IRS Revenue Procedure
2002-6

Code Sec. NONE

Status: Modified by 2002-29, Modified by 2002-21


<<FULL TEXT>>

Status: Modified by Notice 2002-1


26 CFR 601.201: Rulings and determination letters.


REV. PROC. 2002-6

TABLE OF CONTENTS

SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE?
.01 Purpose of revenue procedure
.02 Organization of revenue procedure

SECTION 2. WHAT CHANGES HAVE BEEN MADE TO THIS PROCEDURE?
.01 In general
.02 Announcement 2001-77
.03 EGTRRA and CRA
.04 Evidence of eligibility for extended remedial amendment period
.05 Clarification of the definition of a volume submitter plan
.06 Notice to interested parties


PART I. PROCEDURES FOR DETERMINATION LETTER REQUESTS

SECTION 3. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN GUIDANCE UNDER
THIS PROCEDURE?
.01 Types of requests
.02 Areas in which determination letters will not be issued
.03 EGTRRA and CRA

SECTION 4. ON WHAT ISSUES MUST WRITTEN GUIDANCE BE REQUESTED UNDER
DIFFERENT PROCEDURES?
.01 Tax Exempt and Government Entities
.02 Chief Counsel's revenue procedure

SECTION 5. WHAT IS THE GENERAL SCOPE OF A DETERMINATION LETTER?
.01 Scope of this section
.02 Scope of determination letters
.03 Nondiscrimination in amount requirement
.04 Minimum coverage and section 401(a)(26) participation requirements
.05 Nondiscriminatory current availability requirement
.06 Other nondiscrimination requirements
.07 Reliance conditioned on retention of information
.08 Effective availability requirement
.09 Other limits on scope of determination letter
.10 Publication 794

SECTION 6. WHAT IS THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION
LETTERS?
.01 Scope
.02 Qualified trusteed plans
.03 Qualified nontrusteed annuity plans
.04 Complete information required
.05 Complete copy of plan and trust required
.06 Section 9 of Rev. Proc. 2002-4 applies
.07 Separate application required for each single section 414(l) plan
.08 Coverage and nondiscrimination requirements
.09 Prior letters
.10 Reliance on section 19 of Rev. Proc. 2000-20
.11 User fees
.12 Interested party notification and comment
.13 Contrary authority must be distinguished
.14 Employer/employee relationship
.15 Incomplete applications returned
.16 Effect of failure to disclose material fact
.17 Data requirements
.18 Where to file request
.19 Withdrawal of requests
.20 Right to status conference
.21 How to request status conference

SECTION 7. INITIAL QUALIFICATION, ETC.
.01 Scope
.02 Forms
.03 Application for amendments must include copy of plan
.04 Restatements may be required
.05 Controlled groups, etc.

SECTION 8. EMPLOYER RELIANCE ON M&P AND VOLUME SUBMITTER PLANS
.01 Scope
.02 Standardized M&P plans
.03 Nonstandardized M&P plans and volume submitter plans
.04 Other limitations and conditions on reliance
.05 Reliance equivalent to determination letter

SECTION 9. ADVISORY LETTER AND DETERMINATION LETTER FILING PROCEDURES FOR
M&P AND VOLUME SUBMITTER PLANS
.01 Scope
.02 Description of volume submitter program
.03 Definition of volume submitter plan
.04 Incorporation by reference
.05 User fees
.06 Advisory letter for specimen plan
.07 Requests for information
.08 Determination letter for adoption of volume submitter plan
.09 Determination letter for adoption of M&P plan
.10 Required information
.11 Amended plan is treated as an individually designed plan
.12 Requests made prior to the issuance of opinion letter

SECTION 10. MULTIPLE EMPLOYER PLANS
.01 Scope
.02 Option to file for the plan only or for both the plan and
employers maintaining the plan
.03 Where to file
.04 Determination letter sent to each employer who files Form 5300
.05 Addition of employers

SECTION 11. MINOR AMENDMENT OF PREVIOUSLY APPROVED PLAN
.01 Scope
.02 Form 6406
.03 Additional information
.04 Minor amendment procedures may not be used for complex amendments
or GUST letter
.05 EP Determinations has discretion to determine whether use of minor
amendment procedure is appropriate

SECTION 12. TERMINATION OR DISCONTINUANCE OF CONTRIBUTIONS; NOTICE OF
MERGERS, CONSOLIDATIONS, ETC.
.01 Scope
.02 Forms
.03 Supplemental information
.04 Required demonstration of nondiscrimination requirements
.05 Compliance with Title IV of ERISA
.06 Termination prior to time for amending for change in law

SECTION 13. GROUP TRUSTS
.01 Scope
.02 Required information

SECTION 14. AFFILIATED SERVICE GROUPS; LEASED EMPLOYEES
.01 Scope
.02 Types of requests under section 414(m) and section 414(n)
.03 Employer must request the determination under section 414(m) or
section 414(n)
.04 Forms
.05 Employer is responsible for determining status under section
414(m) and section 414(n)
.06 Omission of material fact
.07 Service will indicate whether section 414(m) or section 414(n)
was considered
.08 M&P plans
.09 Required information for section 414(m) determination
.10 Required information for section 414(n) determination

SECTION 15. WAIVER OF MINIMUM FUNDING
.01 Scope
.02 Applicability of Rev. Proc. 94-41
.03 Waiver and determination letter request submitted to EP Technical
.04 Handling of the request
.05 Interested party notice and comment
.06 When waiver request should be submitted

SECTION 16. SECTION 401(h) AND SECTION 420 DETERMINATION LETTERS
.01 Scope
.02 Required information for section 401(h) determination
.03 Required information for section 420 determination


PART II. INTERESTED PARTY NOTICE AND COMMENT

SECTION 17. WHAT RIGHTS TO NOTICE AND COMMENT DO INTERESTED PARTIES HAVE?
.01 Rights of interested parties
.02 Comments by interested parties
.03 Requests for DOL to submit comments
.04 Right to comment if DOL declines to comment
.05 Confidentiality of comments
.06 Availability of comments
.07 When comments are deemed made

