rp-05-66.pdf

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Part III

Administrative, Procedural, and Miscellaneous

26 CFR 601.201: Rulings and determination letters
(Also, Part I, §§ 401; 1.401(b)-1.)

Rev. Proc. 2005-66

Table of Contents

PART I – OVERVIEW

SECTION 1. PURPOSE
SECTION 2. BACKGROUND
SECTION 3. CHANGES FROM DRAFT REVENUE PROCEDURE IN
ANNOUNCEMENT 2004-71

PART II – ALL PLANS

SECTION 4. CUMULATIVE LIST OF CHANGES IN PLAN QUALIFICATION
REQUIREMENTS
SECTION 5. ADOPTION OF INTERIM PLAN AMENDMENTS AND
EXTENSION OF THE REMEDIAL AMENDMENT PERIOD
SECTION 6. PLAN AMENDMENTS AND OPERATIONAL REQUIREMENTS
UNDER FIVE YEAR AND SIX YEAR REMEDIAL AMENDMENT CYCLES
SECTION 7. EXTENSION OF EGTRRA REMEDIAL AMENDMENT PERIOD
SECTION 8. PLAN TERMINATION

PART III – INDIVIDUALLY DESIGNED PLANS

SECTION 9. ESTABLISHMENT OF FIVE-YEAR REMEDIAL AMENDMENT
CYCLES FOR INDIVIDUALLY DESIGNED PLANS
SECTION 10. EXCEPTIONS TO THE GENERAL RULE FOR DETERMINING
A PLAN’S FIVE-YEAR REMEDIAL AMENDMENT CYCLE
SECTION 11. RULES FOR DETERMINING FIVE-YEAR REMEDIAL
AMENDMENT CYCLE IN CASES OF MERGER OR ACQUISITION, CHANGE
IN PLAN SPONSORSHIP, OR PLAN SPIN-OFF
SECTION 12. EXTENSION OF THE EGTRRA REMEDIAL AMENDMENT
PERIOD AND SCHEDULE OF NEXT FIVE-YEAR REMEDIAL AMENDMENT
CYCLE
SECTION 13. ON-CYCLE FILING FOR DETERMINATION LETTERS
SECTION 14. OFF-CYCLE FILING FOR DETERMINATION LETTERS

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SECTION 15. OPENING OF DETERMINATION LETTER PROGRAM FOR
INITIAL REMEDIAL AMENDMENT CYCLE FOR INDIVIDUALLY DESIGNED
PLANS

PART IV – PRE-APPROVED PLANS

SECTION 16. ESTABLISHMENT OF SIX-YEAR AMENDMENT/APPROVAL
CYCLE FOR PRE-APPROVED PLANS
SECTION 17. ELIGIBILITY FOR SIX-YEAR AMENDMENT/APPROVAL
CYCLE
SECTION 18. EXTENSION OF THE EGTRRA REMEDIAL AMENDMENT
PERIOD AND SCHEDULE OF NEXT SIX-YEAR REMEDIAL AMENDMENT
CYCLE
SECTION 19. OPTION TO PERMIT ADOPTING EMPLOYER TO AMEND
M&P PLAN AND REMAIN IN SIX-YEAR REMEDIAL AMENDMENT CYCLE
SECTION 20. OFF-CYCLE FILING
SECTION 21. EFFECT ON OTHER DOCUMENTS

Part I - Overview

SECTION 1. PURPOSE

.01 This revenue procedure establishes a system of cyclical remedial
amendment periods under § 401(b) of the Internal Revenue Code (Code) for
individually designed and pre-approved qualified plans.

(1) Under this system, every individually designed plan qualified under §
401(a) has a regular, five-year remedial amendment cycle. The cycles are
staggered and spread over five-year periods. That is, the cycles commence in
different years for different plans within a five-year period, so that different
plans have different cycles. The effect of this system is that plan sponsors
need to apply for new determination letters generally only once every five
years;

(2) In addition, under this system, every pre-approved plan (that is, every
master and prototype (M&P) and volume submitter plan), generally has a
regular, six-year remedial amendment cycle. As a result, sponsors,
practitioners, and adopters of pre-approved plans generally need to apply for
new opinion, advisory, or determination letters only once every six years. Pre-
approved defined contribution plans have different six-year cycles than pre-
approved defined benefit plans. Thus, the same six-year remedial
amendment cycle applies with respect to all pre-approved defined contribution
plans, and a separate six-year remedial amendment cycle applies with respect
to all pre-approved defined benefit plans. Also, this revenue procedure

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provides rules for adopting employers to adopt a pre-approved plan after the
review process is completed.

.02 This revenue procedure provides that on February 1, 2006, the Service will
begin to accept applications for determination letters for individually designed
plans that take into account the requirements of the Economic Growth and Tax
Relief Reconciliation Act of 2001, Pub. L. 107-16 (EGTRRA), and other items
that will be identified on the 2005 Cumulative List of Changes in Plan
Qualification Requirements.

.03 The system for staggered five-year remedial amendment cycles and the
system for six-year amendment/approval cycles are established pursuant to the
Commissioner’s authority under § 401(b) of the Code and its underlying
regulations to extend the remedial amendment period, and pursuant to the
Commissioner’s authority under § 7805(b) to establish the effective date of any
rule or regulation. As a result, sponsors, practitioners, and plan sponsors submit
their plan only once for an opinion, advisory, or determination letter that rules on
all amendments adopted and made effective within the applicable remedial
amendment cycle.

.04 This revenue procedure also further extends the EGTRRA remedial
amendment period for both individually designed and pre-approved plans.

(1) The EGTRRA remedial amendment period for individually designed plans is
extended to the end of the initial applicable five-year remedial amendment cycle
as provided in the chart found in section 12.01. Therefore, plan sponsors may
avoid unnecessarily filing two determination letter applications by waiting to file
their EGTRRA determination letter applications until the twelve-month period
preceding the end of the plan’s initial applicable five-year remedial amendment
cycle;

(2) The EGTRRA remedial amendment period for pre-approved plans is
extended to the end of the initial applicable six-year remedial amendment cycle
as provided in section 18.01. Plan sponsors or practitioners maintaining non-
mass submitter plans, as well as word-for-word identical adopters and minor
modifiers, have until January 31, 2006, the end of the initial applicable remedial
amendment cycle submission period (as stated in section 23 of Rev. Proc. 2005-
16, 2005-10 I.R.B. 674), to submit their defined contribution M&P and volume
submitter plans for review. This revenue procedure also extends the October 31,
2005 submission deadline set forth in Announcement 2005-36 to January 31,
2006, for sponsors and practitioners maintaining mass submitter plans and
national sponsors who submit applications for defined contribution M&P and
volume submitter plans.

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SECTION 2. BACKGROUND

.01 Section 401(b) of the Code provides a remedial amendment period during
which a plan may be amended retroactively to comply with the Code's
qualification requirements. Section 1.401(b)-1 of the Income Tax Regulations
describes the disqualifying provisions that may be amended retroactively and the
remedial amendment period during which retroactive amendments may be
adopted. The regulations also grant the Commissioner the discretion to
designate certain plan provisions as disqualifying provisions and to extend the
remedial amendment period.

.02 Section 1.401(b)-1 provides that a plan that fails to satisfy the requirements
of § 401(a) solely as a result of a disqualifying provision defined under §
1.401(b)-1(b) need not be amended to comply with those requirements until the
last day of the remedial amendment period with respect to the disqualifying
provision, provided the amendment is made retroactively effective to the
beginning of the remedial amendment period. Under § 1.401(b)-1(b)(1), a
disqualifying provision includes a provision of a new plan, the absence of a
provision from a new plan, or an amendment to an existing plan which 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. Under § 1.401(b)-1(b)(3), a disqualifying provision includes a plan
provision designated, at the Commissioner's discretion, as a disqualifying
provision that either (i) results in the failure of the plan to satisfy the qualification
requirements of the Code by reason of a change in those requirements; or (ii) is
integral to a qualification requirement of the Code that has been changed. For
this purpose § 1.401(b)-1(c)(1) provides that a disqualifying provision includes
the absence from a plan of a provision required by or, if applicable, integral to the
applicable change in the qualification requirements of the Code, if the plan was in
effect on the date the change in those requirements became effective with
respect to the plan. Under § 1.401(b)-1(c)(3), the Commissioner may impose
limits and provide additional rules regarding the amendments that may be made
with respect to disqualifying provisions described in § 1.401(b)-1(b)(3).

