rp-22-40.pdf

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26 CFR § 601.201: Rulings and determination letters.
(Also Part I, §§ 401; 1.401(b)-1; 403(b).)

Rev. Proc. 2022-40

Table of Contents

PART I – OVERVIEW

SECTION 1. PURPOSE
SECTION 2. BACKGROUND
SECTION 3. SUMMARY OF SIGNIFICANT MODIFICATIONS
SECTION 4. DEFINITIONS

PART II – INDIVIDUALLY DESIGNED QUALIFIED AND SECTION 403(b) PLANS

SECTION 5. REMEDIAL AMENDMENT PERIOD FOR INDIVIDUALLY DESIGNED
QUALIFIED AND SECTION 403(b) PLANS
SECTION 6. PLAN AMENDMENT DEADLINE
SECTION 7. REQUIRED AMENDMENTS LIST
SECTION 8. OPERATIONAL COMPLIANCE LIST
SECTION 9. CIRCUMSTANCES UNDER WHICH A PLAN MAY BE SUBMITTED
FOR A DETERMINATION LETTER
SECTION 10. SCOPE OF PLAN REVIEW
SECTION 11. RELIANCE ON DETERMINATION LETTERS
SECTION 12. TIMING OF SUBMISSION OF DETERMINATION LETTER
APPLICATIONS FOR SECTION 403(b) PLANS
SECTION 13. SPECIAL NOTICE AND DISCLOSURE REQUIREMENTS FOR
SECTION 403(b) PLANS

PART III – EFFECT ON OTHER DOCUMENTS, EFFECTIVE DATE, PUBLIC
COMMENTS, DRAFTING INFORMATION

SECTION 14. EFFECT ON OTHER DOCUMENTS
SECTION 15. EFFECTIVE DATE
SECTION 16. PUBLIC COMMENTS

2

PART I – OVERVIEW

SECTION 1. PURPOSE

.01 This revenue procedure modifies Rev. Proc. 2016-37, 2016-29 IRB 136,
1

which, in part, provides the circumstances under which a Plan Sponsor may submit a
determination letter application to the Internal Revenue Service (IRS) with respect to a
qualified individually designed plan, to permit the submission of determination letter
applications for section 403(b) individually designed plans. Under this revenue
procedure, a Plan Sponsor that maintains a section 403(b) individually designed plan
will be permitted to submit a determination letter application for an initial plan
determination, for a determination upon plan termination, and in certain other
circumstances identified by the IRS in guidance published in the Internal Revenue
Bulletin (IRB). The earliest date a Plan Sponsor will be permitted to submit a
determination letter application for a section 403(b) individually designed plan is
June 1, 2023, in accordance with section 12 of this revenue procedure.

.02 This revenue procedure also (1) incorporates modifications of Rev. Proc.
2016-37 set forth in Rev. Proc. 2019-20, 2019-20 IRB 1182, relating to the submission
of determination letter applications for a determination with respect to Merged Plans,
(2) clarifies and modifies the provisions of Rev. Proc. 2019-39, 2019-42 IRB 945,
2
that
relate to the Remedial Amendment Period for section 403(b) individually designed plan
Form Defects first occurring after June 30, 2020, (3) extends the expiration of the
Remedial Amendment Period for new qualified individually designed plans, (4) modifies
the circumstances under which a plan is considered to have been issued an initial plan
determination, and (5) modifies the scope of review of qualified individually designed
plans submitted under the determination letter program.

.03 This revenue procedure does not modify or restate the provisions of
Rev. Proc. 2016-37 relating to qualified pre-approved plans. The Department of the
Treasury (Treasury Department) and the IRS anticipate updating the provisions of
Rev. Proc. 2016-37 relating to qualified pre-approved plans in future guidance.
3

1
For purposes of this revenue procedure, references to Rev. Proc. 2016-37 are to Rev. Proc. 2016-37, as
modified by Rev. Proc. 2017-41, 2017-29 IRB 92, Rev. Proc. 2019-20, 2019-20 IRB 1182,
Rev. Proc. 2020-40, 2020-38 IRB 575, and Rev. Proc. 2021-38, 2021-38 IRB 425.
2
For purposes of this revenue procedure, references to Rev. Proc. 2019-39 are to Rev. Proc. 2019-39, as
modified by Notice 2020-35, 2020-25 IRB 948, Rev. Proc. 2020-40, and Rev. Proc. 2021-37, 2021-38 IRB
385.
3
This revenue procedure also does not address section 403(b) pre-approved plans. The Treasury
Department and the IRS anticipate updating the provisions of Rev. Proc. 2019-39 relating to section
403(b) pre-approved plans in the future guidance that will update the provisions of Rev. Proc. 2016-37
relating to qualified pre-approved plans.

3

SECTION 2. BACKGROUND

.01 Qualified individually designed plans.

(1) Section 401(b) of the Internal Revenue Code (Code) provides a remedial
amendment period
4
during which a plan may be amended retroactively to comply with
the Code's qualification requirements. Treas. Reg. § 1.401(b)-1 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 of Internal Revenue (Commissioner) the
discretion to designate certain plan provisions as disqualifying provisions and to extend
the remedial amendment period.

(2) Section 7805(b)(8) provides that the Secretary may prescribe the extent, if
any, to which any ruling (including any judicial decision or any administrative
determination other than by regulation) relating to the internal revenue laws shall be
applied without retroactive effect.

(3) Section 1.401(b)-1 provides that a plan that fails to satisfy the requirements
of section 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 that causes the plan to fail to satisfy the requirements of the Code
applicable to the qualification of the plan as of the date the plan or amendment is first
made effective. 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 (a) results in the failure of the plan to satisfy the qualification requirements of the
Code by reason of a change in those requirements, or (b) 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 during the remedial amendment period with respect to
disqualifying provisions described in § 1.401(b)-1(b)(3).

(4) 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

4
This revenue procedure includes certain defined, capitalized terms, such as Disqualifying Provision and
Form Defect. On occasion, these same words were used in prior guidance without capitalization or with a
somewhat different meaning. If this revenue procedure refers to words used in prior guidance under these
conditions, those words are not capitalized.

4

case of a plan maintained by one employer, ends on the later of (a) 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 (b) the last day of the plan year in which the plan is put into
effect. In the case of a new plan maintained by more than one employer, the remedial
amendment period ends on 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.

(5) 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 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 (a) the due date (including extensions)
for filing the employer's tax return for the taxable year in which the amendment is
adopted or effective (whichever is later) or (b) 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 remedial amendment
period ends on 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).