SECTION 18. WHAT ARE THE GENERAL RULES FOR NOTICE TO INTERESTED PARTIES?
.01 Notice to interested parties
.02 Time when notice must be given
.03 Content of notice
.04 Procedures for making information available to interested parties
.05 Information to be available to interested parties
.06 Special rules if there are less than 26 participants
.07 Information described in section 6104(a)(1)(D) should not be
included
.08 Availability of additional information to interested parties
.09 Availability of notice to interested parties


PART III. PROCESSING DETERMINATION LETTER REQUESTS

SECTION 19. HOW DOES THE SERVICE HANDLE DETERMINATION LETTER REQUESTS?
.01 Oral advice
.02 Conferences
.03 Determination letter based solely on administrative record
.04 Notice of final determination
.05 Issuance of the notice of final determination

SECTION 20. EXHAUSTION OF ADMINISTRATIVE REMEDIES
.01 In general
.02 Steps for exhausting administrative remedies
.03 Applicant's request for section 7805(b) relief
.04 Interested parties
.05 Deemed exhaustion of administrative remedies
.06 Service must act on appeal
.07 Service must act on section 7805(b) request
.08 Effect of technical advice request

SECTION 21. WHAT EFFECT WILL AN EMPLOYEE PLAN DETERMINATION LETTER HAVE?
.01 Scope of reliance on determination letter
.02 Effect of determination letter on minor plan amendment
.03 Sections 13 and 14 of Rev. Proc. 2002-4 applicable
.04 Effect of subsequent publication of revenue ruling, etc.
.05 Determination letter does not apply to taxability issues

SECTION 22. EFFECT ON OTHER REVENUE PROCEDURES

SECTION 23. EFFECTIVE DATE

SECTION 24. PAPERWORK REDUCTION ACT

DRAFTING INFORMATION

EXHIBIT

APPENDIX SECTIONS 401(h) AND 420 DETERMINATION LETTERS


SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE?

PURPOSE OF REVENUE PROCEDURE

.01 This revenue procedure sets forth the procedures of the various
offices of the Internal Revenue Service for issuing determination letters
on the qualified status of pension, profit-sharing, stock bonus, annuity,
and employee stock ownership plans (ESOPs) under sections 401, 403(a), 409
and 4975(e)(7) of the Internal Revenue Code of 1986, and the status for
exemption of any related trusts or custodial accounts under section
501(a).


ORGANIZATION OF REVENUE PROCEDURE

.02 Part I of this revenue procedure contains instructions for
requesting determination letters for various types of plans and
transactions. Part II contains procedures for providing notice to
interested parties and for interested parties to comment on determination
letter requests. Part III contains procedures concerning the processing of
determination letter requests and describes the effect of a determination
letter.


SECTION 2. WHAT CHANGES HAVE BEEN MADE TO THIS PROCEDURE?

IN GENERAL

.01 This revenue procedure is a general update of Rev. Proc. 2001-6,
2001-1 I.R.B. 194, which contains the Service's general procedures for
employee plans determination letter requests. Most of the changes to Rev.
Proc. 2001-6 involve minor revisions, such as updating citations to other
revenue procedures.


ANNOUNCEMENT 2001-77

.02 In Announcement 2001-77, the Service described several changes to
simplify the employee plans determination letter application procedures.
One of the changes gives plan sponsors the flexibility to request a
determination letter that considers either the form of the plan only or
both the form of the plan and compliance with the minimum coverage and
nondiscrimination requirements. A second change enables adopters of
nonstandardized master and prototype (M&P) plans and volume submitter
specimen plans to rely on the M&P or volume submitter specimen plan's
favorable opinion or advisory letter without having to request individual
determination letters. A third change enables employers that maintain
multiple employer plans to rely on the favorable determination letter
issued for the plan without having to request individual determination
letters. Finally, Announcement 2001-77 provides certain transition rules
that allow plan sponsors to file determination letter applications using
the prior revision of the determination letter application forms.
Announcement 2001-122, 2001-51 I.R.B. 604, extended these transition rules
through March 31, 2002. The changes described in Announcement 2001-77 and
Announcement 2001-155 have been incorporated in this revenue procedure.


EGTRRA AND CRA

.03 The Economic Growth and Tax Relief Reconciliation Act of 2001
(EGTRRA), Pub. L. 107-16, which was enacted on June 7, 2001, includes
numerous changes to the qualified plan rules. Almost all of these changes
are effective in years beginning after December 31, 2001. While many of
the changes are not mandatory, a plan sponsor that chooses to implement an
optional provision of EGTRRA will have to amend its plan to conform plan
provisions to plan operation. Notice 2001-42, 2001-30 I.R.B. 70, provides
that good faith plan amendments for EGTRRA must be adopted no later than
the later of (1) the end of the plan year in which the amendments are
required to be, or are optionally, put into effect or (2) the end of the
GUST <<ENDNOTE 1>> remedial amendment period. Notice 2001-57, 2001-38
I.R.B. 279 provides sample amendments to assist plan sponsors in meeting
this requirement. Notice 2001-42 also provides that until further notice
determination, opinion and advisory letters will not consider and may not
be relied on with respect to the EGTRRA changes. However, an employer's
ability to rely on a favorable determination, opinion or advisory letter
will not be adversely affected by the timely adoption of good faith EGTRRA
plan amendments. Determination letters consider and may be relied on with
respect to the changes to the qualification requirements made by the
Community Renewal Tax Relief Act of 2000 (CRA), Pub. L. 106-554. Section 3
of this revenue procedure has been modified to incorporate this provision
of Notice 2001-42. Section 3 has also been modified to provide that
determination letters consider and may be relied on with respect to the
changes to the qualification requirements made by CRA.