.03 For a disqualifying provision of a new plan described in § 1.401(b)-1(b)(1),
the remedial amendment period begins on the date the plan is put into effect and,
in the case of a plan maintained by one employer, ends on the later of the due
date (including extensions) for filing the employer's tax return for the taxable year
in which the plan is put into effect or the last day of the plan year in which the
plan is put into effect. A new plan maintained by more than one employer need
not be amended until the last day of the tenth month following the last day of the
plan year that includes the date the plan is put into effect.

.04 For a disqualifying provision that is an amendment to an existing plan
described in § 1.401(b)-1(b)(1), the remedial amendment period begins on the

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earlier of the date the plan amendment is adopted or put into effect and, in the
case of a plan maintained by one employer, ends on the later of the due date for
filing the employer's tax return (including extensions) for the taxable year in which
the amendment is adopted or effective (whichever is later) or the last day of the
plan year in which the amendment is adopted or effective (whichever is later). In
the case of an amendment to an existing plan maintained by more than one
employer, the plan need not be amended until the last day of the tenth month
following the last day of the plan year in which the amendment is adopted or
effective (whichever is later).

.05 For a disqualifying provision described in § 1.401(b)-1(b)(3), the remedial
amendment period begins on the date on which the change becomes effective
with respect to the plan or, in the case of a provision that is integral to a
qualification requirement that has been changed, the first day on which the plan
is operated in accordance with the provision as amended. In the case of a plan
maintained by one employer, the remedial amendment period for a disqualifying
provision described in § 1.401(b)-1(b)(3) ends on the later of (1) the due date
(including extensions) for filing the income tax return for the employer's taxable
year that includes the date on which the remedial amendment period begins or
(2) the last day of the plan year that includes the date on which the remedial
amendment period begins. A plan maintained by more than one employer need
not be amended until the last day of the tenth month following the last day of the
plan year in which the remedial amendment period begins.

.06 Section 1.401(b)-1(f) provides that the Commissioner may extend the
remedial amendment period at his discretion.

.07 Notice 2001-42, 2001-2 C.B. 70, provides a remedial amendment period
under § 401(b), ending no earlier than the end of the 2005 plan year, in which
any needed retroactive remedial plan amendments for EGTRRA must be
adopted (the EGTRRA remedial amendment period). The availability of the
EGTRRA remedial amendment period is conditioned on the timely adoption of
required good faith EGTRRA plan amendments. In general, a good faith
EGTRRA plan amendment is adopted timely if it is adopted by the later of the
end of the plan year that includes the effective date of the EGTRRA change or
the end of the plan’s GUST remedial amendment period.
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Notice 2001-42 further

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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.

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provides that until further notice, determination 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 letter will not be adversely affected by
the timely adoption of good faith EGTRRA plan amendments.
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.08 The end of the EGTRRA remedial amendment period is also the last day on
which retroactive remedial amendments may be adopted with respect to the
requirements of the final regulations under § 401(a)(9) of the Code (required
minimum distributions), Rev. Rul. 2001-62, 2001-2 C.B. 632 (applicable mortality
table) and Rev. Rul. 2002-27, 2002-1 C.B. 925 (deemed section 125
compensation). Except with respect to the requirements of the final § 401(a)(9)
regulations for defined benefit plans, the availability of the remedial amendment
period with respect to the three requirements is conditioned on the adoption of
plan amendments by the time specified in the applicable guidance (or, in the
case of the final § 401(a)(9) regulations published on April 17, 2002 with respect
to defined contribution plans, in Rev. Proc. 2002-29, 2002-2 C.B. 1176, as
modified by Rev. Proc. 2003-10, 2003-2 I.R.B. 259).

.09 Rev. Proc. 2004-25, 2004-16 I.R.B. 791, extends the remedial amendment
period with respect to disqualifying provisions described in § 1.401(b)-1(b)(1) that
are put into effect (in the case of new plans) or adopted (in the case of existing
plans) after December 31, 2001, to the end of the EGTRRA remedial amendment
period. The effect of Rev. Proc. 2004-25 is to ensure that plan sponsors do not
need to apply for more than one determination letter during the EGTRRA
remedial amendment period simply because they have put a plan into effect or
adopted voluntary plan amendments after December 31, 2001. The revenue
procedure does not extend any other existing plan amendment or determination
letter submission deadlines, such as the deadline for adoption of good faith plan
amendments for EGTRRA or the final § 401(a)(9) regulations.

.10 In Announcement 2004-32, 2004-18 I.R.B. 860, the Service announced its
decision to implement a system of five-year staggered remedial amendment
periods under § 401(b) of the Code for individually designed plans. The Service
also announced that it was considering implementation of a system of six-year
amendment/approval cycles for pre-approved plans. These announcements
were the outcome of the Service’s comprehensive review of its policies and
procedures for issuing determination letters on the qualified status of retirement

The GUST remedial amendment period generally ended on the later of February 28, 2002, or the
end of a plan’s 2001 plan year. However, for certain plans eligible for an extended GUST
remedial amendment period under Rev. Proc. 2000-20, 2000-1 C.B. 553, the period generally
ended on September 30, 2003.

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Section 3.03 of Rev. Proc. 2005-6, 2005-1 I.R.B. 200, provides that until further notice, a
determination letter 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.

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plans. As part of that review, the Service considered public comments on two
white papers on the future of the determination letter program which the Service
published in 2001 and 2003 (that is, Announcement 2001-83, 2001-2 C.B. 205
and Announcement 2003-32, 2003-1 C.B. 933).

.11 In Announcement 2004-33, 2004-18 I.R.B. 862, the Service published for
comment a draft revenue procedure containing the procedures for issuing
opinion and advisory letters for pre-approved plans. In the announcement, the
Service also asked for comments on its proposal to implement a system of six-
year amendment/approval cycles for pre-approved plans. After receiving
favorable comments in response to Announcement 2004-33, the Service has
decided to proceed with implementation of this system in conjunction with the
implementation of the five-year staggered remedial amendment period system
for individually designed plans. This revenue procedure implements both
systems, effective with the opening of the determination, opinion, and advisory
letter programs for EGTRRA.

.12 In Announcement 2004-71, 2004-40 I.R.B. 569, the Service published for
comment a draft revenue procedure which consisted of a description of the five-
year remedial amendment cycles for individually designed plans and a
description of the procedures for implementing the six-year amendment/approval
cycle for pre-approved plans.

.13 In Notice 2004-84, 2004-52 I.R.B. 1030, the Service published the 2004
Cumulative List of Changes in Plan Qualification Requirements which contains
qualification requirements for defined contribution pre-approved plans to be used
for their first submission under the six-year remedial amendment cycle.

.14 In Rev. Proc. 2005-16, 2005-10 I.R.B. 674, the Service announced the
opening of the initial six-year remedial amendment cycle for defined contribution
pre-approved plans. As of February 17, 2005, the Service began to accept
applications for opinion and advisory letters for defined contribution pre-approved
plans which take into account the qualification requirements set forth in the 2004
Cumulative List. The revenue procedure also contains the rules for issuing
opinion and advisory letters for pre-approved plans.

.15 In Announcement 2005-36, 2005-21 I.R.B. 1095, the Service announced the
submission deadline for sponsors and practitioners maintaining defined
contribution mass submitter and national sponsor plans for the initial six-year
remedial amendment cycle is October 31, 2005.

SECTION 3. CHANGES FROM DRAFT REVENUE PROCEDURE IN
ANNOUNCEMENT 2004-71

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.01 Announcement 2004-71 contained a draft revenue procedure setting forth
the rules and procedures for both the five-year remedial amendment cycle for
individually designed plans and six-year amendment/approval cycle for pre-
approved plans. The Service sought public comment before finalizing these
rules and procedures. This revenue procedure retains much of the original
substance of the draft revenue procedure but the revenue procedure has been
restructured (that is, Part II applies to all plans) and minor revisions and clarifying
language have been added. The most significant of the changes are listed
below.