(6) 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, unless another time is specified by the
Commissioner in revenue rulings, notices, and other guidance published in the IRB, 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: (a) 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 (b) the
last day of the plan year that includes the date on which the remedial amendment
period begins. In the case of a plan maintained by more than one employer the remedial
amendment period ends on the last day of the tenth month following the last day of the
plan year in which the remedial amendment period begins.

(7) Section 1.401(b)-1(f) provides that the Commissioner has discretion to
extend the remedial amendment period.

(8) Rev. Proc. 2016-37 provides that, effective January 1, 2017, a sponsor of a
qualified individually designed plan is permitted to submit a determination letter
application only for initial plan qualification, for qualification upon plan termination, and
in certain other circumstances, as set forth in guidance published in the IRB.
Rev. Proc. 2016-37 also provides an extended remedial amendment period under
section 401(b) for qualified individually designed plans and a system of cyclical remedial
amendment periods under section 401(b) for qualified pre-approved plans.

(9) Rev. Proc. 2019-20 provides for a permanent, limited expansion of the
determination letter program with respect to qualified individually designed plans. As

5

part of this limited expansion, the IRS accepts determination letter applications for
certain qualified individually designed merged plans on an ongoing basis.

(10) Rev. Proc. 2022-4, 2022-1 IRB 161, sets forth the types of advice
provided by the Commissioner, Tax Exempt and Government Entities Division,
Employee Plans Rulings and Agreements Office, and the procedures for requesting
such advice, including procedures for issuing determination letters (a) on the qualified
status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership
plans under sections 401, 403(a), 409, and 4975(e)(7), and (b) except with respect to
an adopting employer of a pre-approved plan requesting a determination letter under
section 12 of Rev. Proc. 2022-4, on the status for exemption of any related trusts or
custodial accounts under section 501(a).

.02 Section 403(b) individually designed plans. R
ev. Proc. 2019-39 sets forth a
system of recurring remedial amendment periods for correcting form defects, first
occurring after June 30, 2020, in section 403(b) plans. Rev. Proc. 2019-39 defines a
form defect as (1) a provision that causes a plan to fail to satisfy the section 403(b)
requirements, (2) the absence of a provision that causes a plan to fail to satisfy the
section 403(b) requirements, (3) a provision that is integral to a section 403(b)
requirement that has been changed (either by statute, or in regulations or other
guidance published in the IRB), or (4) the absence from a plan of a provision required
by a change to the section 403(b) requirements (either by statute, or in regulations or
other guidance published in the IRB) or integral to the change. Rev. Proc. 2019-39 also
sets forth the plan amendment deadlines for correcting form defects and for adopting
discretionary amendments to section 403(b) individually designed plans. Section 7 of
Rev. Proc. 2019-39 sets forth a limited extension of the initial remedial amendment
period for section 403(b) individually designed plans.

S
ECTION 3. SUMMARY OF SIGNIFICANT MODIFICATIONS

.01 This revenue procedure modifies Rev. Proc. 2016-37 to permit Plan
Sponsors to submit determination letter applications for section 403(b) individually
designed plans. Beginning June 1, 2023, determination letter applications for section
403(b) individually designed plans generally may be submitted for an initial plan
determination, for a determination upon plan termination, and in certain other
circumstances identified by the IRS in guidance published in the IRB. However, the date
on which an application may first be submitted for an initial plan determination is
staggered over three dates (June 1, 2023, June 1, 2024, and June 1, 2025), depending
on the last digit of the Plan Sponsor’s employer identification number (EIN), in
accordance with the schedule set forth in section 12.01.

.02 This revenue procedure modifies the definition of form defect, as set forth in
Rev. Proc. 2019-39, with respect to a provision in, or an absence of a provision from, a
section 403(b) plan that is integral to a change in Section 403(b) Requirements. In
addition, this revenue procedure modifies the structure of the definition of form defect,
as set forth in Rev. Proc. 2019-39. See section 4.01(2).

6

.03 This revenue procedure incorporates the provisions of Rev. Proc. 2019-39
relating to the Remedial Amendment Period for section 403(b) individually designed
plan Form Defects first occurring after June 30, 2020. See section 5.02(2).

.04 This revenue procedure extends the expiration of the Remedial Amendment
Period for a Disqualifying Provision with respect to a provision of a new plan or the
absence of a provision from a new plan to the last day of the second calendar year
following the calendar year in which the plan is put into effect.
5
See section 5.03(1)(a).

.05 This revenue procedure extends the expiration of the Remedial Amendment
Period for a Disqualifying Provision with respect to a provision of a new governmental
plan within the meaning of section 414(d) or the absence of a provision from such a
plan to the later of: (1) the last day of the second calendar year following the calendar
year in which the plan is put into effect; or (2) 90 days after the close of the third regular
legislative session of the legislative body with the authority to amend the plan that
begins after the end of the plan’s initial plan year.
6
See section 5.03(2)(a).

.06 This revenue procedure modifies the eligibility rules for a Plan Sponsor to
obtain an individual plan determination. Under the revised rules, for example, a Plan
Sponsor that maintains a plan for which a determination letter has been issued as a
result of filing a Form 5307 (Application for Determination for Adopters of Modified
Volume Submitter Plans) is no longer ineligible to submit that plan for a determination
letter for an initial plan determination on a Form 5300 (Application for Determination for
Employee Benefit Plan).
7
See section 9.02.

.07 This revenue procedure modifies the scope of the IRS’s review of
individually designed plans submitted for a determination letter. Under the revised rules,
the IRS generally will consider in its review Qualification Requirements and Section
403(b) Requirements that are in effect, or that have been included on a Required
Amendments List, on or before the last day of the second calendar year preceding the
year in which the determination letter application is submitted. See section 10.01.

5
S ection 5.05(1) of Rev. Proc. 2016-37 provides that the remedial amendment period for a disqualifying
provision with respect to a provision of a new plan or the absence of a provision from a new plan is
extended to the later of: (1) the 15th day of the 10th calendar month after the end of the plan’s initial plan
year or (2) the “modified section 401(b) expiration date,” which is defined in section 5.05(1)(a) and (b) of
Rev. Proc. 2016-37.
6
Section 5.06(1) of Rev. Proc. 2016-37 provides that the remedial amendment period for a disqualifying
provision with respect to a provision of a new governmental plan within the meaning of section 414(d) or
the absence of a provision from such a plan is extended to the later: of (1) the date determined in section
5.05(1) of Rev. Proc. 2016-37 or (2) 90 days after the close of the second regular legislative session of
the legislative body with the authority to amend the plan that begins after the end of the plan’s initial plan
year.
7
Under section 4.03(1) of Rev. Proc. 2016-37, an employer that maintained a plan for which a
determination letter had been issued as a result of filing a Form 5307 was not permitted to submit that
plan for a determination letter for initial qualification.