EVIDENCE OF ELIGIBILITY FOR EXTENDED REMEDIAL AMENDMENT PERIOD UNDER
SECTION 19 OF REV. PROC. 2000-20

.04 Section 6 has been modified to require the submission of
appropriate evidence of eligibility for the extension of the remedial
amendment period under section 19 of Rev. Proc. 2000-20 in cases where the
determination letter application is filed after the time the period would
otherwise expire.


CLARIFICATION OF THE DEFINITION OF A VOLUME SUBMITTER PLAN

.05 Section 9.03 is clarified to reflect that the definition of a
volume submitter plan does not include a cash balance or similar defined
benefit plan.


NOTICE TO INTERESTED PARTIES

.06 Proposed amendments to section 1.7476-2 of the Income Tax
Regulations and section 601.201 of the Statement of Procedural Rules,
relating to notice to interested parties, were published in the Federal
Register on January 17, 2001, 66 F.R. 3954. The proposed regulations
provide greater flexibility in the manner in which the notice may be
provided, including use of electronic media. Because the regulations are
proposed to be effective with respect to applications made on or after the
date the regulations are published in the Federal Register as final
regulations, the provisions of this revenue procedure relating to notice
to interested parties have not been amended at this time. However, plan
sponsors may rely on the proposed regulations for guidance pending the
issuance of final regulations.


<<ENDNOTES>>

1/ The term "GUST" refers to the following:

* the Uruguay Round Agreements Act, Pub. L. 103-465;

* the Uniformed Services Employment and Reemployment Rights Act of
1994, Pub. L. 103-353;

* the Small Business Job Protection Act of 1996, Pub. L. 104-188;

* the Taxpayer Relief Act of 1997, Pub. L. 105-34;

* the Internal Revenue Service Restructuring and Reform Act of 1998,
Pub. L. 105-206; and

* the Community Renewal Tax Relief Act of 2000, Pub. L. 106-554.


PART I. PROCEDURES FOR DETERMINATION LETTER REQUESTS

SECTION 3. ON WHAT ISSUES MAY TAXPAYERS REQUEST WRITTEN GUIDANCE UNDER
THIS PROCEDURE?

TYPES OF REQUESTS

.01 Determination letters may be requested on completed and proposed
transactions as set forth in the table below:

Rev. Proc.
Type of Request Forms Section
--------------- ----- ----------
1. INITIAL QUALIFICATION, ETC.
a. Initially-Designed Plans 5300, 7
including collectively Schedule Q (optional)
bargained plans)

b. ESOPs 5300, 5309 7
Schedule Q (optional)

c. Adoptions of Master & 5307, 8
Prototype Plans Schedule Q (optional)

d. Adoptions of Volume 5300, 7
Submitter Plans Schedule Q (optional)

e. Multiple Employer Plans 5300, 10
Schedule Q (optional)

f. Group Trusts Cover letter 13

2. MINOR AMENDMENTS 6406 11

3. TERMINATION
a. In general 5310, 6088, 12
Schedule Q (optional)

b. Multiemployer plan 5300, 6088, 12
covered by PBGC Schedule Q (optional)
insurance

Note: Form 5310-A, Notice of Plan Merger, Consolidation, Spinoff or
Transfer of Plan Assets or Liabilities-Notice of Qualified Separate Lines
of Business generally must be filed not less than 30 days before the
merger, consolidation or transfer of assets and liabilities. The filing of
Form 5310-A will not result in the issuance of a determination letter.

4. SPECIAL PROCEDURES
a. Affiliated Service Group 5300, 14
Status (section 414(m)), Schedule Q (optional)
Leased Employees
(section 414(n))

b. Minimum Funding Waiver 5300, 15
Schedule Q (optional)

c. Section 401(h) 5300, 16
Determination Letters Schedule Q (optional)

d. Section 420 5300, 16
Determination Letters Schedule Q (optional),
Including Other Matters Cover letter, Checklist
Under section 401(a)

e. Section 420 Cover letter, 16
Determination Letters Checklist
Excluding Other Matters
Under section 401(a)

<<END RULING>>



AREAS IN WHICH DETERMINATION LETTERS WILL NOT BE ISSUED

.02 Determination letters issued in accordance with this revenue
procedure do not include determinations on the following issues within the
jurisdiction of the Commissioner, TE/GE:

(1) Issues involving sections 72, 79, 105, 125, 127, 129, 402, 403
(other than 403(a)), 404, 409(l), 409(m), 412, 457, 511 through 515, and
4975 (other than 4975(e)(7)), unless these determination letters are
authorized under section 7 of Rev. Proc. 2002-4, page 127, this Bulletin.

(2) Plans or plan amendments for which automatic approval is granted
pursuant to section 8.05 below.

(3) Plan amendments described below (these amendments will, to the
extent provided, be deemed not to alter the qualified status of a plan
under section 401(a)).

(a) An amendment solely to permit a trust forming part of a plan to
participate in a pooled fund arrangement described in Rev. Rul. 81-100,
1981-1 C.B. 326;

(b) An amendment that merely adjusts the maximum limitations under
section 415 to reflect annual cost-of-living increases, other than an
amendment that adds an automatic cost-of-living adjustment provision to
the plan; and

(c) An amendment solely to include language pursuant to section
403(c)(2) of Title I of the Employee Retirement Income Security Act of
1974 (ERISA) concerning the reversion of employer contributions made as a
result of mistake of fact.


(4) This section applies to determination letter requests with respect
to plans that combine an ESOP (as defined in section 4975(e)(7) of the
Code) with retiree medical benefit features described in section 401(h)
(HSOPs).

(a) In general, determination letters will not be issued with respect
to plans that combine an ESOP with an HSOP with respect to:

(i) whether the requirements of section 4975(e)(7) are satisfied;

(ii) whether the requirements of section 401(h) are satisfied; or

(iii) whether the combination of an ESOP with an HSOP in a plan
adversely affects its qualification under section 401(a).


(b) A plan is considered to combine an ESOP with an HSOP if it contains
ESOP provisions and section 401(h) provisions.