.02 The application and extension of the remedial amendment period under §
401(b) to the end of the remedial amendment cycle has been expanded to
include pre-approved plans, as well as individually designed plans. In addition,
the EGTRRA remedial amendment period is extended to the end of the initial six-
year remedial amendment cycle. (sections 5, 16, 18)

.03 When a plan qualification requirement changes either due to a statutory
change, a regulation, or other published guidance, causing a plan to no longer be
qualified, a timely adopted interim amendment will generally be required. Any
other change to a plan must also be reflected in a timely adopted plan
amendment. If the timely adopted plan amendment (including any required
interim amendment) does not satisfy the qualification requirements, then a
remedial amendment must be adopted by the end of the remedial amendment
cycle. (sections 5, 6)

.04 In addition to changes and requirements identified in each year’s Cumulative
List of Changes in Plan Qualification Requirements, the Service will consider in
its review of any opinion, advisory or determination letter application all
qualification requirements in effect, or guidance published, before the issuance of
the Cumulative Lists. (section 4.05)

.05 This revenue procedure provides that the submission deadline for minor
modifier placeholder applications and word-for-word identical adopter
applications is January 31, 2006. In addition, the January 31, 2006 submission
deadline also applies to mass submitter sponsors and practitioners and national
sponsors maintaining defined contribution pre-approved plans for the initial six-
year remedial amendment cycle (that is, the EGTRRA remedial amendment
period). (section 18.02)

.06 Rather than Cycle A, the remedial amendment cycle for multiemployer plans
is Cycle D and the remedial amendment period for multiple employer plans is
Cycle B. (sections 10.02, 10.03)

.07 The election offered to members of a controlled group under § 414(b) or (c)
or an affiliated service group under § 414(m) is available only in situations where

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there is more than one plan sponsored by the members of the controlled group or
affiliated service group. (section 10.06)

.08 The revenue procedure clarifies the eligibility rules for an employer who
qualifies for the six-year remedial amendment/approval cycle. (section 17)

.09 This revenue procedure provides guidance for filing procedures for an
employer who amends an M&P plan but remains in the six-year remedial
amendment/approval cycle as provided in section 24.02 of Rev. Proc. 2005-16,
except under limited circumstances. (section 19)

.10 An adopting employer of a pre-approved plan who amends the approved
plan document to incorporate a type of plan not permitted in the pre-approved
plan program (that is, a type listed in sections 6.03 and 16.02 of Rev. Proc. 2005-
16) or adopts an individually designed plan whose underlying plan document is
not based upon a pre-approved plan will remain in the six-year remedial
amendment cycle in effect on the date of such amendment or adoption, but will
then shift to the five-year remedial amendment cycle for individually designed
plans. Thus, the subsequent five-year remedial amendment cycle that ends after
the closing of the six-year remedial amendment cycle in effect on the date of
such amendment or adoption will be determined under Part III of this revenue
procedure applicable to individually designed plans. (section 17.09(2))

.11 An employer who amends a pre-approved plan to such an extent that the
Service determines the plan falls under section 24.03 of Rev. Proc. 2005-16 will
be considered an individually designed plan for the current and future remedial
amendment cycles. Thus, the remedial amendment cycle in which the employer
impermissibly amends the pre-approved plan and subsequent remedial
amendment cycles will be determined under Part III of this revenue procedure.
(section 17.09(3))

Part II – All Plans

SECTION 4. CUMULATIVE LIST OF CHANGES IN PLAN QUALIFICATION
REQUIREMENTS

.01 The Service intends to publish annually a Cumulative List of Changes in
Plan Qualification Requirements (Cumulative Lists). The Cumulative Lists are
intended to identify, on a year-by-year basis, all changes in the qualification
requirements resulting from changes in statutes, or from regulations or other
guidance published in the Internal Revenue Bulletin that are required to be taken
into account in the written plan document.

.02 The 2004 Cumulative List (that is, Notice 2004-84) was issued in anticipation
of the opening of the EGTRRA opinion and advisory letter program for defined

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contribution pre-approved plans. The target date for publication of the
Cumulative List is mid-November of each year.

.03 Each annual Cumulative List identifies changes in the qualification
requirements of the Code as well as items of published guidance relating to the
plan qualification requirements, such as regulations and revenue rulings, that will
be considered by the Service in its review of plans whose submission period
(whether for an opinion or advisory letter in the case of a pre-approved plan, or
for a determination letter in the case of an individually designed plan) begins on
February 1st following issuance of the Cumulative List. For example, sponsors
or practitioners maintaining non-mass submitter defined contribution pre-
approved plans have until January 31, 2006 to submit opinion and advisory letter
applications. The Service will review these plans based upon the 2004
Cumulative List. Similarly, Cycle A individually designed plans will be submitted
for determination letters between February 1, 2006 and January 31, 2007. The
Service will review these plans on the basis of the Cumulative List that is
expected to be issued in the latter part of 2005.

.04 The Service will not consider in its review of any opinion, advisory or
determination letter application any qualification change that becomes effective,
any guidance published, or any statutes enacted, after the issuance of the
applicable Cumulative List (unless the item has been identified in that Cumulative
List). Thus, an opinion, advisory or determination letter may not be relied on for
statutory changes enacted, or guidance published, after the applicable
Cumulative List unless so identified.

.05 The Service will, however, consider in its review of any opinion, advisory or
determination letter application all qualification requirements in effect, or
guidance published before the issuance of the applicable Cumulative List
whether or not included in that Cumulative List. Thus, an opinion, advisory or
determination letter may be relied on for statutory changes enacted, or guidance
published, before the applicable Cumulative List whether or not identified.

SECTION 5. ADOPTION OF INTERIM PLAN AMENDMENTS AND
EXTENSION OF THE REMEDIAL AMENDMENT PERIOD

.01 Designation of disqualifying provision. Unless otherwise provided in future
guidance, in addition to the plan provisions designated as disqualifying provisions
subject to the EGTRRA remedial amendment period as described in sections
2.07, 2.08, and 2.09 of this revenue procedure, a plan provision is designated as
a disqualifying provision under § 1.401(b)-1(b)(3) if the provision either –

(1) results in the failure of the plan to satisfy the qualification requirements
of the Internal Revenue Code by reason of a change in those requirements that
is effective after December 31, 2001; or

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(2) is integral to a qualification requirement of the Internal Revenue Code
that has been changed effective after December 31, 2001 but only if the
provision is integral to a plan provision that is a disqualifying provision under
section 5.01(1) with respect to the plan.

.02 A change in a qualification requirement includes a statutory change or a
change in the requirements provided in regulations or other guidance published
in the Internal Revenue Bulletin. For purposes of section 5.01, a disqualifying
provision includes the absence from a plan of a provision required by or, if
applicable, integral to the applicable change in the qualification requirements of
the Code.

.03 This section 5.03 extends the remedial amendment periods for disqualifying
provisions described in § 1.401(b)-1(b)(1) that would otherwise apply under §
1.401(b)-1 to the end of the remedial amendment cycles described in section
6.01 if the disqualifying provision was a provision of, or absence of a provision
from, a new plan and the plan was intended, in good faith, to be qualified. The
same extension of the remedial amendment period applies to a disqualifying
provision (including a disqualifying provision described in section 5.01) in the
case where the employer adopts an amendment to an existing plan and the
amendment was adopted timely and in good faith with the intent of maintaining
the qualified status of the plan. In addition, the same extension of the remedial
amendment period applies to a disqualifying provision described in section 5.01
in the case where the employer (or sponsor or practitioner, if applicable)
reasonably and in good faith determines during the period when an interim
amendment to reflect a qualification change would otherwise be required under
section 5.05 that no amendment is required because the qualification change
does not impact provisions of the written plan document. Thus, for example, if a
sponsor, practitioner, or employer makes such a determination and the Service in
its review of the opinion, advisory, or determination letter application finds that an
amendment is required, the plan would still be eligible for the five or six-year
remedial amendment cycle to correct the disqualifying provision as described in
section 5.01. The Service will make the final determination in all cases as to
whether the adoption of an interim amendment or the absence of an interim
amendment was reasonable and in good faith.

.04 A qualified plan must be operated in accordance with written plan
documents. Thus, when there are statutory or regulatory changes with respect to
plan qualification requirements that will impact provisions of the written plan
document, the adoption of an interim amendment will generally be required by
the deadline set forth in section 5.05. The Service intends to concurrently
identify statutory and regulatory changes to facilitate compliance with this
requirement.

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.05 The deadline for the timely adoption of an interim or discretionary
amendment with respect to any plan is determined as follows:

(1) An employer (or a sponsor or a practitioner, if applicable) will be considered
to have timely adopted a plan amendment with respect to a disqualifying
provision described in section 5.01(1), if the plan amendment is adopted by the
end of the remedial amendment period described in section 2.05.;

(2) An employer (or a sponsor or a practitioner, if applicable) will be considered
to have timely adopted a plan amendment with respect to a plan provision that is
integral to a disqualifying provision as described in section 5.01(2), if the plan
amendment is adopted by the end of the remedial amendment period described
in section 2.05;

(3) An employer (or a sponsor or a practitioner, if applicable) will be considered
to have timely adopted a discretionary plan amendment (that is, a plan
amendment not described in section 5.01), if the plan amendment is adopted by
the end of the plan year in which the plan amendment is effective.