7

SECTION 4. DEFINITIONS

.
01 General definitions.

(1) Disqualifying Provision.

(a) In general. For a qualified plan, the term “Disqualifying Provision”
means:

(i) a provision of a new plan, the absence of a provision from a new plan,
or an amendment to an existing plan that causes the plan to fail to satisfy the
requirements of the Code applicable to the qualification of the plan as of the date the
plan or amendment is first made effective;

(ii) a plan provision that has been designated, pursuant to § 1.401(b)-
1(b)(3), by the Commissioner, in guidance published in the IRB, as a disqualifying
provision by reason of a change in those requirements; or

(iii) the absence from a plan of a provision required by (or, if applicable,
integral to) a change in the qualification requirements of the Code.

(b) Designation of Disqualifying Provisions. P
ursuant to § 1.401(b)-1(b)(3),
the IRS designates a plan provision as a Disqualifying Provision if it:

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

(ii) is integral to a Disqualifying Provision described in section 4.01(1)(b)(i).

(2) Form Defect. For a section 403(b) plan, the term “Form Defect” means:

(a) a provision of a new plan, the absence of a provision from a new plan, or
an amendment to an existing plan that causes the form of the section 403(b) plan to fail
to satisfy the Section 403(b) Requirements applicable as of the date the plan or
amendment is first made effective;

(b) a plan provision that:

(i) results in the failure of the form of the section 403(b) plan to satisfy the
Section 403(b) Requirements by reason of a change in those requirements; or

(ii) is integral to a Form Defect described in section 4.01(2)(b)(i); or

(c) the absence from a plan of a provision required by (or, if applicable,
integral to) a change in the Section 403(b) Requirements.

8

(3) Plan Sponsor. The term “Plan Sponsor” means an employer that sponsors
a qualified individually designed plan for its employees or an eligible employer, as
described in section 403(b)(1)(A), that sponsors a section 403(b) individually designed
plan for its employees.

(4) Qualification Requirements. The term “Qualification Requirements” means
the requirements of sections 401(a), 403(a), 409, and 4975(e)(7), including
requirements provided in the Code, and in regulations or other guidance published in
the IRB.
8

(5) Remedial Amendment Period. The term “Remedial Amendment Period”
means the period during which a Plan Sponsor maintaining a qualified plan or
section 403(b) plan may correct Disqualifying Provisions or Form Defects in its plan
retroactive to the beginning of the period. As part of the correction of a Disqualifying
Provision or Form Defect within the remedial amendment period, a Plan Sponsor will be
considered to have satisfied the Qualification Requirements or Section 403(b)
Requirements, as applicable, if all provisions of the plan that are necessary to satisfy
those requirements have been adopted and made effective in form and operation from
the beginning of the remedial amendment period.

(6) Section 403(b) Requirements. The term “Section 403(b) Requirements”
means the requirements of section 403(b), including requirements provided in the Code,
and in regulations or other guidance published in the IRB.
9

.
02 Definitions related to Merged Plans.

(1) Date of a Corporate Merger, Acquisition, or Other Similar Business
Transaction. The term “Date of a Corporate Merger, Acquisition, or Other Similar
Business Transaction” means the effective date of the transaction as evidenced by a
corporate board resolution or written documentation signed and dated by persons duly
authorized to represent the entities involved.

(2) Date of the Plan Merger. The term “Date of the Plan Merger” means the
effective date of the Plan Merger as evidenced by (a) a corporate board resolution or
written documentation signed and dated by persons duly authorized to represent the
entities involved, or (b) a plan amendment.

8
Under this definition, a change in Qualification Requirements includes a statutory, regulatory, or other
guidance change that affects a requirement of section 401(a), 403(a), 409, or 4975(e)(7), without regard
to whether the change results in a Disqualifying Provision or merely permits the adoption of a
discretionary amendment.
9
Under this definition, a change in Section 403(b) Requirements includes a statutory, regulatory, or other
guidance change that affects a requirement of section 403(b), without regard to whether the change
results in a Form Defect or merely permits the adoption of a discretionary amendment.

9

(3) Merged Plan. The term “Merged Plan” means a plan that results from the
merger or consolidation of two or more qualified plans into a single qualified individually
designed plan pursuant to a Plan Merger.

(4) Plan Merger. The term “Plan Merger” means a merger or consolidation, as
described in § 1.414(l)-1(b)(2), that combines two or more qualified plans maintained by
previously Unrelated Entities into a single individually designed plan, and that occurs in
connection with a corporate merger, acquisition, or other similar business transaction
among Unrelated Entities that each maintained its own plan or plans prior to the Plan
Merger.

(5) Unrelated Entities.
The term “Unrelated Entities” means entities that are not
members of the same controlled group under section 414(b), the same set of trades or
businesses under common control under section 414(c), or members of the same
affiliated service group under section 414(m).

P
ART II – INDIVIDUALLY DESIGNED QUALIFIED AND SECTION 403(b) PLANS

SECTION 5. REMEDIAL AMENDMENT PERIOD FOR INDIVIDUALLY DESIGNED
QUALIFIED AND SECTION 403(b) PLANS

.01 I
n general. The provisions of this section 5 set forth the Remedial
Amendment Period for (1) Disqualifying Provisions in qualified individually designed
plans, and (2) Form Defects first occurring after June 30, 2020, in section 403(b)
individually designed plans.
10
A plan for which a Plan Sponsor does not correct a
Disqualifying Provision or Form Defect within the applicable Remedial Amendment
Period will not be considered to satisfy the Qualification Requirements or Section 403(b)
Requirements, as applicable.

.
02 Beginning dates of the Remedial Amendment Period.

(1) Disqualifying Provisions. Section 1.401(b)-1(d)(1) sets forth the dates on
which the Remedial Amendment Period begins for Disqualifying Provisions. Details
regarding the beginning dates of the Remedial Amendment Period are set forth in
sections 2.01(5), (6), and (7) of this revenue procedure.

