for that Cycle.

SECTION 12. EMPLOYER RELIANCE ON OPINION LETTER

.01 Standardized Plans.

(1) Except as set forth in section 12.01(2), (3) and (4), an Adopting Employer of

a Standardized Plan may rely on the plan’s Opinion Letter that the form of the Adopting

Employer’s plan satisfies, in the case of a Section 403(b) Pre-approved Plan, the

Section 403(b) Requirements (including, if applicable, the requirements of §§ 401(a)(4)

and 410(b)) or, in the case of a Qualified Pre-approved Plan, the Qualification

Requirements, if:

(a) The Standardized Plan has a currently valid Opinion Letter,

(b) The coverage and contributions or benefits under the Adopting

Employer’s plan are not more favorable for highly compensated employees (as defined

in § 414(q)) than for other employees,

(c) The Adopting Employer has not amended the Standardized Plan other

than to choose options provided under the Standardized Plan or to make amendments

as described in section 13.02 relating to employer amendments that will not affect

reliance, and

(d) In the case of a Section 403(b) Pre-approved Plan, either (i) the only

contributions under the plan are elective deferrals, or (ii) the plan provides for

contributions other than elective deferrals and all of the Adopting Employer’s Related

Employers are employers described in § 403(b)(1)(A). If the plan provides for

contributions other than elective deferrals and the Adopting Employer’s controlled group

includes any employer that is not an employer described in § 403(b)(1)(A), the Adopting

Employer may rely on the plan’s Opinion Letter, except with respect to whether

contributions other than elective deferrals under the plan satisfy the requirements of

§§ 401(a)(4) and 410(b).

(2) An Adopting Employer may not rely on an Opinion Letter for a Standardized

Plan with respect to the requirements of § 415 (and § 416, in the case of a Qualified

Pre-approved Plan) without obtaining a determination letter (see section 25) if the

Adopting Employer, or, in the case of a Section 403(b) Pre-approved Plan, any of its

Related Employers, maintains or maintained at any time, another plan, including a

Standardized Plan, that was qualified or determined to be qualified or a 403(b) plan and

that covers or covered some of the same participants. An Employer that adopts a

Standardized Plan that is a defined contribution plan is not considered to have

42

maintained another plan merely because the Employer has maintained another defined

contribution plan, provided such other plan has been terminated prior to the effective

date of the Standardized Plan and no annual additions have been credited to the

account of any participant under such other plan as of any date within a limitation year

of the Standardized Plan. For this purpose, a plan that has been amended from an

individually designed plan to a Standardized Plan is not considered another plan. To be

a plan that has been amended from an individually designed plan to a Standardized

Plan and thus for the Employer to be able to rely on the Standardized Plan with respect

to the requirements of §§ 415 and 416 without obtaining a determination letter, the

individually designed plan that has been amended into the Standardized Plan must be

of the same type (for example, both defined benefit plans).

(3) An Adopting Employer of a Standardized Plan may not rely on an Opinion

Letter for the Standardized Plan with respect to:

(a) Whether the timing of any amendment to the Adopting Employer’s plan

(or series of amendments) satisfies the nondiscrimination requirements of

§ 1.401(a)(4)-5(a), except with respect to plan amendments granting past service that

meet the safe harbor described in § 1.401(a)(4)-5(a)(3) and are not part of a pattern of

amendments that significantly discriminates in favor of highly compensated employees;

or

(b) Whether the Adopting Employer’s plan satisfies the effective availability

requirement of § 1.401(a)(4)-4(c) with respect to any benefit, right, or feature.

An Employer that adopts a Standardized Plan as an amendment to a plan other than a

Standardized Plan may not rely on the Opinion Letter with respect to whether a benefit,

right, or feature that is prospectively eliminated satisfies the current availability

requirements of § 1.401(a)(4)-4, if applicable.

(4) In the case of a Qualified Pre-approved Plan, an Adopting Employer of a

Standardized Plan that is a defined benefit plan may rely on the plan’s Opinion Letter

with respect to the requirements of § 401(a)(26) only if the plan satisfies the

requirements of § 401(a)(26) with respect to its prior benefit structure (within the

meaning of § 1.401(a)(26)-3) or is deemed to satisfy § 401(a)(26) pursuant to

regulations thereunder.

(5) For SIMPLE plans described in § 401(k)(11) and (m)(10), an Adopting

Employer may also rely on the plan’s Opinion Letter regarding whether the form of the

Adopting Employer’s plan satisfies the requirements of those sections.

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

harbor deferral-only plan described in § 403(b)(16), an Adopting Employer may also rely

on the plan’s Opinion Letter regarding whether the form of the Adopting Employer’s plan

satisfies the requirements of those sections.