.06 For purposes of this revenue procedure, a pre-approved or individually
designed plan restatement which is generally effective as of a certain date should
not be treated as superseding a previously adopted interim plan amendment that
is effective after the restatement’s effective date and that has not been
incorporated or reflected in the restatement provided the pre-approved or
individually designed plan is operated in a manner consistent with the interim
plan amendment. For this purpose, a plan is presumed to be operating in
compliance with the interim plan amendments in any case (such as a
determination letter application) in which the operation of the plan cannot be
determined. This section 5.06 applies for all purposes, including the
determination of plan qualification, funding requirements, and deductions.

SECTION 6. PLAN AMENDMENTS AND OPERATIONAL REQUIREMENTS
UNDER FIVE YEAR AND SIX YEAR REMEDIAL AMENDMENT CYCLES

.01 The five-year remedial amendment cycles for individually designed plans are
established in section 9, and the extension and schedule of the end of the five-
year remedial amendment cycles are provided in section 12.01. The six-year
remedial amendment cycles for pre-approved plans are established in section
16, and the extension and schedule of the end of the six-year remedial
amendment cycles are provided in section 18.01. The effect of these extensions
is that a sponsor, practitioner, or employer generally will not need to apply for a
new opinion, advisory, or determination letter more than once during any
remedial amendment cycle.

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.02 An interim amendment adopted timely and in good faith to correct a
disqualifying provision as described in section 5.01 can itself be a disqualifying
provision as described in § 1.401(b)-1(b)(1). In this situation, a remedial
amendment to correct this second disqualifying provision (that is, the interim
amendment which was found to be itself a disqualifying provision) must be
adopted by the end of the five or six-year cycle for individually designed plans or
pre-approved plans, respectively. This remedial amendment will correct both
disqualifying provisions.

.03 If as described in section 5.03, a sponsor, practitioner, or employer
determined that no amendment was required, but that determination was
incorrect, then the sponsor, practitioner, or employer must adopt a remedial
amendment to correct the disqualifying provision by the end of the five-year
remedial amendment cycle for individually designed plans, or the end of the six-
year remedial amendment cycle for pre-approved plans, whichever is applicable.

.04 Operational compliance with an amended plan provision that has a
retroactive effective date is required for the remedial amendment period for the
amended provision to begin as of the retroactive effective date. In the situation
where a sponsor, practitioner, or employer timely adopted in good faith an interim
amendment which is not a disqualifying provision as described in § 1.401(b)-
1(b)(1) and the sponsor, practitioner, or employer failed to operate the plan
according to the terms of the interim amendment, the employer should correct
the operational failure under the Employee Plans Compliance Resolution System
(see Rev. Proc. 2003-44, 2003-1 C.B. 1051).

.05 This revenue procedure does not provide relief from the requirements of §
411(d)(6) for any plan amendments including plan amendments adopted as a
result of statutory or guidance changes in the plan qualification requirements.
Except to the extent permitted under § 411(d)(6) and the Regulations thereunder,
§ 411(d)(6) prohibits a plan amendment that decreases a participant’s accrued
benefits or that has the effect of eliminating or reducing an early retirement
benefit or retirement-type subsidy, or eliminating an optional form of benefit, with
respect to benefits attributable to service before the amendment. However, an
amendment that eliminates or decreases benefits that have not yet accrued does
not violate § 411(d)(6), provided the amendment is adopted and effective before
the benefits accrue.

SECTION 7. EXTENSION OF EGTRRA REMEDIAL AMENDMENT PERIOD

.01 The EGTRRA remedial amendment period is extended to the end of the
initial five and six-year remedial amendment cycles, respectively.

.02 This extension of the EGTRRA remedial amendment period extends the
remedial amendment period for all disqualifying provisions to which the EGTRRA

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remedial amendment period applies, including plan provisions required or
permitted to be amended for EGTRRA, final regulations under § 401(a)(9) of the
Code, Rev. Rul. 2001-62, Rev. Rul. 2002-27, and disqualifying provisions
described in Rev. Proc. 2004-25.

.03 This extension is only available to plans that satisfy the conditions for
eligibility for the EGTRRA remedial amendment period as set forth in Notice
2001-42 which requires the adoption of timely good faith EGTRRA plan
amendments or other plan amendments.

SECTION 8. PLAN TERMINATION

The termination of a plan ends the plan’s remedial amendment period, and thus,
will generally shorten the remedial amendment cycle for the plan. Accordingly,
any retroactive remedial plan amendments or other required plan amendments
for a terminating plan must be adopted in connection with the plan termination
(that is, plan amendments required to be adopted to reflect qualification
requirements that apply as of the date of termination even if the date of
termination is subsequent to the latest annual Cumulative Lists). An application
will be deemed to be filed in connection with plan termination if it is filed no later
than the later of (i) one year from the effective date of the termination, or (ii) one
year from the date on which the action terminating the plan is adopted. However,
in no event can the application be filed later than twelve months from the date of
distribution of substantially all plan assets in connection with the termination of
the plan.

PART III – Individually Designed Plans

SECTION 9. ESTABLISHMENT OF FIVE-YEAR REMEDIAL AMENDMENT
CYCLES FOR INDIVIDUALLY DESIGNED PLANS

.01 This Part III sets forth rules and procedures for the five-year remedial
amendment cycles for individually designed plans.

.02 In general, a plan’s five-year remedial amendment cycle is determined by
reference to the last digit of the employer identification number (EIN) of the
employer that sponsors the plan (including a self-employed person with no
employees). However, in particular circumstances, as described in section 10, a
different rule is, or may be, used to determine a plan’s five-year remedial
amendment cycle.

.03 Under the general rule, a plan’s five year remedial amendment cycle is
determined as follows:

If the last digit of the plan sponsor’s EIN is - The plan’s cycle is –

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1 or 6 Cycle A
2 or 7 Cycle B
3 or 8 Cycle C
4 or 9 Cycle D
5 or 0 Cycle E

SECTION 10. EXCEPTIONS TO THE GENERAL RULE FOR DETERMINING A
PLAN’S FIVE-YEAR REMEDIAL AMENDMENT CYCLE

.01 The following rules apply to determine the five-year remedial amendment
cycle of a plan maintained by more than one employer and a plan maintained by
multiple members of a controlled group under § 414(b) or (c) or employers that
are members of an affiliated service group under § 414(m).

.02 For a plan that is a multiemployer plan under § 414(f), the plan’s five-year
remedial amendment cycle is Cycle D.

.03 For a plan that is a multiple employer plan, the plan’s five-year remedial
amendment cycle is Cycle B.

.04 For a plan that is a governmental plan under § 414(d), including a
governmental plan that is a multiple employer plan, the plan’s five-year remedial
amendment cycle is Cycle C.

.05 For a plan maintained by multiple members of a controlled group under §
414(b) or (c) or an affiliated service group under § 414(m), the plan’s five year
remedial amendment cycle is determined with reference to the last digit of the
EIN that is or will be used to report the plan on Form 5500, Annual Return
/Report of Employee Benefit Plan.

.06 Notwithstanding the rules set forth in sections 9 and 10.05 for determining a
plan’s five-year remedial amendment cycle, if more than one plan is maintained
by members of a controlled group under § 414(b) or (c) or an affiliated service
group under § 414(m), the employers may elect that the five-year remedial
amendment cycle for all plans maintained by any members of the group (other
than multiemployer plans or multiple employer plans) will be Cycle A. The
election must be made jointly by all members of the controlled or affiliated service
group.

.07 If more than one plan is maintained by a controlled group under § 414(b) or
(c) that falls under section 10.06 and that is a parent-subsidiary controlled group
organization, an election may be made that the remedial amendment cycle be
determined by reference to the last digit of the parent’s EIN. This election is to
be made by the parent, in the case of a parent-subsidiary controlled group.

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.08 The election described in section 10.06 or 10.07 must be made by the end of
the earliest cycle (determined as of the date of the election) for which a
determination letter application would have been required to be submitted. For
example, if one member uses Cycle B and another member uses Cycle C, the
election must be made by the due date for Cycle B. The election must list all
members of the group, including each member’s EIN, and all plans (other than
multiemployer plans and multiple employer plans) that are maintained by each
member of the group. The election must be filed with the first determination letter
application that is submitted in accordance with this revenue procedure for any
plan (other than multiemployer plans and multiple employer plans) maintained by
any member of the group. Once filed, the election will apply and may not be
modified or revoked, except as provided below in section 11.01.