(2) Form Defects. Unless another time is specified by the Commissioner in
guidance published in the IRB, the Remedial Amendment Period for a Form Defect
begins:

(a) in the case of a Form Defect with respect to a provision of, or absence of
a provision from, a new plan, on the date the plan is put into effect;

10
For Remedial Amendment Period rules for form defects first occurring before July 1, 2020, see
Rev. Proc. 2013-22, 2013-18 IRB 985, as clarified by Rev. Proc. 2017-18, 2017-5 IRB 743, and as
modified by Rev. Proc. 2019-39. A Form Defect as defined in section 4.01(2) of this revenue procedure
differs from the definition of a form defect first occurring before July 1, 2020.

10

(b) in the case of a Form Defect with respect to an amendment to an existing
plan (other than a Form Defect that is related to a change in Section 403(b)
Requirements, or that is integral to such a change, as described in paragraph (c) and
(d), respectively, of this section 5.02(2)), on the date the plan amendment is adopted or
put into effect, whichever is earlier;

(c) in the case of a Form Defect with respect to a provision that fails to
satisfy the Section 403(b) Requirements by reason of a change in those requirements,
on the date on which the change effected by an amendment to the Code or a change in
requirements provided in regulations or other guidance published in the IRB became
effective with respect to the plan; or

(d) in the case of a Form Defect with respect to a provision that is integral to
a Section 403(b) Requirement that has been changed, on the first day on which the plan
was operated in accordance with such provision, as amended.

.03 Expiration of Remedial Amendment Period.

(1) Plans that are not governmental plans within the meaning of section
414(d). Except as otherwise provided by statute or in regulations or other guidance
published in the IRB, the Remedial Amendment Period for Disqualifying Provisions and
Form Defects for plans that are not governmental plans within the meaning of
section 414(d) expires as follows:

(a) New plan.
The Remedial Amendment Period for a Disqualifying Provision
or Form Defect with respect to a provision of a new plan or the absence of a provision
from a new plan expires on the last day of the second calendar year following the
calendar year in which the plan is put into effect.

(b) A
mendment to existing plan. The Remedial Amendment Period for a
Disqualifying Provision or Form Defect with respect to an amendment to an existing
plan (other than an amendment described in paragraph (c) of this section 5.03(1))
expires on the last day of the second calendar year following the calendar year in which
the amendment is adopted or effective, whichever is later.

(c) Change in Qualification Requirements or Section 403(b) Requirements.
The Remedial Amendment Period for a Disqualifying Provision or Form Defect that
arises as a result of a change in Qualification Requirements or Section 403(b)
Requirements, as applicable, expires on the last day of the second calendar year that
begins after the issuance of the Required Amendments List (described in section 7) in
which the change in Qualification Requirements or Section 403(b) Requirements
appears.

(2) Plans that are governmental plans within the meaning of section 414(d).
Except as otherwise provided by statute or in regulations or other guidance published in

11

the IRB, the Remedial Amendment Period for Disqualifying Provisions and Form
Defects for plans that are governmental plans within the meaning of section 414(d)
expires as follows:

(a) New plan.
The Remedial Amendment Period for a Disqualifying Provision
or Form Defect with respect to a provision of a new governmental plan or the absence
of a provision from a new governmental plan expires on the later of:

(i) the last day of the second calendar year following the calendar year in
which the plan is put into effect; or

(ii) 90 days after the close of the third regular legislative session of the
legislative body with the authority to amend the plan that begins after the end of the
plan’s initial plan year.

(b) A
mendment to existing plan. The Remedial Amendment Period for a
Disqualifying Provision or Form Defect with respect to an amendment to an existing
governmental plan (other than an amendment described in paragraph (c) of this section
5.03(2)) expires on the later of:

(i) the last day of the second calendar year following the calendar year in
which the amendment is adopted or effective, whichever is later; or

(ii) 90 days after the close of the third regular legislative session of the
legislative body with the authority to amend the plan that begins after the calendar year
in which the amendment is adopted or effective, whichever is later.

(c) Change in Qualification Requirements or Section 403(b) Requirements.
The Remedial Amendment Period for a Disqualifying Provision or Form Defect with
respect to a governmental plan that arises as a result of a change in Qualification
Requirements or Section 403(b) Requirements, as applicable, expires on the later of:

(i) the last day of the second calendar year that begins after the issuance
of the Required Amendments List in which the change in Qualification Requirements or
Section 403(b) Requirements appears; or

(ii) 90 days after the close of the third regular legislative session of the
legislative body with the authority to amend the plan that begins on or after the date of
issuance of the Required Amendments List in which the change in Qualification
Requirements or Section 403(b) Requirements appears.

(3) Terminating plans. No
twithstanding sections 5.03(1) and 5.03(2), the
termination of a plan ends the plan’s Remedial Amendment Period and thus, generally
will shorten the Remedial Amendment Period for the plan. Accordingly, any retroactive
remedial plan amendments or other required plan amendments for a terminating plan
(that is, plan amendments required to be adopted to reflect Qualification Requirements

12

or Section 403(b) Requirements that apply as of the date of termination) must be
adopted in connection with the plan termination regardless of whether the requirements
are included on a Required Amendments List.

(4) Circumstances in which a Disqualifying Provision or Form Defect may not
be corrected retroactively during a Remedial Amendment Period. If it is not possible to
amend a plan retroactively during a Remedial Amendment Period so that all provisions
of the plan that are necessary to satisfy the Qualification Requirements or Section
403(b) Requirements related to a Disqualifying Provision or Form Defect, as applicable,
are made effective in operation for the whole Remedial Amendment Period, then the
Disqualifying Provision or Form Defect may not be corrected retroactively even if the
Plan Sponsor adopts a retroactive plan amendment that, in form, appears to satisfy
those requirements. A Plan Sponsor of an individually designed qualified plan or section
403(b) plan that cannot be corrected by an amendment during the applicable Remedial
Amendment Period may be able to correct the Disqualifying Provision or Form Defect
under the Employee Plans Compliance Resolution System. See Rev. Proc. 2021-30,
2021-31 IRB 172, or its successors.

S
ECTION 6. PLAN AMENDMENT DEADLINE

.01 Required plan amendment. Except as otherwise provided by statute or in
regulations or other guidance published in the IRB, the plan amendment deadline for
(1) a Disqualifying Provision in a qualified individually designed plan, or (2) a Form
Defect first occurring after June 30, 2020, in a section 403(b) individually designed plan,
is the date on which the Remedial Amendment Period with respect to the Disqualifying
Provision or Form Defect expires. See sections 5.03(1), (2) and (3) for the determination
of the expiration of the applicable Remedial Amendment Period.