43

.02 Nonstandardized Plans.

(1) An Adopting Employer of a Nonstandardized Plan may rely on the plan’s

Opinion Letter that the form of the Adopting Employer’s plan satisfies the Qualification

Requirements or Section 403(b) Requirements, as applicable, if:

(a) The Nonstandardized Plan has a currently valid Opinion Letter, and

(b) The Adopting Employer has not amended the plan other than to choose

options provided under the plan or to make amendments as described in section 13.02

relating to employer amendments that will not affect reliance.

(2) Except as otherwise provided in this section 12.02, an Adopting Employer of

a Nonstandardized Plan may not rely on the plan’s Opinion Letter with respect to the

requirements of:

(a) In the case of a Qualified Pre-approved Plan, §§ 401(a)(4), 401(a)(26),

401(l) , 410(b), or 414(s) (or, in the case of a Section 403(b) Pre-approved Plan,

§§ 401(a)(4), 410(b), or 414(s)); or

(b) Section 415 (or § 416, in the case of a Qualified Pre-approved Plan) if the

Adopting Employer, or any of its Related Employers, maintains or has ever maintained

another plan covering some of the same participants. For this purpose, whether an

employer maintains or has ever maintained another plan is determined using principles

consistent with section 12.01(1).

(3) An Adopting Employer of a Nonstandardized Plan may rely on the plan’s

Opinion Letter with respect to the requirements of § 410(b), if applicable (and, in the

case of a Qualified Pre-approved Plan, § 401(a)(26) (other than the § 401(a)(26)

requirements that apply to a prior benefit structure)), if all nonexcludable employees

benefit under the Adopting Employer’s plan.

(4) Nonstandardized Plans may permit an Adopting Employer to select an

allocation formula for contributions other than elective deferrals that satisfies one of the

design-based safe harbors in § 1.401(a)(4)-2(b)(2) (or, in the case of a Qualified Preapproved Plan that is a defined benefit plan, a benefit formula that satisfies one of the

design-based safe harbors under § 1.401(a)(4)-3(b)(3), (4), or (5)), and to select a safe

harbor compensation definition for the formula that satisfies § 1.414(s)-1(c). If the

Adopting Employer selects an allocation formula for contributions other than elective

deferrals that satisfies one of the design-based safe harbors in § 1.401(a)(4)-2(b)(2) (or,

in the case of a Qualified Pre-approved Plan that is a defined benefit plan,

§ 1.401(a)(4)-3(b)(3), (4), or (5)), and, if the allocation or benefit formula is based on

compensation, selects a safe harbor compensation definition that satisfies

§ 1.414(s)-1(c), then the Adopting Employer of a Nonstandardized Plan may rely on the

44

plan’s 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 (and/or, in the case of a Qualified Preapproved Plan, § 401(k) contributions) may rely on the plan’s Opinion Letter with

respect to whether the form of the plan satisfies the actual contribution percentage

(ACP) test of § 401(m)(2) (or, in the case of a Qualified Pre-approved Plan, the actual

deferral percentage (ADP) test of § 401(k)(3)) if the Adopting Employer elects to use a

safe harbor definition of compensation in the test. An Adopting Employer of a

Nonstandardized Plan that satisfies the safe harbor requirement described in

§ 401(m)(11) or 401(m)(12) (or, in the case of a Qualified Pre-approved Plan, that

satisfies the safe harbor requirement described in § 401(k)(12) or 401(k)(13)) may rely

on the plan’s Opinion Letter with respect to whether the form of the Adopting Employer’s

plan satisfies the requirements of § 401(m) (or § 401(k), if applicable), unless the plan

provides for the safe harbor contribution under § 401(m)(11) or 401(m)(12) (or

§ 401(k)(12) or 401(k)(13), if applicable) to be made under another plan.

(5) For SIMPLE plans described in § 401(k)(11) and (m)(10), an Adopting

Employer may also rely on the plan’s Opinion Letter regarding whether the form of the

Adopting Employer’s plan satisfies the requirements of those sections.

(6) For starter 401(k) deferral-only plans described in § 401(k)(16) or a safe

harbor deferral-only plan described in § 403(b)(16), an Adopting Employer may also rely

on the plan’s Opinion Letter regarding whether the form of the Adopting Employer’s plan

satisfies the requirements of those sections.

(7) Except as set forth in section 9.05(2), an Adopting Employer of a

Nonstandardized Plan that is a Qualified Pre-approved Plan that includes a Cash

Balance Formula with a structure of Principal Credits that increase with age, service, or

any other measure during a participant’s employment may not rely on the plan’s Opinion

Letter with respect to the requirements of § 411(b)(1).