SECTION 11. RULES FOR DETERMINING FIVE-YEAR REMEDIAL
AMENDMENT CYCLE IN CASES OF MERGER OR ACQUISITION, CHANGE
IN PLAN SPONSORSHIP, OR PLAN SPIN-OFF

.01 Except as provided in section 11.02, in the case of a merger or acquisition, a
change in plan sponsorship, or a plan spin-off, a plan’s five-year remedial
amendment cycle is determined as follows regardless of whether this would
shorten or extend the five-year remedial amendment cycle of the plan. The
change could result in the need to file a new election pursuant to section 10.08:

(1) If plans with different five-year remedial amendment cycles are merged, the
five-year remedial amendment cycle of the merged plan is thereafter determined
as provided in section 9 or 10 on the basis of the EIN, controlled group status,
affiliated service group status, etc., of the employer that maintains the merged
plan;

(2) If one employer acquires another employer and maintains its plan, the five-
year remedial amendment cycle of the plan is thereafter determined as provided
in section 9 or 10 on the basis of the EIN, controlled group status, affiliated
service group status, etc., of the employer that is maintaining the plan;

(3) If there is a change in the EIN (including the expiration of the EIN),
controlled group status, affiliated service group status, etc., of the employer that
maintains a plan, the five-year remedial amendment cycle of the plan is
thereafter determined as provided in section 9 or 10 on the basis of the changed
EIN, controlled group status, affiliated service group status, etc., of the employer
that maintains the plan;

(4) If a portion of a plan is spun off, the five-year remedial amendment cycle of
the spun-off plan is determined as provided in section 9 or 10 on the basis of the
EIN, controlled group status, affiliated service group status, etc., of the employer
that maintains the spun-off plan.

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(5) If a self-employed person with no employees submits a determination letter
application based upon the last digit of the individual’s social security number
(SSN) instead of the EIN for the first determination letter submitted under this
revenue procedure, the determination letter application will be processed based
upon the SSN with the other on-cycle determination letter applications. However,
subsequent five-year remedial amendment cycles will be determined based upon
the last digit of the employer’s EIN as provided in section 9 or 10 (see Publication
583, Starting a Business and Keeping Records);

.02 If, as a result of one of the transactions described in this section, a plan’s
current five-year remedial amendment cycle is shortened such that the period
remaining in the cycle following the transaction is less than twelve calendar
months, the plan’s current cycle is extended for twelve months and the next five-
year cycle will be shortened accordingly. This extension does not apply to other
plans of the employer that are not similarly affected. Thereafter, the plan’s five-
year remedial amendment cycles will be determined as provided in section 9 or
10.

SECTION 12. EXTENSION OF THE EGTRRA REMEDIAL AMENDMENT
PERIOD AND SCHEDULE OF NEXT FIVE-YEAR REMEDIAL AMENDMENT
CYCLE

.01 The end of the initial remedial amendment cycle (i.e., EGTRRA remedial
amendment period) as extended in section 6 is illustrated in the following chart.
The chart also provides the end dates of the next five-year remedial amendment
cycle.

Extension of the EGTRRA Remedial Amendment Period and Schedule of
Next Five-Year Remedial Amendment C
ycle
If the TIN
of the
employer
ends in –

The
plan’s
cycle is -
The last day of the initial
cycle (i.e., EGTRRA
remedial amendment
period ) is –

The next five-year
remedial amendment
cycle ends on -
1 or 6 Cycle A January 31, 2007 January 31, 2012
2 or 7 Cycle B January 31, 2008 January 31, 2013
3 or 8 Cycle C January 31, 2009 January 31, 2014
4 or 9 Cycle D January 31, 2010 January 31, 2015
5 or 0 Cycle E January 31, 2011 January 31, 2016

.02 In accordance with section 7 of this revenue procedure, the end of a plan’s
EGTRRA remedial amendment cycle is the time by which plan sponsors must
apply for a new determination letter for qualification changes that have first been
listed in the Cumulative Lists at least twelve months before the end of the plan’s

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EGTRRA remedial amendment period and other qualification changes published
prior to the issuance of the applicable Cumulative Lists but not so identified.

For the following examples, refer to the chart found above in section 12.01 which
is the Extension of the EGTRRA Remedial Amendment Period and Schedule of
Next Five-Year Remedial Amendment Cycle. In the following examples, both the
tax year of the employer and the plan year are the calendar years.

Example 1: Employer M is a C corporation. The last digit of Employer M’s EIN is
7. Employer M adopts a new plan, Plan X on January 1, 2006. The cycle for
Plan X is Cycle B. Since Employer M timely adopted Plan X in good faith with
the intent of sponsoring a qualified plan, the initial remedial amendment cycle for
Plan X ends January 31, 2008. Any remedial amendments required for Plan X to
correct a disqualifying provision as described in § 1.401(b)-1(b)(1) must be
adopted by January 31, 2008, unless an application for a determination letter is
submitted by that date. The plan would then be retroactively effective to the first
day Employer M adopted Plan X in 2006. The subsequent 5-year remedial
amendment cycles end on January 31, 2013, January 31, 2018, etc.

Example 2: Same facts as Example 1. On July 1, 2010, Employer M starts to
operate the plan in a manner which is inconsistent with the written plan document
but an amendment to reflect the plan change when made retroactively effective
would not violate § 411(d)(6). This change is unrelated to a change in
qualification requirement or published guidance. To conform with plan operation,
Employer M must adopt an amendment by the end of the plan year in which the
plan amendment is effective. Employer M adopts an amendment by December
31, 2010 in good faith with the intent of maintaining the qualified status of Plan X.
Employer M submits a determination letter application on or before the end of the
second five-year remedial amendment cycle (that is, January 31, 2013). During
the review of the determination letter application, the Service finds that the
adoption of the amendment caused the plan to fail to satisfy the requirements of
the Code as of the date the amendment was first made effective. Once the
Service informs Employer M that the amendment is a disqualifying provision as
described in § 1.401(b)-1(b)(1), Employer M would be required to adopt an
amendment which corrects the disqualifying provision. The amendment would
be retroactively effective as of July 1, 2010.

Example 3: Same facts as Example 1. The last day of the third five-year
remedial amendment cycle for Employer M is January 31, 2018. Since the first
day of the third remedial amendment cycle, Employer M has adopted interim plan
amendments timely and in good faith with the intent of maintaining the qualified
status of Plan X, as well as maintaining operational compliance. In 2017,
Employer M updates Plan X for the qualification requirements stated in the 2016
Cumulative List by restating the plan in proposed form. Employer M submits a
determination letter application using a working copy of the plan in a restated

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format on or before January 31, 2018. Employer M receives a favorable
determination letter. Employer M must adopt the proposed restated plan by 91
days after the date of the favorable determination letter to be considered timely
under § 401(b) of the Code.

Example 4: The remedial amendment cycle for Plan Y is based on the last digit
of Employer N’s EIN, which is a 4. Plan Y’s cycle is therefore Cycle D. The
initial remedial amendment cycle (that is, EGTRRA remedial amendment period)
for Plan Y ends January 31, 2010, and the subsequent 5-year remedial
amendment cycle ends January 31, 2015. In January 2009, guidance is
published effective for the plan years beginning on or after January 1, 2010. The
guidance first appears on the 2009 Cumulative List. Employer N updates Plan Y
for the remedial amendment cycle that ends January 31, 2010 for qualification
requirements listed on the 2008 Cumulative List. Employer N submits a
determination letter application on July 1, 2009. Since the guidance was
published after the issuance of the 2008 Cumulative List and not identified and
included on such list, the Service will not consider in its review the published
guidance until Employer N’s subsequent remedial amendment cycle. To reflect
this published guidance, Employer N must adopt an interim amendment timely
and in good faith (that is, by the end of the 2010 tax filing date (including
extensions)). The interim amendment is effective as of the first day of the 2010
plan year and will be reviewed as part of the determination letter application
submitted in the subsequent five-year remedial amendment cycle.

SECTION 13. ON-CYCLE FILING FOR DETERMINATION LETTERS

.01 In general, plan sponsors of individually designed plans that wish to preserve
reliance on a plan’s favorable determination letter must apply for a new
determination letter for each remedial amendment cycle during the last twelve
months of their plan’s remedial amendment cycle, that is between February 1
and January 31 of the last year of the cycle. This is referred to as “on-cycle”
filing.

.02 Determination letters issued for individually designed plans will include a
statement that the letter may not be relied on after the end of the plan’s first five-
year remedial amendment cycle that ends more than twelve months after the
application was received, and will include the specific “expiration date.” Thus,
determination letters issued for applications filed more than twelve months prior
to the end of a five-year remedial amendment cycle may not be relied on after
that cycle.

.03 In appropriate circumstances, the Service may, through generally applicable
published guidance, extend the expiration dates of determination letters for a
particular cycle year or years.