(c) However, an arrangement will not be considered covered by section
3.02(4) of this revenue procedure if, under the provisions of the plan,
the following conditions are satisfied:

(i) No individual accounts are maintained in the section 401(h) account
(except as required by section 401(h)(6));

(ii) No employer securities are held in the section 401(h) account;

(iii) The section 401(h) account does not contain the proceeds
(directly or otherwise) of an exempt loan as defined in section
54.4975-7(b)(1)(iii) of the Pension Excise Tax Regulations; and

(iv) The amount of actual contributions to provide section 401(h)
benefits (when added to actual contributions for life insurance protection
under the plan) does not exceed 25 percent of the sum of: (1) the amount
of cash contributions actually allocated to participants' accounts in the
plan and (2) the amount of cash contributions used to repay principal with
respect to the exempt loan, both determined on an aggregate basis since
the inception of the section 401(h) arrangement.


EGTRRA AND CRA

.03 As provided in Notice 2001-42, until further notice, determination,
opinion and advisory letters will not consider and may not be relied on
with respect to whether a plan satisfies the qualification requirements of
the Code as amended by EGTRRA. However, an employer's ability to rely on a
favorable determination, opinion or advisory letter will not be adversely
affected by the timely adoption of good faith EGTRRA plan amendments.
Determination letters consider and may be relied on with respect to
whether a plan satisfies the qualification requirements of the Code as
amended by CRA.


SECTION 4. ON WHAT ISSUES MUST WRITTEN GUIDANCE BE REQUESTED UNDER
DIFFERENT PROCEDURES?

TE/GE

.01 Other procedures for obtaining rulings, determination letters,
opinion letters, etc., on matters within the jurisdiction of the
Commissioner, TE/GE are contained in the following revenue procedures:

(1) Employee Plans Technical (EP Technical) letter rulings, information
letters, etc.: See Rev. Proc. 2002-4.

(2) M&P plans: See Rev. Proc. 2000-20, as modified by Rev. Proc.
2000-27, Notice 2001-42, and Rev. Proc. 2001-55, 2001-49 I.R.B. 552.

(3) Technical advice requests: See Rev. Proc. 2002-5, page 173, this
Bulletin.


CHIEF COUNSEL'S REVENUE PROCEDURE

.02 For the procedures for obtaining letter rulings, determination
letters, etc., on matters within the jurisdiction of the Division
Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), or
within the jurisdiction of other offices of Chief Counsel, see Rev. Proc.
2002-1, page 1, this Bulletin.


SECTION 5. WHAT IS THE GENERAL SCOPE OF A DETERMINATION LETTER?

SCOPE OF THIS SECTION

.01 This section delineates, generally, the scope of an employee plan
determination letter. It identifies certain qualification requirements,
relating to nondiscrimination, that are considered by the Service in its
review of a plan only at the election of the applicant. This section also
identifies certain qualification requirements that are not considered by
the Service in its review of a plan and with respect to which
determination letters do not provide reliance. This section applies to all
determination letters other than letters issued in response to an
application filed on Form 6406, Short Form Application for Determination
for Minor Amendment of Employee Benefit Plan; letters relating to the
qualified status of group trusts; and letters relating solely to the
requirements of section 420, regarding the transfer of assets in a defined
benefit plan to a health benefit account described in section 401(h). For
additional information pertaining to the scope of reliance on a
determination letter, see sections 9, 10 and 21 of this revenue procedure.


SCOPE OF DETERMINATION LETTERS

.02 In general, employee plans are reviewed by the Service for
compliance with the form requirements (that is, those plan provisions that
are required as a condition of qualification under section 401(a)). In
addition, as described below, certain nondiscrimination requirements are
considered if the applicant specifically requests that they be considered.
Unless otherwise stated, a plan is reviewed on the basis of the
requirements that apply to the plan as of the date the application is
received, except for terminating plans. For terminating plans, the
requirements are those that apply as of the date of termination.


NONDISCRIMINATION IN AMOUNT REQUIREMENTS

.03 Unless the applicant elects otherwise, a plan will not be reviewed
for, and a determination letter may not be relied on with respect to,
whether a plan satisfies one of the safe harbors or the general test for
nondiscrimination in amount of contributions or benefits requirements
under section 1.401(a)(4)-1(b)(2) of the Income Tax Regulations.


MINIMUM COVERAGE AND SECTION 401(a)(26) PARTICIPATION REQUIREMENTS

.04 Unless the applicant elects otherwise, a plan will not be reviewed
for, and a determination letter may not be relied on with respect to, the
minimum coverage requirements of section 410(b). If the applicant
demonstrates that the plan satisfies the coverage requirements of section
410(b), the determination letter may also be relied on with respect to the
participation requirements of section 401(a)(26).


NONDISCRIMINATORY CURRENT AVAILABILITY REQUIREMENT

.05 If the applicant demonstrates that the plan satisfies the coverage
requirements of section 410(b), the determination letter may also be
relied on as to whether the plan satisfies the nondiscriminatory current
availability requirements of section 1.401(a)(4)-4(b) with respect to
those benefits, rights, and features that are currently available (within
the meaning of section 1.401(a)(4)-4(b)(2)) to all employees in the plan's
coverage group. The plan's coverage group consists of those employees who
are treated as currently benefiting under the plan (within the meaning of
section 1.410(b)-3(a)) for purposes of demonstrating that the plan
satisfies the minimum coverage requirements of section 410(b).
Applications will not be reviewed for, and determination letters may not
be relied on with respect to, whether the plan satisfies the requirements
of section 1.401(a)(4)-4(b) with respect to any benefit, right, or feature
other than the ones described above, except those that are specified by
the applicant and for which the applicant has provided information
relevant to the determination.


OTHER NONDISCRIMINATION REQUIREMENTS

.06 An applicant may also ask that the review of its plan consider
certain other nondiscrimination requirements which are described in
Schedule Q (Form 5300), such as whether a definition of compensation
satisfies section 414(s).