.03 Other limitations and conditions on reliance. Notwithstanding any provision in

this section 12 to the contrary, the following conditions and limitations regarding reliance

by an Adopting Employer on an Opinion Letter apply with respect to all Pre-approved

Plans:

(1) An Adopting Employer may rely on an Opinion Letter for a plan that amends

a plan of the Employer only if the form of the plan that is being amended satisfied the

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

prior to being amended, the plan must either have timely corrected any Disqualifying

Provisions or Form Defects for which the Remedial Amendment Period is closed or

have corrected any plan document failures under the EPCRS. If this requirement is not

met, then the employer (a) is considered to have adopted an individually designed plan,

(b) may not rely on the Opinion Letter for the plan, and (c) is not considered be on the

45

Cycle system. 17

(2) An Adopting Employer may not rely on an Opinion Letter if the Adopting

Employer’s adoption of a Pre-approved Plan precedes the issuance of an Opinion Letter

for the plan. 18

(3) An Adopting Employer may not rely on an Opinion Letter if the adoption

agreement or other elective provisions in the plan are not completed correctly by the

Adopting Employer.

(4) An Adopting Employer of any Qualified Pre-approved Plan that is not a

Governmental Plan and that is a pension plan in which the normal retirement age

selected by the Adopting Employer is less than age 62 may not rely on the Opinion

Letter that such age is reasonably representative of the typical retirement age for the

employer’s industry, as required by § 1.401(a)-1(b)(2). For an Adopting Employer of any

Qualified Pre-approved Plan that is a Governmental Plan and that is a pension plan in

which the normal retirement age selected by the Adopting Employer does not satisfy

any of the safe harbors described in § 1.401(a)-1(b)(2)(v) of the proposed regulations

may not rely on the Opinion Letter that such age is reasonably representative of the

typical retirement age for the employer’s industry, as required by § 1.401(a)-1(b)(2).

(5) An Adopting Employer may not rely on an Opinion Letter with respect to any

provision of a Trust or Custodial Account Document or Investment Arrangement, as

applicable, that conflicts with language in the basic plan document, adoption agreement,

or single plan document, as applicable, even if the Trust or Custodial Account

Document or Investment Arrangement includes language that states that the provisions

of the Trust or Custodial Account Document or Investment Arrangement override the

basic plan document, adoption agreement, or single plan document. 19

(6) For a Qualified Pre-approved Plan, the issuance of an Opinion Letter is not a

determination by the IRS that an Adopting Employer’s plan is a Governmental Plan or a

church plan (as described in § 414(e)). For a Section 403(b) Pre-approved Plan, the

issuance of an Opinion Letter is not a determination by the IRS that an Adopting

Employer’s plan is a Governmental Plan, or that an Adopting Employer is a Church or

QCCO.

(7) Pursuant to section 14.11, a Provider’s failure to disclose to the IRS a

The plan may still use EPCRS to correct any failures, and, after correction, then be eligible to adopt a

Pre-approved Plan.

18

In this case, in order to have reliance, the Adopting Employer would need to re-adopt the Pre-approved

Plan after the issuance of the Opinion Letter for the plan.

19

Accordingly, if a Pre-approved Plan is operated in a manner that is inconsistent with a provision of the

basic plan document or single plan document, the plan will incur an operational failure even if the plan is

operated in a manner consistent with a provision of a Trust or Custodial Account Document or Investment

Arrangement that conflicts with the provision of the basic plan document or single plan document.

17

46

material fact, misrepresentation of a material fact, or failure to accurately provide any of

the information called for on any form required by this revenue procedure may result in

the inability of Adopting Employers to rely on an Opinion Letter (for example, if there is a

failure to disclose to the IRS a material fact, the IRS may revoke the Opinion Letter due

to the failure).

(8) Pursuant to section 15.03(2)(c), if a Mass Submitter fails to identify a material

modification, the failure is 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 Reliance equivalent to determination letter. If an Adopting Employer may rely on

an Opinion Letter pursuant to this section 12, the Opinion Letter is equivalent to a

determination letter. For example, the Opinion Letter is treated as a determination letter

for purposes of section 23 of Rev. Proc. 2023-4 (as updated annually), regarding the

effect of a determination letter. As provided in this section 12, the extent of the Adopting

Employer’s reliance may be limited.

.05 Obtaining a determination letter. If an Adopting Employer may not rely on a Preapproved Plan’s Opinion Letter, the Adopting Employer, if eligible as set forth in

section 25, may submit an application for a determination letter to obtain reliance that

the form of the plan satisfies the Qualification Requirements or Section 403(b)

Requirements, as applicable.

