In 2015, the IRS announced a dramatic curtailment of its determination letter program for individually designed plans. Previously, plan sponsors were permitted to submit their plans for review by the IRS every five years in order to obtain a determination letter stating the plan was qualified under the tax code. If a plan timely adopted interim amendments during the remedial amendment cycle, then it would have until the end of the remedial amendment cycle to correct any qualification failures. However, due to limited agency resources, the IRS eliminated the five-year remedial amendment cycle and announced it would no longer issue determination letters for individually designed plans outside of initial qualification and termination, effective January 1, 2017.1
Recognizing the difficulties many plans would face, the IRS has sought to lessen the impact of the changes in several ways.2 For example:
- Expiration dates on prior determination letters no longer apply and new letters will not include an expiration date.
- The IRS has begun annually publishing a Required Amendments List, which establishes the amendment deadline for an individually designed plan to adopt a disqualifying amendment. Unless otherwise noted, this deadline is the end of the second calendar year following the year in which the list containing the required amendment is issued. The IRS has stated that a change to qualification requirements will not appear on the Required Amendments List until the IRS issues regulatory or other published guidance (including any model amendments).
- The IRS has restructured and liberalized its approach to issuing opinion letters for pre-approved plans to encourage adoption. Pre-approved plans have a six-year remedial amendment cycle.
- The IRS has stated that it will consider opening up the Determination Letter program in the future for certain situations, but thus far has yet to do so.
While the IRS has taken steps to assist plans, challenges still remain. For instance, determination letters provide assurances of a plan’s continued qualification, such as in corporate transactions, for participant rollovers, or during plan audits. In addition, pre-approved plans are not viable options for many types of plans. For instance, pre-approved plan opinion letters will not be issued for multiemployer plans. Also, some employers need or desire more customization than a pre-approved plan can offer. As a result, plans will continue to face challenges resulting from the determination letter program changes and it remains to be seen what the long-term impact will be.
Not intended as legal advice.
- IRS Announcement 2015-19, available at: https://mmpl-law.com/wp-content/uploads/IRS-Announcement-2015-19.pdf.
- Rev. Proc. 2016-37, available at https://mmpl-law.com/wp-content/uploads/Rev-Proc-2016-37.pdf; Rev. Proc. 2017-41, available at: https://mmpl-law.com/wp-content/uploads/Rev-Proc-2017-41.pdf.