.02 Discretionary plan amendment. Wi
th respect to a discretionary amendment
(that is, an amendment that is not made with respect to a Disqualifying Provision or
Form Defect), except as otherwise provided by statute or in regulations or other
guidance published in the IRB, the plan amendment deadline is the date described in
paragraph (1) or (2) of this section 6.02, as applicable.

(1) Plans that are not governmental plans within the meaning of section
414(d). In the case of a discretionary amendment to a plan that is not a governmental
plan within the meaning of section 414(d), the plan amendment deadline is the end of
the plan year in which the plan amendment is operationally put into effect. An
amendment is operationally put into effect when the plan is administered in a manner
consistent with the intended plan amendment (rather than existing plan terms). For
example, the deadline for adopting a discretionary amendment with respect to a
calendar year plan that increases participants’ accrued benefits and is operationally put
into effect during 2023 is December 31, 2023.

13

(2) Plans that are governmental plans within the meaning of section 414(d). In
the case of a discretionary amendment to a governmental plan within the meaning of
section 414(d), the plan amendment deadline is the later of:

(a) the end of the plan year in which the plan amendment is operationally put
into effect; or

(b) 90 days after the close of the second regular legislative session of the
legislative body with the authority to amend the plan that begins on or after the date the
plan amendment is operationally put into effect.

.03 No relief from the requirements of section 411(d)(6). This revenue procedure
does not provide relief from the requirements of section 411(d)(6) for any plan
amendments made to a qualified plan, including plan amendments adopted as a result
of changes to the Qualification Requirements.
11
Except to the extent permitted under
section 411(d)(6) and the regulations thereunder, under a statutory provision, or under
other guidance published in the IRB, section 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 section 411(d)(6), provided the amendment is adopted
and effective before the benefits accrue.

SECTION 7. REQUIRED AMENDMENTS LIST

.01 Required Amendments List to be published annu
ally. The Treasury
Department and the IRS publish an annual Required Amendments List that applies to
changes in Qualification Requirements and Section 403(b) Requirements. The Required
Amendments List establishes the date that the Remedial Amendment Period expires for
changes in Qualification Requirements and Section 403(b) Requirements set forth on
the list, as described in sections 5.03(1) and 5.03(2).
12
See also section 10, which
describes the scope of review by the IRS of a plan submitted for a determination letter.

.02 Items included on Required Amendments List. In general, an item will be
included on a Required Amendments List after guidance with respect to the item
(including any model amendment, if applicable) has been provided in regulations or
other guidance published in the IRB. However, in the discretion of the IRS, an item may
be included on a Required Amendments List in other circumstances, such as when a
statutory change is enacted, and it is anticipated that no guidance related to
implementation of the statutory change will be issued.

11
Section 411(d)(6) does not apply to section 403(b) plans. However, parallel rules in section 204(g) of
ERISA apply to ERISA-covered section 403(b) plans.

12
Notices setting forth the Required Amendments Lists can be found on the IRS website at
https://www.irs.gov/retirement-plans/required-amendments-l ist . The most recent Required Amendments
List is set forth in Notice 2021-64, 2021-50 IRB 869.

14

SECTION 8. OPERATIONAL COMPLIANCE LIST

Although a plan may have a delayed amendment deadline to comply with a
change in plan Qualification Requirements or a change in Section 403(b) Requirements,
the plan must be operated in compliance with those requirements from the effective
date of the change. To assist Plan Sponsors in achieving operational compliance, the
IRS provides an Operational Compliance List
13
that is updated periodically to identify
changes in Qualification Requirements and Section 403(b) Requirements that are
effective during a calendar year. However, a plan must comply operationally with each
relevant Qualification Requirement or Section 403(b) Requirement, as applicable, even
if the requirement is not included on an Operational Compliance List.

SECTION 9. CIRCUMSTANCES UNDER WHICH A PLAN MAY BE SUBMITTED FOR
A DETERMINATION LETTER

.01 I
n general. A Plan Sponsor of an individually designed plan may submit a
determination letter application for an initial plan determination, for a determination upon
plan termination, and in other circumstances, as described in sections 9.02, 9.04, and
9.06, respectively. In addition, a Plan Sponsor of a qualified individually designed plan
may submit a determination letter application for a determination with respect to a
Merged Plan, as described in section 9.05.
.02 I
nitial plan determination. (1) Statement of rule. A Plan Sponsor of an
individually designed plan may submit the plan for an initial plan determination on a
Form 5300 unless the plan previously had been filed for a determination letter on a
Form 5300 and had been issued a determination letter as an individually designed plan.
For purposes of the preceding sentence, a plan that had been issued a determination
letter as an individually designed plan includes a pre-approved plan that was treated as
an individually designed plan under section 8.06 of Rev. Proc. 2017-41 or section 9.05
of Rev. Proc. 2021-37, as applicable, at the time the determination letter was issued
with respect to the plan.
14

(2) Examples. Examples 1 through 4 address whether an initial plan
determination has been made with respect to a plan.

(a) Example 1: Determination letter issued with respect to individually
designed plan as a result of Form 5300 filing. Plan Sponsor A adopted Plan W, an
individually designed plan, in 2017. Plan Sponsor A submitted a determination letter
application on Form 5300 with respect to Plan W in 2019. A determination letter

13
The Operational Compliance List can be found on the IRS website at https://www.irs.gov/retirement-
plans/operational-compliance-list.
14
Rev. Proc. 2017-41 sets forth the procedures for issuing opinion letters regarding the qualification in
form of pre-approved plans under sections 401, 403(a), and 4975. Rev. Proc. 2021-37 sets forth the
procedures for issuing opinion letters regarding the satisfaction in form of section 403(b) pre-approved
plans with respect to the Section 403(b) Requirements. The Treasury Department and the IRS anticipate
updating these revenue procedures in future guidance.

15

previously had not been issued with respect to Plan W. A favorable determination letter
was issued with respect to Plan W in 2020. Because a determination letter was issued
as a result of Plan Sponsor A’s filing of a determination letter application on Form 5300
with respect to individually designed Plan W, an initial plan determination letter is
considered to have been issued with respect to the plan. Accordingly, Plan Sponsor A is
not eligible to submit a future determination letter application for an initial plan
determination with respect to Plan W on a Form 5300.