SECTION 13. PLAN AMENDMENTS

.01 Provider plan amendments generally. Providers are required to amend their

Pre-approved Plans to ensure that the form of their plans continues to satisfy the

Qualification Requirements or Section 403(b) Requirements, as applicable. 20 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 such plan amendments. Providers must include

the date on which each amendment is adopted by the Provider with the amendment

provided to Adopting Employers. 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. A Provider’s failure to

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

Plans and the revocation of an Opinion Letter that has been issued to the Provider.

20

See section 6.04 regarding the requirement to make Interim Amendments.

47

.02 Amendments that will not affect reliance. An Adopting Employer may continue to

rely on an Opinion Letter for a Pre-approved Plan if amendments to the plan are made

that are described in paragraphs (1) through (8) of this section 13.02. See section 12.01

and 12.02 for the effect of 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 Pre-approved Plan as well as under the Qualification

Requirements or Section 403(b) Requirements, as applicable, and the provision is

identical to a provision in the Pre-approved Plan, except for the effective date;

(2) Sample or model amendments (or an amendment that is substantially similar

to a sample or model amendment in all material respects) that are adopted by the

Adopting Employer, that are published by the IRS, and that specifically provide that their

adoption will not cause a plan to fail to be identical to the Pre-approved 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, or add automatic cost-ofliving adjustment provisions to the plan;

(4) Plan language completed by the Adopting Employer if such overriding

language is necessary to satisfy § 415 (or 416, in the case of a Qualified Pre-approved

Plan) because of the required aggregation of multiple plans under that section, in

accordance with section 9.02(3) or 9.06(2);

(5) Interim Amendments or Discretionary Amendments that are adopted as a

result of a change in Qualification Requirements or Section 403(b) Requirements, as

applicable, for the form of the 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

satisfies the conditions to be a Provider described in section 4.01(15) (see also

section 19 regarding changes in employer identification numbers);

(7) Amendments to the administrative provisions in the plan (such as provisions

relating to investments, plan claims procedures, and 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 Qualification Requirements or Section 403(b)

Requirements, as applicable, (see section 15.03(1)(b)(ii) for additional examples of

administrative provisions); and

48

(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).

.03 Obtaining reliance after employer amendment. If an Adopting Employer may not

rely on a Pre-approved Plan’s Opinion Letter, the Adopting Employer, if eligible in

accordance with section 25, may submit an application for a determination letter to

obtain reliance that the form of the plan satisfies the Qualification Requirements or

Section 403(b) Requirements, as applicable.

.04 Effect of employer amendments on a plan’s eligibility for the Cycle system.

Except as set forth in section 13.05, employer amendments made to a Pre-approved

Plan will not affect the plan’s eligibility for the Cycle system.

.05 Pre-approved plans treated as individually designed. An Adopting Employer’s

Pre-approved Plan is treated as individually designed (and, as a result of the plan being

treated as individually designed, the Adopting Employer may not rely on the plan’s

Opinion Letter (see section 12 regarding reliance), will lose eligibility for the Cycle

system as described in this section 13.05 (see section 11 regarding eligibility for the

Cycle system), and will be subject to different rules for applying for a determination

letter (see section 25 regarding determination letters)) under the following

circumstances:

(1) An Adopting Employer makes any amendment to a Standardized Plan other

than an amendment listed in section 13.02 or as otherwise described in this

section 13.05. 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. 21

(2) An Adopting Employer amends a Pre-approved Plan (including its adoption

agreement, if applicable) within one year of the date the Adopting Employer initially

adopted the Pre-approved Plan to incorporate a type of plan not permitted in the

Opinion Letter program, as described in section 10.02. In this case, the Adopting

Employer is treated as never having had any reliance on the Opinion Letter and is

treated as never having been eligible for the Cycle system.

(3) An Adopting Employer amends a Pre-approved Plan (including its adoption

agreement, if applicable) more than one year after the date the Adopting Employer

Adopting Employers who are considering making an amendment that is not extensive to a

Standardized Plan might consider adopting a Nonstandardized Plan instead, in order to be able to apply

for determination letter using Form 5307, Application for Determination for Adopters of Modified

Nonstandardized Pre-approved Plans, as a Pre-approved Plan. See section 25.

21

49

initially adopted the Pre-approved Plan to incorporate a type of plan not permitted in the

Opinion Letter program, as described in section 10.02. 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) An Adopting Employer of a Nonstandardized Plan makes amendments that,

due to the nature and extent of the amendments, result in the IRS, in its sole discretion,

determining that the plan should be treated as individually designed. 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 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 Preapproved Plan that has been amended by the Provider without substituting another Preapproved Plan. In this case, the Adopting Employer will lose reliance on the Opinion

Letter as of the date participation in the 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 Pre-approved Plan ends.