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SECTION 14. OFF-CYCLE FILING FOR DETERMINATION LETTERS

If an application for a determination letter is submitted prior to or after the last
twelve month period of a plan’s remedial amendment cycle (that is, the twelve-
month period beginning on February 1 and ending on January 31 of the last year
of the cycle), the application is filed “off-cycle” and does not satisfy section 13.01.
The off-cycle filing will be reviewed using the same Cumulative List that would be
used for an application that was filed “on-cycle” on the same date as the “off-
cycle” filing date. This means that the determination letter issued for the plan
may not take into account any or all of the changes in qualification requirements
for which the plan must be amended within the plan’s current remedial
amendment cycle. Further, as stated in section 13.02, the determination letter
may not be relied on after the end of the plan’s first five-year remedial
amendment cycle that ends more than twelve months after the application
received. Consequently, the plan may need to be further amended within the
cycle and another determination letter application will need to be filed within the
last twelve months of the cycle if the plan sponsor wishes to preserve reliance on
a determination letter. Also, the application submitted in a particular year will not
be reviewed until all on-cycle plans for that particular year have been reviewed
and processed.

Example 5: The remedial amendment cycle for Plan Z is based on the last digit of
Employer L’s EIN, which is 0. Plan Z’s cycle is Cycle E. The initial five-year
remedial amendment cycle (that is, EGTRRA remedial amendment period) for
Plan Z ends January 31, 2011, and the subsequent 5-year remedial amendment
cycle ends January 31, 2016. Employer L submits a determination letter
application on March 1, 2009. The 2008 Cumulative List will be used to review
Employer L’s determination letter submission. Since the initial five-year remedial
amendment cycle will expire on January 31, 2011, Employer L must submit a
new determination letter application during the last twelve months of the remedial
amendment cycle (between February 1, 2010 to January 31, 2011) to continue to
have reliance on a determination letter after that date.

SECTION 15. OPENING OF DETERMINATION LETTER PROGRAM FOR
INITIAL REMEDIAL AMENDMENT CYCLE FOR INDIVIDUALLY DESIGNED
PLANS

.01 This revenue procedure announces the opening, on February 1, 2006, of the
determination letter program for the initial remedial amendment cycle (i.e.,
EGTRRA remedial amendment period) for individually designed plans that fall in
Cycle A. The Service will also accept determination letter applications for
individually designed plans which would be considered to be filed off-cycle.

.02 Applications for determination letters for individually designed plans that are
filed on or after February 1, 2006 will be reviewed taking into account the

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requirements of EGTRRA as well as other changes in qualification requirements
and guidance identified on the applicable Cumulative List.

.03 In general, Form 6406, Short Form Application for Determination for Minor
Amendment of Employee Benefit Plan, may not be used to apply for an initial
remedial amendment cycle (that is, EGTRRA) determination letter and for all
future determination letter application submissions in subsequent remedial
amendment cycles.

.04 In general, individually designed plans must be restated when they are
submitted for determination letter applications for the initial remedial amendment
cycle (that is, EGTRRA remedial amendment period) and subsequent remedial
amendment cycles. For this purpose, submission of a working copy of the plan
in a restated format will suffice.

PART IV – Pre-approved Plans

SECTION 16. ESTABLISHMENT OF SIX-YEAR AMENDMENT/APPROVAL
CYCLE FOR PRE-APPROVED PLANS

.01 This Part IV sets forth rules and procedures for the six-year remedial
amendment/approval cycles for pre-approved plans.

.02 Sponsors and practitioners maintaining pre-approved plans generally have
until January 31st of the calendar year following the opening of the six-year
remedial amendment cycle to submit applications for opinion and advisory
letters. However, sponsors and practitioners maintaining mass submitter plans
and national sponsors generally have until October 31st of the calendar year in
which the six-year remedial amendment cycle opens to submit opinion and
advisory applications.
3
In addition, the deadline for word-for-word identical
adopters and minor modifier placeholder applications is January 31st of the
calendar year following the opening of the six-year remedial amendment cycle
(see section 12 of Rev. Proc. 2005-16 for more details). However, sponsors and
practitioners maintaining mass submitter plans are encouraged to submit their
word-for-word and minor modifier placeholder applications by the earlier mass
submitter submission deadline, October 31st. The Service will evaluate this new
provision (that is, a different deadline for applications of mass submitter plans
versus word-for-word and minor modifier placeholder applications) and may, at
its discretion and through applicable published guidance, change the deadline
date for the word-for-word and minor modifier placeholder applications in future
six-year remedial amendment cycles.

3
Section 18.02(1) provides a later deadline of January 31, 2006 for the initial EGTRRA
application for sponsors and practitioners maintaining mass submitter plans and national
sponsors who submit applications for defined contribution M&P and volume submitter plans.

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.03 When the review of a cycle for pre-approved plans has neared completion
(after approximately a two-year review process), the Service will publish an
announcement providing the date by which adopting employers must adopt the
newly approved plans. This will be a uniform date that will apply to all adopting
employers. Depending upon the length of the review process, it is expected that
this date will give virtually all employers approximately a two-year window to
adopt their updated plans. For purposes of this revenue procedure, an adopting
employer means an employer who satisfies the requirements described under
section 17 of this revenue procedure.

.04 An adopting employer that adopts the approved M&P or volume submitter
plan by the announced deadline will have adopted the plan within the employer’s
six-year remedial amendment cycle. The announced deadline will be the end of
the plan’s remedial amendment cycle with respect to all disqualifying provisions
for which the remedial amendment period would otherwise end during the cycle.

.05 If necessary, the Service may revise the schedule described in this section
to respond to changing circumstances and needs of plan sponsors.

SECTION 17. ELIGIBILITY FOR SIX-YEAR AMENDMENT/APPROVAL CYCLE

.01 An employer’s plan is treated as a pre-approved plan and is therefore
eligible for a six-year amendment/approval cycle if:

(1) The employer is either a prior adopter described in section 17.02, a new
adopter described in section 17.03, an intended adopter described in section
17.04, or the adopter of a replacement plan that meets the conditions described
in section 17.05, and

(2) The sponsor or practitioner maintaining the pre-approved plan timely submits
an opinion or advisory letter application:

(a) By the application deadline of October 31st in the calendar year
opening the six-year remedial amendment cycle for mass submitter and national
sponsor pre-approved plans, or

(b) By the application deadline of January 31st of the calendar year
following the opening of the six-year remedial amendment cycle for non-mass
submitter, word-for-word adopter, and minor modifier pre-approved plans.

.02 An employer is a prior adopter if the employer’s pre-approved plan was both
adopted and effective as of the last day of the six-year remedial amendment
cycle immediately preceding the opening of the current six-year cycle (or, in the
case of the initial six-year remedial amendment cycle, February 16, 2005 for

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defined contribution pre-approved plans or January 31, 2007 for defined benefit
pre-approved plans.

.03 An employer is a new adopter if the employer switches from an individually
designed plan before the end of the employer’s five-year remedial amendment
cycle as determined under Part III of this revenue procedure by adopting either a
pre-approved plan that was issued a valid opinion or advisory letter or an interim
pre-approved plan (e.g., a new pre-approved plan that has yet to be issued an
opinion or advisory letter).

.04 An employer is an intended adopter if the employer and the sponsor or
practitioner who maintains the pre-approved plan execute Form 8905,
Certification of Intent to Adopt Pre-approved Plan
4
, before the end of the
employer’s five-year remedial amendment cycle as determined under Part III of
this revenue procedure. If the employer’s five-year remedial amendment cycle
ends with or after the applicable six-year remedial amendment cycle, the
employer must adopt the current pre-approved plan rather than execute Form
8905. In this situation, the employer is not an intended adopter.

.05 An employer is an adopter of a replacement plan under the following
circumstances:

(1) The employer timely adopted a pre-approved plan that is to be replaced by a
“replacement” plan (that is, the plan document remaining after one of the
situations described in section 17.05(3));

(2) A sponsor or practitioner maintaining the pre-approved plan does not request
an opinion or advisory letter during the current six-year approval/amendment
cycle because the plan is to be replaced by the plan of another sponsor or
practitioner as a result of a change in business circumstances described in
section 17.05(3);

(3) The sponsor or practitioner of the replacement plan and the sponsor or
practitioner of the replaced plan are related in one of the following ways: (a) one
was merged into the other before the last day of the submission period as
described in section 17.01(2) or (b) as of the last day of the submission period as
described in section 17.01(2) both are members of the same controlled group of
corporations within the meaning of § 414(b) or are trades or businesses which
are under common control within the meaning of § 414(c).

4
Form 8905, Certification of Intent to Adopt Pre-approved Plan is not expected to be available to
the public for several months. Therefore, the Service will announce procedures for the
submission of this and other relevant forms at www.irs.gov/ep
, which will be updated periodically.