RELIANCE CONDITIONED ON RETENTION OF INFORMATION

.07 A favorable determination letter may be relied on with respect to
whether a plan satisfies a coverage or nondiscrimination requirement only
if the application, demonstrations and other information submitted to the
Service in support of a favorable determination is retained by the
applicant.


EFFECTIVE AVAILABILITY REQUIREMENT

.08 In no event will any plan be reviewed to determine, and a
determination letter may not be relied on with respect to, whether any
benefit, right, or feature under the plan satisfies the effective
availability requirement of section 1.401(a)(4)-4(c).


OTHER LIMITS ON SCOPE OF DETERMINATION LETTER

.09 Determination letters may generally be relied on with respect to
whether the timing of a plan amendment (or series of amendments) satisfies
the nondiscrimination requirements of section 1.401(a)(4)-5(a) of the
regulations, unless the plan amendment is part of a pattern of amendments
that significantly discriminates in favor of highly compensated employees.
A favorable determination letter does not provide reliance for purposes of
section 404 and section 412 with respect to whether an interest rate (or
any other actuarial assumption) is reasonable. Furthermore, a favorable
determination letter will not constitute a determination with respect to
the use of the substantiation guidelines contained in Rev. Proc. 93-42,
1993-2 C.B. 540, e.g., a determination letter will not consider whether
data submitted with an application is substantiation quality. Lastly, a
favorable determination letter will not constitute a determination with
respect to whether any requirements of section 414(r), relating to whether
an employer is operating qualified separate lines of business, are
satisfied. However, if an employer is relying on section 414(r) to satisfy
the minimum coverage or section 401(a)(26) participation requirements, and
the applicant so requests, a determination letter will take into account
whether the plan satisfies the nondiscriminatory classification test of
section 410(b)(5)(B). In this case, if the requirements of section 410(b)
or section 401(a)(26) are to be applied on an employer-wide basis under
the special rules for employer-wide plans, a determination letter will
take into account whether the requirements of the applicable special rule
set forth in section 1.414(r)-1(c)(2)(ii) or section 1.414(r)-1(c)(3)(ii)
are met.


PUBLICATION 794

.10 Publication 794, Favorable Determination Letter, contains other
information regarding the scope of a determination letter, including the
requirement that all information submitted with the application be
retained as a condition of reliance. In addition, the specific terms of
each letter may further define its scope and the extent to which it may be
relied upon.


SECTION 6. WHAT IS THE GENERAL PROCEDURE FOR REQUESTING DETERMINATION
LETTERS?

SCOPE

.01 This section contains procedures that are generally applicable to
all determination letter requests. Additional procedures for specific
requests are contained in sections 7 through 16.


QUALIFIED TRUSTEED PLANS

.02 A trust created or organized in the United States and forming part
of a pension, profit-sharing, stock bonus or annuity plan of an employer
for the exclusive benefit of its employees or their beneficiaries that
meets the requirements of section 401 is a qualified trust and is exempt
from federal income tax under section 501(a) unless the exemption is
denied under section 502, relating to feeder organizations, or section
503, relating to prohibited transactions, if, in the latter case, the plan
is one described in section 503(a)(1)(B).


QUALIFIED NONTRUSTEED ANNUITY PLANS

.03 A nontrusteed annuity plan that meets the applicable requirements
of section 401 and other additional requirements as provided under section
403(a) and section 404(a)(2), (relating to deductions of employer
contributions for the purchase of retirement annuities), qualifies for the
special tax treatment under section 404(a)(2), and the other sections of
the Code, if the additional provisions of such other sections are also
met.


COMPLETE INFORMATION REQUIRED

.04 An applicant requesting a determination letter must file the
material required by this revenue procedure with the Employee Plans
Determinations manager (EP Determinations) at the address in section 6.18.
The filing of the application, when accompanied by all information and
documents required by this revenue procedure, will generally serve to
provide the Service with the information required to make the requested
determination. However, in making the determination, the Service may
require the submission of additional information. Information submitted to
the Service in connection with an application for determination may be
subject to public inspection to the extent provided by section 6104.


COMPLETE COPY OF PLAN AND TRUST INSTRUMENT REQUIRED

.05 Except in the case of applications involving master and prototype
plans filed on Form 5307, or minor amendments described in section 11, a
complete copy of the plan and trust instrument is required to be included
with the determination letter application. See sections 7.03 and 7.04 for
what must be included with applications involving plan amendments that are
not minor amendments.


SECTION 9 OF REV. PROC. 2001-4 APPLIES

.06 Section 9 of Rev. Proc. 2002-4 is generally applicable to requests
for determination letters under this revenue procedure.


SEPARATE APPLICATION FOR EACH SINGLE SECTION 414(l) PLAN

.07 A separate application is required for each single plan within the
meaning of section 414(l). This requirement does not pertain to
applications regarding the qualified status of group trusts.


COVERAGE AND NONDISCRIMINATION REQUIREMENTS

.08 An applicant may request that the plan be reviewed to determine
that the ratio percentage test of section 410(b)(1) is satisfied or that
the plan satisfies one of the design-based safe harbors under section
401(a)(4) by completing the appropriate elective lines on Form 5300 or
Form 5307. Schedule Q (Form 5300) may be filed with the application, other
than an application filed on Form 6406, to request consideration of the
general test under section 401(a)(4), the average benefit test of section
410(b)(2), or any of the other requirements described on Schedule Q. The
applicant must include with the application form the material and
demonstrations called for in the instructions to Form 5300 or Form 5307,
and, if applicable, Schedule Q.


PRIOR LETTERS

.09 If the plan has received a favorable determination letter in the
past, the application must include a copy of the latest determination
letter, if available. If the letter is not available, an explanation must
be included with the application.