(6) An Adopting Employer makes an amendment to a Pre-approved Plan that

removes any of the required provisions of section 9. 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.

(7) As set forth in section 11.02, if, during the Employer Adoption Window for a

Cycle, an Adopting Employer adopts a plan other than either a newly approved version

of the same plan or a newly approved version of a different Pre-approved Plan, the plan

will continue to be subject to the Remedial Amendment Period rules applicable to Preapproved plans until the end of the Employer Adoption Window for that Cycle; however,

for purposes other than the Remedial Amendment Period, at the time the plan that is

not a newly approved Pre-approved Plan is adopted, the plan will be treated as an

individually designed plan. In contrast, if, by the end of any Employer Adoption Window,

an Adopting Employer fails to adopt a newly approved version of the same plan or a

newly approved version of a different Pre-approved Plan, and does not adopt another

plan to replace its Pre-approved plan, the plan will be treated as an individually

designed plan at the end of that Employer Adoption Window.

(8) As set forth in section 6.04, if an Interim Amendment is not adopted by the

time period set forth in section 7 and the Adopting Employer does not correct this failure

50

to timely adopt the Interim Amendment within two years after the time period set forth in

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

plan at the end of that two-year period.

SECTION 14. OPINION LETTER APPLICATIONS - INSTRUCTIONS TO PROVIDERS

AND OTHER RULES FOR APPLICATIONS AND LETTERS

.01 Issuance of an Opinion Letter. The IRS will, upon an application of a Provider,

issue an Opinion Letter confirming that the form of the Provider’s plan satisfies the

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

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

Plans. Pursuant to this revenue procedure, the Submission Period for a Provider of a

defined contribution Qualified Pre-approved Plan to submit an application for a Cycle 4

Opinion Letter begins on February 1, 2024, and ends on January 31, 2025. A Provider

may still apply for a Cycle 4 Opinion Letter after the Submission Period. See section 16

regarding filing after the Submission Period.

.03 Procedure for applying for an Opinion Letter. The Provider must submit an

application for an Opinion Letter with respect to its plan on the version of Form 4461,

Application for Approval of Standardized or Nonstandardized Pre-approved Defined

Contribution Plans, Form 4461-A, Application for Approval of Standardized or

Nonstandardized Pre-approved Defined Benefit Plan, Form 4461-B, Application for

Approval of Standardized or Nonstandardized Pre-approved Plans (Mass Submitter

Adopting Provider), or Form 4461-C, Application for Approval of Standardized or

Nonstandardized 403(b) Pre-approved Plans, as appropriate, that is applicable at the

time of the request. The request must be accompanied by (1) the applicable required

user fee that will be provided for in the successors to Rev. Proc. 2023-4 (as updated

annually), and (2) if an Opinion Letter had been issued for the plan for the preceding

Cycle, a signed certification that all necessary amendments required by the IRS in order

for the form of the plan to satisfy the Qualification Requirements or Section 403(b)

Requirements, as applicable, have been made and communicated to all Adopting

Employers. All information on the application form must be typed. The application form

must be sent to the address listed in section 24. The application must include a copy of

the plan document and any adoption agreement, if applicable. If an Opinion Letter had

been issued for the plan for the preceding Cycle, the Provider must submit a restated

plan that incorporates any amendments. Copies of Trust or Custodial Account

Documents, Investment Arrangements, or other funding media should not be submitted,

as the IRS will not review for (and the Opinion Letter will not cover) any provisions

included in Trust or Custodial Account Documents, Investment Arrangements, or other

funding media. 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. If a plan received an

Opinion Letter for the preceding Cycle, the IRS strongly encourages Providers to submit

51

a redline of the plan highlighting the changes made. To pay a user fee, a Provider must

continue to submit a paper check and a paper Form 8717-A, User Fee for Employee

Plan Opinion Letter Request.

.04 Additional submission requirements for Interim Amendments. If the plan has

received an Opinion Letter for the preceding Cycle, in addition to the application

described in section 14.03, the Provider must submit a certification that all Interim

Amendments related to changes in law listed 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 related to changes in

law listed on the 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 16 regarding filings made after the Submission Period.

To expedite the review of substantially identical plans that are not a Mass Submitter’s

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 14.05

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 such difference; and

(4) A certification made under penalties of perjury by the plan drafter that the

information described in paragraph (3) of this section 14.05 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 information and

certification described in paragraphs (3) and (4) of this section 14.05 as a

representation of a material fact for purposes of issuing an Opinion Letter.

.06 Adoption Agreement Plans - number of basic plan documents, adoption

agreements, and applications required.

52

(1) Qualified Pre-approved Plans: use of basic plan document by multiple

Adoption Agreement Plans.