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.06 If the employer intends to adopt a replacement plan, the employer will not be
required to execute Form 8905, Certification of Intent to Adopt Pre-approved
Plan.

.07 If the employer applies for a determination letter for a replacement plan, the
application must include a statement from the sponsor or practitioner maintaining
the replaced plan indicating that the sponsor or practitioner bought out or merged
with the sponsor or practitioner maintaining the replacement plan.

.08 If an employer described in section 17.03 or 17.05 fails to adopt a pre-
approved plan or if an employer described in section 17.02 or 17.04 fails to adopt
a pre-approved plan or individually designed plan by the adoption and/or
submission deadline established by the Service for the current six-year remedial
amendment cycle and the employer is unable to utilize its five-year remedial
amendment cycle, (e.g., the employer’s submission deadline under the five-year
remedial amendment cycle precedes the adoption and/or submission deadline
under the current six-year cycle), then the adopting employer may be eligible to
correct for late adoption under the Employee Plans Compliance Resolution
System.

.09 Effect of Adoption of an Individually Designed Plan:

(1) Although an employer described in section 17.09(2) will no longer be treated
as maintaining a pre-approved plan, the employer will remain eligible for the
current six-year remedial amendment cycle. The subsequent remedial
amendment cycle is the first five-year cycle, as determined under Part III of this
revenue procedure, that ends after the closing of the six-year cycle in which the
determination letter application was submitted or could have been submitted.
However, if the employer is also described in either section 24.02 of Rev. Proc.
2005-16 with respect to a volume submitter plan or section 19 of this revenue
procedure with respect to an M&P plan, then the remedial amendment period
under section 19 of this revenue procedure will apply;

(2) Under this section 17.09(2) an employer is entitled to remain in the six-year
remedial amendment cycle in the current remedial amendment cycle if:

(a) the employer is a prior adopter of a pre-approved plan (as described in
section 17.02) and after adopting this pre-approved plan the employer decides to
adopt an individually designed plan whose underlying plan
document is not based upon a pre-approved plan document, or

(b) the employer amends an approved M&P plan including its adoption
agreement to incorporate a type of plan not allowed in the M&P program (e.g., as
described in section 6.03 of Rev. Proc. 2005-16), or

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(c) the employer amends an approved volume submitter plan to incorporate a
type of plan not allowed in the volume submitter program (e.g., as described in
section 16.02 of Rev. Proc. 2005-16);

(3) Notwithstanding section 17.09(1), if an employer amends an approved M&P
plan including its adoption agreement or an approved volume submitter plan to
such an extent that the Service determines in its discretion that the plan falls
under section 24.03 of Rev. Proc. 2005-16, then the plan will be considered
individually designed for purposes of this revenue procedure. The remedial
amendment cycle in which the employer impermissibly amends the M&P plan or
volume submitter plan and all subsequent remedial amendment cycles will be
determined under Part III of this revenue procedure;

(4) If an employer described in section 17.09(2), submits a determination letter
application prior to the end of any given six-year cycle, then the subsequent
remedial amendment cycle is the first five-year cycle, as determined under
section 9 or 10 of this revenue procedure that ends after the closing of the six-
year cycle in which the determination letter application was submitted. The
employer’s application will be reviewed using the applicable Cumulative List
based on the date of the application. However, if the end of the first five-year
cycle that ends after the closing of the six-year cycle is less than twelve calendar
months after the date of the favorable determination letter, then the plan’s current
cycle is extended for twelve calendar months and the next five-year cycle will be
shortened accordingly.

Examples 6 through 9 below illustrate how different types of employer
amendments to a pre-approved plan affect the employer’s current and/or
subsequent remedial amendment cycle and which Cumulative List the Service
will use to review an employer’s submission.

Example 6: Practitioner S maintains a defined contribution volume submitter
specimen plan. Practitioner S timely submits an advisory letter application for the
initial six-year remedial amendment cycle (that is, EGTRRA remedial amendment
period) on or before January 31, 2006. Practitioner S receives an advisory letter
dated January 31, 2008. The Service announces that February 1, 2008 until
January 31, 2010 is the time period when employers must adopt a restated pre-
approved plan and, if necessary, file a determination letter application. Employer
T adopts the volume submitter specimen plan, now Plan K, on or before January
31, 2010. Employer T amends Plan K so that it is no longer word-for-word
identical to the volume submitter specimen plan. Employer T submits a
determination letter application using Form 5307, Application for Determination
for Adopters of Master or Prototype or Volume Submitter Plans on January 15,
2010. The Service will review the determination letter application based upon the
Cumulative List used to review the underlying plan document, the 2004
Cumulative List.

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The 2004 Cumulative List is used in this instance because the Service in its
review determined that the amendments to the volume submitter specimen plan
did not rise to the level that necessitated the treatment of Plan K as an
individually designed plan which would require Employer T to file Form 5300,
Application for Determination for Employee Benefit Plan. Accordingly, Employer
T’s subsequent remedial amendment cycle will continue to be determined under
Part IV of this revenue procedure. Practitioner S would submit an application for
an advisory letter within the next six year remedial amendment cycle, which ends
on January 31, 2017, on or before the submission deadline for such cycle of
January 31, 2012. Employer T would adopt the restated pre-approved plan and,
if necessary, file a determination letter application within the time period
announced by the Service.

Example 7: Employer X has maintained Plan M, a defined contribution pre-
approved plan, since 2002. The last digit of Employer X’s EIN is 8. Plan M is
timely submitted for the initial six-year remedial amendment cycle (that is, the
EGTRRA remedial amendment period) by the sponsor/practitioner on or before
January 31, 2006. Generally, Employer X will have until January 31, 2011
(unless otherwise provided by the Service) to adopt the EGTRRA approved
version of the pre-approved plan and have such adoption be considered timely
under § 401(b) of the Code.

In 2007, Employer X decides Plan M no longer offers the flexibility it desires in
providing the retirement benefits to its employees. As a result, Employer X
amends and restates Plan M in 2007 into a defined contribution individually
designed plan (with the intent of maintaining the qualified status of Plan M).
Though Employer X is now sponsoring an individually designed plan, Employer
X, a prior adopter as described in section 17.02, is still eligible for the six-year
remedial amendment cycle under section 17.09(2). The Service announces that
February 2, 2008 until January 31, 2010 is the time period when employers must
adopt a restated pre-approved plan and, if necessary, file a determination letter
application. On June 1, 2009 Employer X submits a determination letter
application using Form 5300, Application for Determination for Employee Benefit
Plan and pays the higher user fee. The Service will review the determination
letter application based upon the 2008 Cumulative List (that is, the annual
Cumulative List based on the date of the determination letter submission). The
subsequent remedial amendment cycle is the first five-year cycle as determined
under section 9 or 10 of this revenue procedure that ends after the closing of the
six-year cycle in which the determination letter application was submitted; thus,
the next five-year remedial amendment cycle ends January 31, 2014.

Example 8: Employer Y, whose EIN ends with an 8, maintains Plan N. Plan N is
an adoption of an M&P defined benefit plan as of 2002. The M&P plan is timely
submitted for the initial six-year remedial amendment cycle (that is, EGTRRA

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remedial amendment period) by the sponsor on or before January 31, 2008 and
the sponsor receives an opinion letter dated January 31, 2010 for the M&P plan.
Generally, Employer Y has until January 31, 2013 (unless otherwise provided by
the Service) to adopt the EGTRRA approved version of the M&P plan and have
such adoption be considered timely under § 401(b) of the Code.

On November 19, 2012, as part of adopting the EGTRRA approved version of an
M&P plan, Employer Y adopts an amendment to Plan N that creates a plan
described under §414(k). Although Employer Y adopts this amendment timely
and in good faith with the intent of maintaining the qualified status of Plan N, this
amendment changes the provisions of the M&P plan to create a type of plan that
is not allowed in the M&P program. Since Employer Y has amended the M&P
plan to incorporate a type of plan for which the Service will not issue an opinion
letter, Plan N is an individually designed plan. Though Employer Y is now
sponsoring an individually designed plan, Employer Y, a prior adopter as
described in section 17.02, is still eligible for the six-year remedial amendment
cycle under section 17.09(2). The Service announces February 1, 2011 until
January 31, 2013 as the time period for employers to adopt a restated pre-
approved plan and, if necessary, file a determination letter application. Employer
Y submits a determination letter application using Form 5300, Application for
Determination for Employee Benefit Plan and pays the higher user fee on March
31, 2012. The Service will review the determination letter application based upon
the 2011 Cumulative List (that is, the annual Cumulative List based on the date
of the determination letter submission). Employer Y receives a favorable
determination letter dated March 31, 2013. Employer Y’s subsequent remedial
amendment cycle is the first five-year cycle, as determined under section 9 or 10
of this revenue procedure that ends after the closing of the six-year cycle in
which the determination letter application was submitted; thus, the next five-year
remedial amendment cycle ends January 31, 2014. However, since the end of
the first five-year cycle that ends after the closing of the six-year cycle is less
than twelve calendar months after the date of the favorable determination letter,
the current five-year cycle is extended by twelve calendar months as provided in
section 17.09(5); thus the end of the five-year cycle is January 31, 2015 and not
January 31, 2014. The subsequent remedial amendment cycle is shortened
accordingly but the submission period deadline remains January 31, 2019.