RELIANCE ON SECTION 19 OF REV. PROC. 2000-20

.10 In general, the remedial amendment period for GUST ends on the
later of February 28, 2002, or the last day of the first plan year
beginning on or after January 1, 2001. Section 19 of Rev. Proc. 2000-20,
as modified, provides an extension of the GUST remedial amendment period
for employers who, by the deadline described in the preceding sentence,
have adopted an M&P or volume submitter plan (a "pre-approved plan") or
certified their intent to adopt a pre-approved plan that has been restated
for GUST. If the requirements for the extension are satisfied, the GUST
remedial amendment period for the employer's plan will not end before the
later of the end of the 12th month beginning after the date on which the
Service issues a GUST opinion or advisory letter for the preapproved plan
or December 31, 2002. As a condition of the extension, a plan that is
eligible for the extension must request a determination letter by the end
of the extended period if a determination letter is required for reliance.
Most adopting employers of M&P plans and many adopting employers of volume
submitter plans will be entitled to at least limited reliance on their
plan's opinion or advisory letter pursuant to section 8 of this revenue
procedure and therefore will not have to request a determination letter as
a condition of the extension. If an employer files an application for the
initial GUST determination letter for a plan in reliance on section 19 of
Rev. Proc. 2000-20 (that is, after the later of February 28, 2002, or the
last day of the first plan year beginning on or after January 1, 2001),
the employer must include with the application evidence of eligibility for
the extension under Rev. Proc. 2000-20. That is, the employer must include
a copy of the prior plan or adoption agreement, including opinion,
advisory and or determination letters, or a copy of a timely completed
certification. The plan sponsor should describe any special circumstances
in a cover letter.


USER FEES

.11 The appropriate user fee, if applicable, must be paid according to
the procedures of Rev. Proc. 2002-8, page 252, this Bulletin. Form 8717,
User Fee for Employee Plan Determination Letter Request, must accompany
each determination letter request.


INTERESTED PARTY NOTIFICATION AND COMMENT

.12 Before filing an application, the applicant requesting a
determination letter must satisfy the requirements of section 3001(a) of
ERISA, and section 7476(b)(2) of the Code and the regulations thereunder,
which provide that an applicant requesting a determination letter on the
qualified status of certain retirement plans must notify interested
parties of such application. The general rules of the Service with respect
to notifying interested parties of requests for determination letters
relating to the qualification of plans involving sections 401 and 403(a)
are set out below in sections 17 and 18 of this revenue procedure.


CONTRARY AUTHORITY MUST BE DISTINGUISHED

.13 If the application for determination involves an issue where
contrary authorities exist, failure to disclose or distinguish such
significant contrary authorities may result in requests for additional
information, which will delay action on the application.


EMPLOYER/EMPLOYEE RELATIONSHIP

.14 The Service ordinarily does not make determinations regarding the
existence of an employer-employee relationship as part of its
determination of the qualification of a plan, but relies on the
applicant's representations or assumptions, stated or implicit, regarding
the existence of such a relationship. The Service will, however, make a
determination regarding the existence of an employer-employee relationship
when so requested by the applicant. In such cases, the application with
respect to the qualification of the plan should be filed in accordance
with the provisions of this revenue procedure, contain the information and
documents in the instructions to the application, and be accompanied by a
completed Form SS-8, Determination of Employee Work Status for Purposes of
Federal Employment Taxes and Income Tax Withholding, and any information
and copies of documents the organization deems appropriate to establish
its status. The Service may, in addition, require further information that
it considers necessary to determine the employment status of the
individuals involved or the qualification of the plan. After the
employer-employee relationships have been determined, EP Determinations
may issue a determination letter as to the qualification of the plan.


INCOMPLETE APPLICATIONS RETURNED

.15 If an applicant requesting a determination letter does not comply
with all the required provisions of this revenue procedure, EP
Determinations, in its discretion, may return the application and point
out to the applicant those provisions which have not been met. The failure
to provide information required by an application, including any
supplemental information required by the instructions for the application,
may result in the application being returned to the applicant as
incomplete. The request will also be returned pursuant to Rev. Proc.
2002-8 if the correct user fee is not attached. If such a request is
returned to the applicant, the 270-day period described in section
7476(b)(3) will not begin to run until such time as the provisions of this
section have been satisfied.


EFFECT OF FAILURE TO DISCLOSE MATERIAL FACT

.16 The Service may determine, based on the application form, the
extent of review of the plan document. A failure to disclose a material
fact or misrepresentation of a material fact on the application may
adversely affect the reliance which would otherwise be obtained through
issuance by the Service of a favorable determination letter. Similarly,
failure to accurately provide any of the information called for on any
form required by this revenue procedure may result in no reliance.


DATA REQUIREMENTS

.17 The applicant is responsible for the accuracy of any factual
representations and conclusions contained in the application. In some
circumstances, applicants may not be able to use precise data in preparing
demonstrations or schedules that may be required to be submitted with the
application. Therefore, the use of estimated data in these demonstrations
and schedules is not prohibited. In addition, the data used may be for a
prior plan year, provided the following conditions are satisfied: (1) the
data is the most recent data available, (2) there is no misstatement or
omission of material fact with respect to such prior year's data, (3)
there has been no material change in the facts (including a change in the
benefits provided under the plan and employee demographics) since such
prior plan year, (4) the same data is used throughout the application, (5)
the data is relevant to the operational effect of the plan provisions that
are under review, and (6) the applicant clearly discloses that prior
year's data is being submitted with the application. The use of estimated
or prior year's data is not a misrepresentation of material fact. A
determination letter that is based on estimated or prior year's data,
however, may not be relied upon to the extent that such data does not
satisfy the substantiation guidelines in Rev. Proc. 93-42. Regardless of
whether the data is actual or estimated, or whether it is for the current
or a prior year, data that is presented in a determination letter
application must reflect any changes in the law that are considered by the
Service in its determination of the plan's qualified status.