(a) In general, provided that the provisions of a basic plan document are

identical for all plans using that document, separate defined contribution Qualified Preapproved Plan adoption agreements may be associated with the same defined

contribution Qualified Pre-approved Plan basic plan document, and separate defined

benefit Qualified Pre-approved Plan adoption agreements may be associated with the

same defined benefit Qualified Pre-approved Plan basic plan document. Thus, for

example, a profit-sharing plan, a money purchase pension plan other than a target

benefit plan, a target benefit plan, and an ESOP may all use the same defined

contribution basic plan document. Adoption agreements of defined benefit plans,

defined contribution plans, and § 403(b) plans may not be associated with the same

basic plan document.

(b) Basic plan documents and associated adoption agreements used for

Governmental Plans must be separate from the basic plan documents and associated

adoption agreements used for plans that are not Governmental Plans. In addition, the

basic plan document and the adoption agreements associated with a church plan, as

described in § 414(e), that has not made an election set forth in § 410(d) may not be

combined with the basic plan document and the adoption agreements of any other type

of plan. Thus, for example, a Provider that wishes to obtain Opinion Letters for a

Governmental Plan and a non-electing church plan must submit a separate basic plan

document and associated adoption agreement for the Governmental Plan and a

separate basic plan document and associated adoption agreement for the non-electing

church plan.

(2) Section 403(b) Pre-approved Plans: use of basic plan documents by multiple

Adoption Agreement Plans.

(a) Separate Section 403(b) Pre-approved Plan adoption agreements may be

associated with the same Section 403(b) Pre-approved Plan basic plan document.

Adoption agreements of defined benefit plans, defined contribution plans, and § 403(b)

plans may not be associated with the same basic plan document.

(b) A plan that is intended to be a Retirement Income Account and a plan

that is not intended to be a Retirement Income Account may not be combined in in the

same basic plan document.

(3) Number of adoption agreements required.

(a) A Standardized Plan and a Nonstandardized Plan may not be combined

in a single adoption agreement.

53

(b) The following rules apply for a Qualified Pre-approved Plan:

(i) A profit-sharing plan (with or without a § 401(k) arrangement) that does

not include an ESOP feature and a money purchase pension plan that is not a target

benefit plan may use the same adoption agreement; however, separate adoption

agreements are required for ESOPs and target benefit plans.

(ii) An ESOP is permitted to include both profit-sharing and § 401(k)

features in the same adoption agreement; however, an employer that adopts the plan

may not adopt the profit-sharing or § 401(k) features without also adopting the ESOP

portion of the plan.

(iii) An adoption agreement submitted for a defined benefit plan may

include any combination of integrated formulas (that is, formulas that provide for

permitted disparity), non-integrated formulas, and cash balance formulas.

(c) For a Section 403(b) Pre-approved Plan, a single adoption agreement

may be drafted to cover multiple types of Employers (for example, a single adoption

agreement may be drafted to cover a church, a § 501(c)(3) organization, or a public

school).

(4) Number of applications required. A separate application form must be filed

with respect to each adoption agreement submitted. 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 as in

the prior submission.

.07 Separate applications required for Single Document Plans

(1) With respect to a Standardized Plan and a Nonstandardized Plan, a separate

plan and application must be submitted for each plan if it is a Single Document Plan.

(2) For a Qualified Pre-approved Plan, a separate plan and application must be

submitted for each of the following types of Single Document Plans: a target benefit

plan, an ESOP, and a defined benefit plan. A profit-sharing plan (with or without a

§ 401(k) arrangement) that does not include an ESOP and a money purchase pension

plan that is not a target benefit plan may be combined in a single plan and application.

In addition, although an ESOP is permitted to include both profit-sharing and § 401(k)

features in the same plan, an Employer that adopts the plan may not select the profitsharing or § 401(k) features without also selecting the ESOP provisions in the plan.

54

(3) For a Qualified Pre-approved Plan, with respect to a Governmental Plan or a

non-electing church plan, a separate plan and application must be submitted for each

plan. Thus, for example, separate plans and application forms must be submitted for a

Governmental Plan, a plan that is not a Governmental Plan, and a non-electing church

plan.

(4) For a Section 403(b) Pre-approved Plan, a separate plan and application is

required for each Single Document Plan. A Single Document Plan may accommodate

usage by more than one type of Employer; however, a Retirement Income Account plan

must always be filed as a separate Single Document Plan.

.08 Sample Language. Before the Submission Period with respect to a Cycle

begins, the IRS anticipates providing updated Listings of Required Modifications (LRMs)

including sample plan language. Although the sample language is designed for use in

plans that use an adoption agreement format, in order to expedite processing, Providers

should 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. The updated LRMs, when available, may be downloaded at

https://www.irs.gov/Retirement-Plans/Listing-of-Required-Modifications-LRMs.