(b) E
xample 2: Determination letter issued with respect to pre-approved plan
as a result of Form 5307 filing. Plan Sponsor B adopted Plan X, an individually designed
plan, in 2015. In 2017, Plan Sponsor B amended Plan X by adopting a pre-approved
plan. A determination letter had not been issued with respect to Plan X while the plan
was individually designed; however, in 2017, after amending the plan to become a pre-
approved plan, Plan Sponsor B submitted a determination letter application for the plan
on a Form 5307 and received a favorable determination letter. Because the
determination letter issued with respect to Plan X was issued as a result of Plan
Sponsor B’s filing of a determination letter application on Form 5307 with respect to a
pre-approved plan, an initial plan determination is not considered to have been issued
with respect to Plan X. Accordingly, Plan Sponsor B is eligible to submit a future
determination letter application for an initial plan determination with respect to Plan X on
a Form 5300.

(c) Example 3: D
etermination letter issued with respect to pre-approved plan
as a result of leased employee determination. Plan Y is a nonstandardized qualified
defined contribution pre-approved plan. Plan Sponsor C has continuously administered
Plan Y as a pre-approved plan from the date of its establishment in 2005. A
determination letter previously has not been issued with respect to Plan Y. Plan
Sponsor C is otherwise eligible to submit a determination letter application. In 2022,
Plan Sponsor C submitted a determination letter application and included a request for
a ruling on the status of leased employees with respect to Plan Y. As required by
sections 12.03(3)(a) and 17.03 of Rev. Proc. 2022-4 (updated annually), Plan Sponsor
C submitted the application on a Form 5300. Because Plan Y is a pre-approved plan,
even though a determination letter was issued as a result of Plan Sponsor C’s filing of a
determination letter application on Form 5300, an initial plan determination letter is not
considered to have been issued with respect to Plan Y. Accordingly, Plan Sponsor C is
eligible to submit a future determination letter application for an initial plan determination
with respect to Plan Y on a Form 5300.

(d) Example 4: Determination letter issued with respect to pre-approved plan
treated as individually designed plan. Plan Sponsor D adopted Plan Z, a
nonstandardized qualified defined contribution pre-approved plan, in 2019. In 2021,
Plan Sponsor D made several amendments to Plan Z and submitted a determination
letter application on Form 5307 with respect to the plan, consistent with the
requirements of Rev. Proc. 2017-41. In connection with its review of Plan Z, the IRS
informed Plan Sponsor D that (1) due to the nature and extent of the amendments
made to the plan, Plan Z would, pursuant to section 8.06 of Rev. Proc. 2017-41, be

16

considered an individually designed plan, and (2) in order to request a determination
letter with respect to the plan, Plan Sponsor D would need to file a Form 5300.
Accordingly, Plan Sponsor D resubmitted Plan Z as an individually designed plan and
requested a determination letter on a Form 5300. A favorable determination letter was
issued with respect to the plan. Because Plan Z was considered an individually
designed plan when a determination letter was issued with respect to the plan, the
determination letter is considered an initial plan determination. Accordingly, Plan
Sponsor D is not eligible to submit a future determination letter application for an initial
plan determination with respect to Plan Z on a Form 5300.

.03 Timing of submission for section 403(b) plan initial plan determinatio
n. A
Plan Sponsor that is eligible to submit a section 403(b) individually designed plan for an
initial plan determination on a Form 5300 must submit the determination letter
application in accordance with the schedule set forth in section 12.01.

.04 Det
ermination upon plan termination. A Plan Sponsor of an individually
designed plan may submit a determination letter application for a determination upon
plan termination on a Form 5310 (Application for Determination for Terminating Plan) if
the application is filed in connection with plan termination. An application is deemed to
be filed in connection with plan termination if it is filed no later than the later of:

(1) one year from the effective date of the termination, or

(2) one year from the date on which the action terminating the plan is taken.

However, in no event may the application be filed later than 12 months from the date of
distribution of substantially all plan assets in connection with the plan termination.

.05 Merged Plans. A
Plan Sponsor of a qualified individually designed plan may
submit a determination letter application for a determination with respect to a Merged
Plan on a Form 5300 if the following requirements are satisfied:
15

(1) The Date of the Plan Merger occurs no later than the last day of the first
plan year that begins after the plan year that includes the Date of a Corporate Merger,
Acquisition, or Other Similar Business Transaction between Unrelated Entities, and

(2) A determination letter application for the Merged Plan is submitted within
the Merged Plan submission period. The Merged Plan submission period is the period
beginning on the Date of the Plan Merger and ending on the last day of the first plan
year of the Merged Plan that begins after the Date of the Plan Merger.
16

.06 Other circumstances. Consideration will be given annually to whether a Plan
Sponsor may submit a determination letter application in specified circumstances other

15
See section 8 of Rev. Proc. 2019-20 for a special sanction structure applicable to Merged Plans.
16
See section 6 of Rev. Proc. 2019-20, which provides an extended remedial amendment period
applicable to Merged Plans submitted during the Merged Plan submission period.

17

than for an initial plan determination, for a determination upon plan termination, and, in
the case of qualified plans, for a determination with respect to Merged Plans.
Circumstances that will be considered when evaluating whether to accept determination
letter applications for certain amended plans or types of amendments in plans in certain
future years, include, for example, significant law changes, new approaches to plan
design, and the inability of certain types of plans to convert to pre-approved plan
documents. In addition, the IRS’s current case load and resources available to process
determination letter applications will be significant factors in deciding if and when to
consider certain amended plans or types of amendments in plans under the
determination letter program. Taking into account comments already received and
based on an analysis of the factors listed in this section 9.06, including the IRS’s current
resources and case load, the IRS, during calendar year 2023, will accept determination
letter applications only for individually designed qualified and section 403(b) plans for an
initial plan determination and for a determination upon plan termination, and, with
respect to qualified plans, for a determination with respect to individually designed
Merged Plans. In section 16, the Treasury Department and the IRS request comments
on the additional situations in which the submission of a determination letter application
may be appropriate. The Treasury Department and the IRS intend to request, on a
periodic basis, additional comments relating to the expansion of the determination letter
program. Additional situations in which Plan Sponsors will be permitted to request
determination letters will be announced in guidance published in the IRB.