Example 9: Employer Z, whose EIN ends with a 2, maintains Plan V. Plan V is a
defined contribution plan and is an adoption of a volume submitter plan as of
2011. The volume submitter specimen plan is timely submitted for the second
six-year remedial amendment cycle by the practitioner on or before January 31,
2012. The volume submitter practitioner receives an advisory letter dated
January 31, 2014 for the VS specimen plan. Generally, Employer Z will have
until January 31, 2017 (unless otherwise provided by the Service) to adopt the
approved volume submitter plan and to have such adoption be considered timely
under § 401(b) of the Code.

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On November 15, 2013, Employer Z adopts an amendment to Plan V that
creates an employee stock ownership plan. Although Employer Z adopts this
amendment timely and in good faith with the intent of maintaining the qualified
status of Plan V, this amendment changes the provisions of the volume submitter
plan to create a type of plan that is not allowed in the volume submitter program.
Since Employer Z has amended the volume submitter plan to incorporate a type
of plan for which the Service will not issue an advisory letter, Employer Z submits
a determination letter application for Plan V by November 20, 2013 using Form
5300, Application for Determination for Employee Benefit Plan and pays the
higher user fee. The Service would use the 2012 Cumulative List in its review of
the determination letter submission. Employer Z receives a favorable
determination letter dated November 20, 2014. Employer Z’s subsequent
remedial amendment cycle is the first five-year cycle, as determined under
section 9 or 10 of this revenue procedure that ends after the closing of the six-
year cycle in which the determination letter application was submitted; thus, the
next five-year remedial amendment cycle ends January 31, 2018.

SECTION 18. EXTENSION OF THE EGTRRA REMEDIAL AMENDMENT
PERIOD AND SCHEDULE OF NEXT SIX-YEAR REMEDIAL AMENDMENT
CYCLE

.01 The end of the initial remedial amendment cycle (that is, EGTRRA remedial
amendment period) as extended in section 6 is illustrated in the following chart.
The chart also provides the end dates (unless otherwise provided by the Service)
of the next six-year remedial amendment cycle.

Extension of the EGTRRA Remedial Amendment Period and Schedule
of Next Six-Year Remedial Amendment C
ycle
If the plan is - The last day of the
initial cycle (i.e.,
EGTRRA remedial
amendment period) is –

The next six-year
remedial
amendment cycle
ends on -
Defined Contribution January 31, 2011 January 31, 2017
Defined Benefit January 31, 2013 January 31, 2019

.02 In general, sponsors of M&P plans and practitioners maintaining volume
submitter plans must apply for new opinion or advisory letters for the plans every
six years, according to the following schedule:

(1) Defined Contribution Plans

Initial EGTRRA application due
- Next application due -

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Non-Mass Submitter Sponsors and Practitioners, Word-for-Word Identical
Adopters, and M&P Minor Modifier Placeholder Applications:

February 17, 2005 February 1, 2011
through January 31, 2006 through January 31, 2012

Mass Submitters and National Sponsors:

February 17, 2005 February 1, 2011
through January 31, 2006 through October 31, 2011

(2) Defined Benefit Plans

Initial EGTRRA application due
- Next application due -

Non-Mass Submitter Sponsors and Practitioners, Word-for-Word Identical
Adopters and M&P Minor Modifier Placeholder Applications

February 1, 2007 February 1, 2013
through January 31, 2008 through January 31, 2014

Mass Submitters and National Sponsors:

February 1, 2007 February 1, 2013
through October 31, 2007 through October 31, 2013

.03 In accordance with section 7 of this revenue procedure, the end of a plan’s
EGTRRA remedial amendment cycle is the time by which an employer adopts
the approved plan by the end of the deadline as announced by the Service. An
adopting employer that timely adopts the approved plan will be treated as having
adopted the plan within the employer’s six-year remedial amendment cycle.

SECTION 19. OPTION TO PERMIT ADOPTING EMPLOYER TO AMEND M&P
PLAN AND REMAIN IN SIX-YEAR REMEDIAL AMENDMENT CYCLE

.01 Generally, an employer that amends any provision of an approved M&P plan
including its adoption agreement (other than to change the choice of options, if
the plan permits or contemplates such a change) is considered to have adopted
an individually designed plan. (See section 5.02 of Rev. Proc. 2005-16.)

.02 Plan amendments that are adopted timely and in good faith with the intent of
maintaining the qualified status of the plan by employers sponsoring M&P plans
will be disregarded for purposes of determining an employer’s remedial
amendment cycle. Thus, the plan will continue to be treated as an M&P plan for
purposes of this revenue procedure and therefore eligible for the six-year

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remedial amendment cycle on a continuing basis as provided in section 24.02 of
Rev. Proc. 2005-16, unless one of the following occurs:

(1) The employer adopts one or a series of amendments that either by itself or
taken together, causes the plan to fall into one of the categories listed in section
6.03 of Rev. Proc. 2005-16, or the Service uses its discretion under section 24.03
of Rev. Proc. 2005-16 to determine that the plan is individually designed due to
the amendment, or

(2) The adopting employer severs ties with the M&P sponsor (that is, does not
adopt a pre-approved plan with a current opinion or advisory letter for the
applicable remedial amendment cycle).

.03 An employer that adopts an amendment which causes an M&P plan to be
treated as an individually designed plan under section 19.01 of this revenue
procedure, but for remedial amendment cycle purposes remains eligible for the
six-year remedial amendment cycle under section 19.02 of this revenue
procedure, must file a determination letter application (that is, a Form 5300) for
reliance. The determination letter application should be filed during the
approximate two-year period within the six-year remedial amendment cycle that
the Service announces for employers to adopt and submit determination letter
applications, (if applicable). The Service will use the applicable Cumulative List
based on the date of the determination letter submission in its review.
Procedures for filing the Form 5300 are similar to the procedures set forth in
section 9.09 in Rev. Proc. 2005-6, for volume submitter plans, except for the
following:

(1) A list of modifications is not required to be included.

(2) Any changes adopted by the employer must be made in the form of an
amendment and not incorporated into the underlying M&P plan document.

.04 If the employer is required to obtain a determination letter in order to have
reliance, then the sponsor’s authority to amend on behalf of the adopting
employer is conditioned on the plan being covered by a favorable determination
letter. However, the sponsor will no longer have the authority to amend on behalf
of the employer if the amendment falls into one of the categories listed in section
6.03 of Rev. Proc. 2005-16 or section 24.03 of Rev. Proc. 2005-16.

SECTION 20. OFF-CYCLE FILING

If an opinion or advisory letter application for a new sponsor, new practitioner, or
new pre-approved plan is submitted outside of the submission period within an
applicable six-year cycle, the application is filed “off-cycle”. The application will
be reviewed using the Cumulative List the Service would have used if the plan

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had been submitted as an on-cycle plan during the most-recently expired
submission period that would have applied for that particular type of plan.

Example 10: Sponsor S submits an application for an opinion letter for a new
defined contribution M&P pre-approved plan on January 1, 2008. This is after
the submission period that ended on January 31, 2006 for the current cycle and
before the submission period that begins on February 1, 2011 and ends on
January 31, 2012 for the next six-year cycle. Sponsor S’s application will be
reviewed using the 2004 Cumulative List.

SECTION 21. EFFECT ON OTHER DOCUMENTS

Rev. Proc. 2000-27, 2000-1 C.B. 1272 is modified and superseded.
Notice 2001-42, Rev. Proc. 2005-6, Rev. Proc. 2005-16 and Announcement
2005-36 are modified.

DRAFTING INFORMATION

The principal author of this revenue procedure is Dana Barry of the Employee
Plans, Tax Exempt and Government Entities Division. For further information
regarding this revenue procedure, please contact the Employee Plans’ taxpayer
assistance telephone service at 1-877-829-5500 (a toll-free number) between the
hours of 8:00 a.m. and 6:30 p.m. Eastern Time, Monday through Friday (a toll
free call). Ms. Barry may be reached at (202) 283-9888 (not a toll-free call).