.09 Operational Compliance List. The Remedial Amendment Period permits a plan

to be amended retroactively to comply with a change in Qualification Requirements or

Section 403(b) Requirements, as applicable; however, a plan must be operated in

compliance with those requirements beginning on the effective date of the change. To

assist Adopting Employers in achieving operational compliance, the IRS provides

annually an Operational Compliance List at https://www.irs.gov/retirementplans/operational-compliance-list to identify changes in those requirements that are

effective during a calendar year. To comply with the Qualification Requirements or

Section 403(b) Requirements, as applicable, however, a plan must comply operationally

with each relevant requirement, even if the requirement is not included on an

Operational Compliance List. Providers may wish to consult the Operational

Compliance List when drafting Interim Amendments.

.10 Material furnished to Adopting Employers. A Provider must furnish each

Adopting Employer with a copy of the approved Pre-approved Plan, copies of any

subsequent amendments, and the most recently issued Opinion Letter for the plan from

the IRS.

.11 Effect of failure to disclose a material fact, misrepresentation of a material fact,

or to accurately provide information. A Provider’s (1) failure to disclose to the IRS a

material fact, (2) misrepresentation of a material fact in the application, or (3) failure to

accurately provide any of the information called for on any form required by this revenue

procedure may result in the inability of Adopting Employers to rely on the Opinion Letter

(for example, if the IRS revokes an Opinion Letter due to the Provider’s failure to

disclose to the IRS a material fact, the Adopting Employer would lose reliance on the

55

Opinion Letter). See section 12.03(7) regarding limitations on reliance. The Provider

may be required by the IRS to immediately notify each Adopting Employer of any of its

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.

.12 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 and/or explanation of how the variables

(options or alternatives) in the Pre-approved Plan interrelate to satisfy the Qualification

Requirements or Section 403(b) Requirements, as applicable. If a letter requesting

changes to the 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 extensive, 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 only be granted for good cause.

.13 Inadequate submissions. The IRS will return, without further action or refunding

of the user fee, plans that are not in substantial compliance with the Qualification

Requirements or Section 403(b) Requirements, as applicable, 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 compliance if, for example, it omits language needed

to comply with a Qualification Requirement or Section 403(b) Requirement, as

applicable, or merely incorporates those 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 filed after the Submission Period, as set forth in section 16, if

resubmitted after the 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.

.14 Nonidentification of questionable issues may cause delay. If a 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 14.12.

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

Letter with respect to amendments made between applicable Submission Periods, and

the Provider should not submit an application between applicable Submission Periods

for an Opinion Letter with respect to plan amendments. Instead, the Provider must

submit a restated plan that incorporates the amendments during the next Submission

Period.

56

SECTION 15. ADDITIONAL REQUIREMENTS FOR MASS SUBMITTERS

.01 Opinion Letters issued to Mass Submitters.

(1) The IRS will, upon request by a Mass Submitter, issue an Opinion Letter

confirming that the form of the Mass Submitter’s plan satisfies the Qualification

Requirements or Section 403(b) Requirements, as applicable. See section 14 for the

instructions for Opinion Letter applications. In the case of a submission of a Preapproved Plan under this revenue procedure, the Mass Submitter’s application also

must be accompanied by applications for an Opinion Letter filed on behalf of 15

unaffiliated Providers, as described in section 4.01(10), that are offering the same plan

for that Cycle on a word-for-word identical basis as set forth in section 15.02, unless the

Mass Submitter has already satisfied this requirement in connection with a previous

application under this revenue procedure involving another Pre-approved Plan pursuant

to section 15.01(2). Any plan submitted by a Mass Submitter must include language

designating the Mass Submitter as agent for the Provider of the plan for purposes of

making plan amendments.

(2) After satisfying the 15-unaffiliated-Providers 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 plan that is word-for-word identical to the Mass

Submitter’s plan (as an identical adopter) or a plan that includes Minor Modifications to

the Mass Submitter’s plan (as a minor modifier adopter). In addition, after satisfying the

15-unaffiliated-Provider requirement for one plan of the Mass Submitter, the Mass

Submitter may submit applications for an Opinion Letter under this section 15.01 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 that uses a Mass Submitter’s plan must obtain an Opinion Letter. In addition

to the applicable requirements in section 14, the Mass Submitter must submit on behalf

of each Provider a completed application form that includes a declaration by the Mass

Submitter under penalty of perjury that the Provider will offer a plan that is word-forword identical to a plan of the Mass Submitter or a plan that includes Minor

Modifications to the Mass Submitter’s plan. If the Provider is offering a plan that is wordfor-word identical (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 15.03(2). The application must be accompanied by the required

user fee as provided in the successors to Rev. Proc. 2023-4 (as updated annually) and

a signed certification that all necessary amendments required by the IRS in order for the

form of the Provider’s plan to satisfy the Qualification Requirements or Section 403(b)

Requirements, as applicable, 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

57

plan).