SECTION 10. SCOPE OF PLAN REVIEW

.01 Ongoing plans.
(1) Changes in Qualification Requirements or Section 403(b)
Requirements that have been or will be included on a Required Amendments List.
Except as otherwise provided in section 10.01(3), with respect to ongoing plans, the IRS
will consider, in reviewing changes in Qualification Requirements and Section 403(b)
Requirements that have been or will be included on a Required Amendments List, only
those changes that appear on a Required Amendments List issued on or before the last
day of the second calendar year preceding the year in which the determination letter
application is submitted.
17

(2) Qualification Requirements or Section 403(b) Requirements that have not
been and will not be included on a Required Amendments List. Except as otherwise
provided in section 10.01(3), with respect to ongoing plans, the IRS will consider, in
reviewing Qualification Requirements and Section 403(b) Requirements that have not
been and will not be included on a Required Amendments List, only those Qualification
Requirements and Section 403(b) Requirements that are in effect on or before the last

17
Generally, the Required Amendments List includes changes in Qualification Requirements and Section
403(b) Requirements that result in Disqualifying Provisions and Form Defects, respectively. See, for
example, Part III of Notice 2021-64, for a description of the content of the Required Amendments List.

18

day of the second calendar year preceding the year in which the determination letter
application is submitted.
18

(3) Exceptions provided in annual revenue procedure. Any exceptions to
section 10.01(1) and (2) will be provided in the annual revenue procedure that sets forth
the instructions for requesting determination letters from Employee Plans Rulings and
Agreements (annual revenue procedure) that applies with respect to the year in which
the determination letter application is submitted.
19

(4) Examples.
Examples 1 through 5 illustrate the IRS’s scope of plan review.

(a) E
xample 1: Change in Qualification Requirements that is included on a
Required Amendments List. Plan Sponsor A maintains Plan X, an ongoing qualified
individually designed plan. During 2024, Law L is enacted and included on the 2024
Required Amendments List. Plan Sponsor A is eligible to submit a determination letter
for Plan X pursuant to section 9.02 and submits a determination letter application with
respect to Plan X during the 2026 calendar year. The IRS will consider Law L in its
review of Plan X because Law L was included on the 2024 Required Amendments List
(a Required Amendments List issued on or before the last day of the second calendar
year preceding the year in which the determination letter application is submitted).

(b) Example 2: Change in Qualification Requirements that has not yet been
included on a Required Amendments List. The facts are the same as in Example 1,
except that, during 2024, Law M also is enacted. Although Law M is a law that will be
included on a Required Amendments List, Law M has not been included on a Required
Amendments List as of December 31, 2024, because guidance has yet to be issued
with respect to Law M. During 2024, Plan Sponsor A adopts an amendment that reflects
Law M. Even though Plan Sponsor A adopted an amendment to reflect Law M, the IRS
will not consider Law M in its review of Plan X because Law M was not included on a
Required Amendments List that was issued on or before December 31, 2024 (the last
day of the second calendar year preceding the year in which the determination letter
application is submitted).

(c) Example 3: C
hange in Qualification Requirements that is included on a
Required Amendments List after IRS review cutoff date. The facts are the same as in
Example 1, except that, during 2025, Law N also is enacted. Law N is included on the
2025 Required Amendments List. During 2025, Plan Sponsor A adopts an amendment
that reflects Law N. Even though Law N is included on a Required Amendments List
and Plan Sponsor A adopted an amendment to reflect Law N, the IRS will not consider

18
For a list of the most recent changes in Qualification Requirements and Section 403(b) Requirements,
see the Operational Compliance List. With respect to qualified plans, see the Cumulative Lists for years
beginning on or after 2005. Notices setting forth the Cumulative Lists can be found on the IRS website at
Cumulative List of Changes in Retirement Plan Qualification Requirements | Internal Revenue Service
(irs.gov). With respect to section 403(b) plans for years prior to 2016, see §§ 1.403(b)-1 through -11 and
the requirements on the Cumulative Lists that are also applicable to section 403(b) plans.
19
Rev. Proc. 2022-4 is the annual revenue procedure for 2022.

19

Law N in its review of Plan X because Law N was not included on a Required
Amendments List that was issued on or before December 31, 2024 (the last day of the
second calendar year preceding the year in which the determination letter application is
submitted).

(d) E
xample 4: Scope-of-review exception set forth in annual revenue
procedure. The facts are the same as in Example 3, except that, pursuant to section
10.01(3), the IRS sets forth an exception to the general rule by providing in Rev. Proc.
2026-4 that it will consider Law N in its review of plans submitted for a determination
letter during 2026. As a result, even though Law N would require an amendment be
made to the plan but generally would not be considered by the IRS in its review of a
plan submitted during 2026 because Law N was not included on a Required
Amendments List issued on or before December 31, 2024 (the last day of the second
calendar year preceding the year in which the determination letter application is
submitted), the IRS will consider Law N in its review of Plan X.

(e) E
xample 5: Change in Qualification Requirements that is not included on
a Required Amendments List and is effective after IRS review cutoff date. The facts are
the same as in Example 1, except that, during 2025, Law O also is enacted and is in
effect as of January 1 of that year. Law O would not appear on a Required Amendments
List because it is a new discretionary provision. During 2025, Plan Sponsor A adopts a
discretionary amendment that reflects Law O. Even though Plan Sponsor A adopted a
discretionary amendment to reflect Law O, the IRS will not consider Law O in its review
of Plan X because Law O is effective after December 31, 2024 (the last day of the
second calendar year preceding the year in which the determination letter application is
submitted).

.02 Terminating plans. Terminating plans will be reviewed for amendments
required to be adopted in connection with plan termination (see section 5.03(3)).

.03 Plan restatement. An individually designed plan generally must be restated,
at the time the determination letter application is submitted, to incorporate all previously
adopted amendments. However, a terminating plan need not be restated.

.04 A determination letter does not consider issues under Title I of ERISA. A
determination letter issued under this revenue procedure will not address issues under
Title I of ERISA. See section 11 for details regarding a Plan Sponsor’s reliance on a
determination letter.

.05 Section 403(b) plans for which a determination letter will not be issued. A
determination letter will not be issued for the following section 403(b) individually
designed plans:

(1) a TEFRA church defined benefit plan (see § 1.403(b)-10(f)(2)); or

(2) a plan grandfathered under Rev. Rul. 82-102, 1982-1 CB 62.