WHERE TO FILE REQUEST

.18 Requests for determination letters are to be addressed to EP
Determinations at the following address:

Internal Revenue Service
P.O. Box 192
Covington, KY 41012-0192


Requests shipped by Express Mail or a delivery service should be sent
to:

Internal Revenue Service
201 West Rivercenter Blvd.
Attn: Extracting Stop 312
Covington, KY 41011


WITHDRAWAL OF REQUESTS

.19 The applicant's request for a determination letter may be withdrawn
by a written request at any time prior to the issuance of a final adverse
determination letter. If an appeal to a proposed adverse determination
letter is filed, a request for a determination letter may be withdrawn at
any time prior to the forwarding of the proposed adverse action to the
chief, appeals office. In the case of a withdrawal, the Service will not
issue a determination of any type. A failure to issue a determination
letter as a result of a withdrawal will not be considered a failure of the
Secretary or his delegate to make a determination within the meaning of
section 7476. However, the Service may consider the information submitted
in connection with the withdrawn request in a subsequent examination.
Generally, the user fee will not be refunded if the application is
withdrawn.


RIGHT TO STATUS CONFERENCE

.20 An applicant for a determination letter has the right to a have a
conference with the EP Determinations manager concerning the status of the
application if the application has been pending at least 270 days. The
status conference may be by phone or in person, as mutually agreed upon.
During the conference, any issues relevant to the processing of the
application may be addressed, but the conference will not involve
substantive discussion of technical issues. No tape, stenographic, or
other verbatim recording of a status conference may be made by any party.
Subsequent status conferences may also be requested if at least 90 days
have passed since the last preceding status conference.

HOW TO REQUEST STATUS CONFERENCE

.21 A request for a status conference with the EP Determinations
manager is to be made in writing and is to be sent to the specialist
assigned to review the application or, if the applicant does not know who
is reviewing the application, to the EP Determinations manager at the
address in section 6.18. If, pursuant to section 15, the application for a
determination letter has been submitted to Employee Plans Technical (EP
Technical) together with a request for a waiver of minimum funding, the
request for a status conference should be sent to the actuary assigned to
review the application or to the Actuarial manager, at the address in
section 15.03. In this case, the right to a status conference will be with
the EP Technical Manager.



SECTION 7. INITIAL QUALIFICATION, ETC.

SCOPE

.01 This section contains the procedures for requesting determination
letters for individually-designed defined contribution and defined benefit
plans including employee stock ownership plans in the following
circumstances:

(1) Initial qualification.

(2) Amendment (other than minor amendments described in section 11
below for which Form 6406 is appropriate).

(3) Restatement of plan.

(4) Qualification of a plan in the event of a partial termination.

(5) Change in scope of determination letter. This means that the
applicant has previously received a favorable determination letter for the
plan and now wishes to modify the scope of the letter, for example, by
requesting the Service to review the plan for certain nondiscrimination
requirements that were not within the scope of the earlier letter.

(6) Other circumstances (excluding plan termination) such as a change
in the demographics of the employer or a change in the method of testing
the plan that was used in a demonstration submitted in support of an
earlier application.


FORMS

.02 A determination letter request for the items listed in section 7.01
is made by filing the appropriate form according to the instructions to
the form and any prevailing revenue procedures, notices, and
announcements.

(1) Form 5300, Application for Determination for Employee Benefit Plan,
must be filed to request a determination letter for individually designed
plans, including collectively bargained plans.

(2) Form 5309, Application for Determination of Employee Stock
Ownership Plan, must be filed as an attachment with a Form 5300 (if the
ESOP is collectively bargained), in order to request a determination
whether the plan is an ESOP under section 409 or section 4975(e)(7).

(3) Schedule Q, (Form 5300), Elective Determination Requests, may be
filed as an attachment with Form 5300 and Form 5303.


APPLICATION FOR AMENDMENTS MUST INCLUDE COPY OF PLAN

.03 Because a plan amendment, other than a minor amendment described in
section 11, may affect other portions of a plan so as to cause plan
disqualification, a determination letter issued on such an amendment to a
plan will express an opinion on the entire plan, as amended. Therefore,
the determination letter application must include a copy of the plan and
trust instrument plus all plan amendments made to the date of the
application. The application must also include a statement explaining how
any amendments made since the last determination letter affect the plan or
any other plan maintained by the employer.


RESTATEMENTS MAY BE REQUIRED

.04 A restated plan is required to be submitted if four or more
amendments (excluding amendments making only non-substantive changes) have
been made since the last restated plan was submitted. In addition, the
Service may require restatement of a plan or submission of a working copy
of the plan in a restated format when considered necessary. For example,
restatement may be required when there have been major changes in law. A
restated plan or a working copy of the plan in a restated format generally
must be submitted for a plan that has not previously received a
determination letter that takes into account all requirements of GUST.
However, see section 3.04 of Rev. Proc. 2000-27 for exceptions to this
requirement.


CONTROLLED GROUPS, ETC.

.05 For a controlled group of corporations as defined in section
414(b), trades or businesses under common control as defined in section
414(c), an affiliated service group within the meaning of section 414(m),
and entities utilizing the services of leased employees within the meaning
of section 414(n), the coverage items on the application forms referred to
in this revenue procedure must be completed as though the controlled
group, commonly controlled trades or businesses, affiliated service group,
etc., constitutes a single entity. Leased employees within the meaning of
section 414(n) must be included as employees of the recipient entity
(except in the case of a safe-harbor plan described in section 414(n)(5)).


SECTION 8. EMPLOYER RELIANCE ON M&P AND VOLUME SUBMITTER PLANS

SCOPE

.01 This section describes the conditions under which, and the extent
to which, adopting employers of M&P and volume submitter plans may rely on
favorable opinion or advisory letters without having to request individual
determination letters. Rev. Proc. 2000-20 describes the requirements that
apply to M&P plans and the procedures for requesting opinion letters on
M&P plans. Section 9 of this revenue procedure describes the requirements
that apply to volume submitter plans and the procedures for requesting
advisory letters on volume submitter plans. Section 9 also describes the
procedures for requesting determination letters on M&P and volume
submitter plans for adopting employers who need to obtain a determination
letter in order to have reliance or who otherwise wish to obtain a
determination letter, for example to expand the scope of reliance.