.03 Flexible Plans and Minor Modifications.

(1) Flexible Plan.

(a) In general. A Provider that adopts a Mass Submitter’s 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 a Provider and the coordination of optional provisions. A Mass

Submitter must bracket and identify the optional provisions when submitting the plan to

the IRS and provide the IRS a written representation describing the choices available to

Providers and the coordination of optional provisions. Thus, the representation must

indicate 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 (or deletion) of a specific optional provision

in a Provider’s plan will automatically result in the inclusion (or deletion) of any other

optional provision, this relationship must be set forth in the Mass Submitter’s

representation. A Flexible Plan may include only optional provisions that meet the

requirements of section 15.03(1)(b), and must be drafted so that the form of any

Provider’s plan satisfies the Qualification Requirements or Section 403(b)

Requirements, as applicable, notwithstanding the inclusion or deletion of optional

provisions. For example, if a Provider’s defined contribution Qualified Pre-approved

Plan includes an optional provision that permits a portion of a participant’s account to be

invested in life insurance, then, under the terms of the Provider’s plan, the application of

the proceeds of the life insurance must meet the requirements of §§ 401(a)(11) and

417. A Flexible Plan adopted by a Provider that differs from the Mass Submitter’s plan

only because the Provider has deleted certain optional provisions from its plan in

conformance with the Mass Submitter’s representation described in this section

15.03(1)(a) is treated as a plan that is word-for-word identical to the Mass Submitter’s

plan. The IRS encourages Mass Submitters to limit the number of optional provisions

described in section 15.03(1)(b)(i) and (ii) that Mass Submitters 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 section 15.03(1)(b). The optional

provisions may be arranged as separate optional articles or sections within a Preapproved Plan or as separate optional provisions within a single article or section. A

Flexible Plan also may include related optional provisions in the adoption agreement.

For example, if a plan document for a Mass Submitter’s 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 are available under the plan it adopts. If the Provider

does not wish to enable Adopting Employers to make loans available under their plans,

58

the Provider would need to delete from the Provider’s plan the optional provision in both

the plan document and the adoption agreement. A Provider may include or delete

optional provisions of a Mass Submitter’s 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 15.03(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 permissible 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 a Provider to include or delete from the Provider’s

version of the plan. However, the plan adopted by the Provider must provide some

method for investing trust assets. Investment provisions are those provisions that

describe the plan’s methods of investing assets, including provisions such as the

availability of loans and investments in insurance contracts or other funding media, and

self-directed investments.

(ii) Administrative provisions. A Mass Submitter may offer a variety of

administrative provisions in its plan for a Provider to include or delete from the

Provider’s version of the plan. However, the plan adopted by the Provider must describe

how the plan is administered. Administrative provisions are those provisions that

describe the administration of the plan, including the powers, duties, and responsibilities

of a plan’s custodian, trustee, administrator, Adopting Employer, and other fiduciaries,

as applicable. Pursuant to section 9.06(14), every Section 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 the plan include the allocation of responsibilities

among fiduciaries (if applicable), the resignation or replacement of fiduciaries, the

claims procedures under the plan, and the record-keeping requirements under the plan.

However, procedural provisions that are required for the form of the plan to satisfy the

Qualification Requirements or Section 403(b) Requirements, as applicable, are not

administrative provisions under this section 15. For example, an administrative provision

does not include a provision regarding the notice to participants required by § 417 and

record-keeping required by regulations under § 401(k) and/or 401(m).

(iii) Cash or Deferred Arrangement. A Mass Submitter of a defined

contribution qualified plan may include a self-contained cash or deferred arrangement

(as defined in § 401(k)) for Providers to include or delete.

(2) Minor Modifications.

(a) A plan that includes Minor Modifications to the Mass Submitter’s plan

must be submitted by the Mass Submitter on behalf of the Provider that will adopt the

modified plan. Subject to sections 15.05 and 16 and the provisions of this section

15.03(2)(a), submissions with respect to Minor Modifications will be reviewed on an

59

expedited basis, and Opinion Letters will be issued to the Provider as soon as possible

(which might be after the issuance of an Opinion Letter to other Providers (see section

17)).

(b) The IRS reserves the right to determine if the plan’s changes are Minor

Modifications (that is, if the changes are not numerous and do not require an in-depth

technical review). If the IRS determines th

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