20

.06 A
determination letter does not consider issues related to a section 403(b)
plan’s coverage of multiple employers that are not in a single controlled group. For a
section 403(b) plan that is not a governmental plan within the meaning of section
414(d), a determination letter does not express an opinion, and may not be relied upon,
with respect to whether the plan meets any requirements that apply due to a plan’s
coverage of multiple employers that are not in a single controlled group for purposes of
section 414(b), (c), (m), or (o) and the regulations thereunder. For a section 403(b) plan
that is a governmental plan within the meaning of section 414(d), a determination letter
does not express an opinion, and may not be relied upon, with respect to whether the
plan meets any requirements that apply due to a plan’s coverage of multiple employers
that are not aggregated in a single controlled group in a manner consistent with
Notice 89-23, 1989-1 CB 654.

S
ECTION 11. RELIANCE ON DETERMINATION LETTERS

Section 23 of Rev. Proc. 2022-4 (updated annually) discusses reliance on a
determination letter, including the effect of subsequent amendments made to the plan.
For example, under section 23.04 (and under a future annual revenue procedure with
respect to section 403(b) plans), in general, a Plan Sponsor that maintains an
individually designed qualified plan or section 403(b) plan for which a favorable
determination letter has been issued and that is otherwise entitled to rely on the
determination letter may not continue to rely on the determination letter with respect to a
plan provision that is subsequently amended (including any other plan provision that
may be affected by the amended provision) or that is subsequently affected by a
change in Qualification Requirements or Section 403(b) Requirements. However, a Plan
Sponsor may continue to rely on a determination letter with respect to plan provisions
that are not amended (or affected by an amendment) and plan provisions that are not
affected by a change in Qualification Requirements or Section 403(b) Requirements. In
addition, a Plan Sponsor that adopts a sample or model amendment issued by the IRS
on a word-for-word basis (or adopts an amendment that is substantially similar to a
sample or model amendment in all material respects) may continue to rely on a
previously issued determination letter.

SECTION 12. TIMING OF SUBMISSION OF DETERMINATION LETTER
APPLICATIONS FOR SECTION 403(b) PLANS

.
01 Initial plan determination. A Plan Sponsor may submit a section 403(b)
individually designed plan for an initial plan determination on or after the submission
date applicable with respect to the Plan Sponsor’s EIN as provided in the schedule set
forth in this section 12.01. Thus, for example, a Plan Sponsor with an EIN ending in 3
may submit a determination letter application on June 1, 2023, or any later date.

21

If the EIN of the Plan Sponsor
ends in:
A determination letter
application may be submitted
beginning on:
1, 2, or 3 June 1, 2023
4, 5, 6, or 7 June 1, 2024
8, 9, or 0 June 1, 2025

.02 Determination upon plan termination. Beginning on or after June 1, 2023, a
Plan Sponsor may submit a section 403(b) individually designed plan for a
determination upon plan termination (without regard to the schedule in section 12.01).

S
ECTION 13. SPECIAL NOTICE AND DISCLOSURE REQUIREMENTS FOR
SECTION 403(b) PLANS

.
01 Notice to interested persons. Under this revenue procedure, notice that an
application for an advance determination regarding whether the form of a section 403(b)
plan satisfies the Section 403(b) Requirements must be given to all interested persons
in a manner described in the annual revenue procedure for the year in which a
determination letter application is filed.
20

.02 Disclosure requirements. The requirements of section 6110, relating to the
public inspection of written determinations, apply to determination letter applications
submitted under this revenue procedure for section 403(b) individually designed plans.
21

See the annual revenue procedure applicable for the year in which a determination
letter is filed for disclosure requirements applicable to section 403(b) individually
designed plans.

PART III – EFFECT ON OTHER DOCUMENTS, EFFECTIVE DATE, PUBLIC
COMMENTS, DRAFTING INFORMATION

SECTION 14. EFFECT ON OTHER DOCUMENTS

.01 Parts I, II, and IV of Rev. Proc. 2016-37 are clarified, modified, and
superseded.

.02 The last sentence of section 8.04 of Rev. Proc. 2017-41 is modified.

20
Under section 7476, notice that an application for an advance determination regarding whether the
form of a qualified plan satisfies the Qualification Requirements must be given to all interested parties.
Section 7476 does not apply to section 403(b) plans. See the annual revenue procedure for the year in
which a determination letter is filed for a more detailed description of the notice to interested parties and
notice to interested persons requirements. The notice to interested persons requirement for
section 403(b) plans will appear in a future annual revenue procedure.
21
The public inspection requirements of section 6104 apply only to determination letter applications
submitted for qualified plans. Section 6104(a)(1)(B) provides that any application filed with respect to the
qualification of a pension, profit-sharing, or stock bonus plan under section 401(a) or 403(a) shall be open
to public inspection at such times and in such places as the Secretary may prescribe.

22

.03 Sections 5 and 6 of Rev. Proc. 2019-39 are clarified, modified, and
superseded.

.04 Section 5 of Rev. Proc. 2019-20 is superseded.
SECTION 15. EFFECTIVE DATE
This revenue procedure is effective November 7, 2022.
SECTION 16. PUBLIC COMMENTS
Comments are requested on specific types of plans for which the Treasury
Department and the IRS should consider accepting determination letter applications in
circumstances other than for an initial plan determination, for a determination upon plan
termination, and for a determination with respect to Merged Plans. As provided in
section 9.06, circumstances for consideration include, for example, significant law
changes, new approaches to plan design, and the inability of certain types of plans to
convert to pre-approved plan documents. Comments that suggest expanding the scope
of the program for a particular type of plan should not merely state the type of plan, but
should also specify the issues applicable to that type of plan that would justify review of
that particular plan type under the determination letter program. Such issues may
include specific plan features and special plan designs applicable to that type of plan, or
unresolved questions with respect to whether that type of plan satisfies the Qualification
Requirements or Section 403(b) Requirements, as applicable, in form. Comments
should be submitted in writing by February 28, 2023, and should include a reference to
Rev. Proc. 2022-40. Comments may be submitted in one of two ways: (1) Electronically
via the Federal eRulemaking Portal at www.regulations.gov (
type “IRS Revenue
Procedure 2022-40 in the search field on the Regulations.gov home page to find this
revenue procedure and submit comments); or (2) By mail to: the Internal Revenue
Service, Attn: CC:PA:LPD:PR (Rev. Proc. 2022-40), Room 5203, P.O. Box 7604, Ben
Franklin Station, Washington, D.C. 20044. The Treasury Department and the IRS will
publish for public availability any comment submitted electronically or on paper to its
public docket.

D
RAFTING INFORMATION

The principal author of this revenue procedure is Angelique Carrington of the
Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and
Employment Taxes). For further information regarding this revenue procedure, contact
Robin Joecken of Employee Plans at (513) 975-6365 (not a toll-free number).