STANDARDIZED M&P PLANS

.02 An employer adopting a standardized or paired M&P plan may rely on
that plan's opinion letter, except as provided in section 8.02(1) through
(3) and section 8.04 below, if the sponsor of such plan or plans has a
currently valid favorable opinion letter, the employer has followed the
terms of the plan(s), and the coverage and contributions or benefits under
the plan(s) are not more favorable to highly compensated employees (as
defined in section 414(q)) than for other employees.

(1) Except in the case of a combination of paired plans, an employer
may not rely on an opinion letter for a standardized plan with respect to
the requirements of sections 415 and 416, without obtaining a
determination letter, if the employer maintains at any time, or has
maintained at any time, another plan, including a standardized plan, that
was qualified or determined to be qualified covering some of the same
participants. For this purpose, a plan that has been properly replaced by
the adoption of a standardized plan is not considered another plan. The
plan that has been replaced and the standardized plan must be of the same
type (e.g., both money purchase pension plans) in order for the employer
to be able to rely on the standardized plan with respect to the
requirements of sections 415 and 416 without obtaining a determination
letter. In addition, an employer that adopts a standardized defined
contribution plan will not be considered to have maintained another plan
merely because the employer has maintained another defined contribution
plan(s), provided such other plan(s) 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(s) as of
any date within a limitation year of the standardized plan. Likewise, an
employer that adopts a standardized defined contribution plan that is
first effective on or after the effective date of the repeal of section
415(e) will not be considered to have maintained another plan merely
because the employer has maintained a defined benefit plan(s), provided
the defined benefit plan(s) has been terminated prior to the effective
date of the standardized defined contribution plan.

(2) An employer that has adopted a standardized defined benefit plan
may rely on an opinion letter with respect to the requirements of section
401(a)(26) only if the plan satisfies the requirements of section
401(a)(26) with respect to its prior benefit structure or is deemed to
satisfy section 401(a)(26) under the regulations. However, an employer may
request a determination letter if the employer wishes to have reliance as
to whether the plan satisfies section 401(a)(26) with respect to its prior
benefit structure.

(3) An employer that adopts a standardized plan may not rely on an
opinion letter with respect to: (a) whether the timing of any amendment to
the plan (or series of amendments) satisfies the nondiscrimination
requirements of section 1.401(a)(4)-5(a), except with respect to plan
amendments granting past service that meet the safe harbor described in
section 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 plan satisfies the effective availability requirement
of section 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 an opinion letter with
respect to whether a benefit, right, or feature that is prospectively
eliminated satisfies the current availability requirements of section
1.401(a)(4)-4 of the regulations. Such an employer may request a
determination letter if the employer wishes to have reliance as to whether
the prospectively eliminated benefit, right, or feature satisfies the
current availability requirements.


NONSTANDARDIZED M&P PLANS AND VOLUME SUBMITTER PLANS

.03 An employer adopting a nonstandardized M&P or volume submitter plan
may rely on that plan's opinion or advisory letter as described below if
the employer's plan is identical to an approved M&P or specimen plan with
a currently valid favorable opinion or advisory letter, the employer has
chosen only options permitted under the terms of the approved plan, and
the employer has followed the terms of the plan. These employers can
forego filing Form 5307 and rely on the plan's favorable opinion or
advisory letter with respect to the qualification requirements, except as
provided in section 8.03(1) through (4) and section 8.04 below.

(1) Except as provided in section 8.03(2) and (3), adopting employers
of nonstandardized M&P plans and volume submitter plans may not rely on a
favorable opinion or advisory letter with respect to the requirements of:

(a) sections 401(a)(4), 401(a)(26), 401(l), 410(b) or 414(s); or

(b) if the employer maintains or has ever maintained another plan
covering some of the same participants, sections 415 or 416.


For this purpose, whether an employer maintains or has ever maintained
another plan will be determined using principles consistent with section
8.02(1) above.

(2) Adopting employers of nonstandardized M&P plans and volume
submitter plans may rely on the opinion or advisory letter with respect to
the requirements of sections 410(b) and 401(a)(26) (other than the section
401(a)(26) requirements that apply to a prior benefit structure) if 100
percent of all nonexcludable employees benefit under the plan.

(3) Nonstandardized M&P plans must give adopting employers the option
to elect a safe harbor allocation or benefit formula and a safe harbor
compensation definition. Adopting employers of nonstandardized M&P plans
that elect a safe harbor allocation or benefit formula and a safe harbor
compensation definition may rely on an opinion letter with respect to the
nondiscriminatory amounts requirement under section 401(a)(4). Adopting
employers of nonstandardized M&P plans that are section 401(k) and/or
section 401(m) plans may rely on an opinion letter with respect to whether
the form of the plan satisfies the actual deferral percentage test of
section 401(k)(3) or the actual contribution percentage test of section
401(m)(2) if the employer elects to use a safe harbor definition of
compensation in the test. Adopting employers of nonstandardized M&P plans
described in section 401(k)(11) and/or section 401(m)(12) may rely on an
opinion letter with respect to whether the form of the plan satisfies
these requirements unless the plan provides for the safe harbor
contribution to be made under another plan.

(4) Adopting employers of nonstandardized safe harbor M&P plans (which
require adopting employers to elect a safe harbor allocation or benefit
formula) are entitled to the same reliance as adopting employers of
nonstandardized plans except that they have automatic reliance with
respect to the nondiscriminatory amounts requirement if they elect a safe
harbor definition of compensation.


OTHER LIMITATIONS AND CONDITIONS ON RELIANCE

.04 The following conditions and limitations apply with respect to
standardized and nonstandardized M&P plans as well as volume submitter
plans.

(1) An adopting employer of an M&P or volume submitter plan can rely on
a favorable opinion or advisory letter only if the letter has taken into
account the requirements of GUST and the plan has been amended to the
extent necessary to comply with the requirements of section 314(e) of CRA,
relating to changes to the definition of compensation under sections
414(s) and 415(c)(3). In addition, if the opinion or advisory letter is a
"GUST I" letter (as defined in Rev. Proc. 2000-27, 2000-26 I.R.B. 1272),
the plan must have been