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IRS Modifies M&P and Volume Submitter Determination Letter Procedures

In Revenue Procedure 2011-49, the Internal Revenue Service (IRS) has modified the procedures by which it issues opinion and advisory letters to Master or Prototype (M&P) and Volume Submitter retirement plans (together, pre-approved plans).  In addition, the guidance clarifies the limited types of employermodifications and amendments that can be made without causing an M&P or Volume Submitter plan to fail to be “identical” to an approved M&P or Volume Submitter plan (and, therefore, to fail to be covered by the pre-approved plan’s advisory or opinion letter).  Acceptable changes include the following:

  • Selecting options permitted under the applicable plan 
  • Specifying or changing the effective date of a provision (to the extent allowed under the applicable plan)
  • Adopting certain interim or discretionary amendments
  • Adopting certain IRS-approved model or sample amendments 

Prior guidance that allowed employers to modify or amend plans to correct typographical errors and/or cross-references has been eliminated.

The new guidance also provides that neither M&P opinion letters nor Volume Submitter advisory letters will cover hybrid plans, plans with section 401(h) accounts (medical benefits), or plans covered by Internal Revenue Code Section 414(x) (small employer combined defined benefit/defined contribution plans).  Numerous other pre-approved plan filing requirements are specified in the guidance (revising Revenue Procedures 2005-16 and 2007-44), including, for example, requirements that amendments adopted by a pre-approved sponsor or practitioner on behalf of adopting employers must be provided to the adopting employers.

Mass submitters, sponsors, practitioners and adopting employers should review Revenue Procedure 2011-49 prior to undertaking opinion or advisory letter submissions or amendments.  

© 2021 McDermott Will & EmeryNational Law Review, Volume I, Number 307
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About this Author

Todd A. Solomon apension 401k attroney  McDermott Will & Emery LLP, Chcago
Partner

Todd A. Solomon is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Todd focuses his practice primarily on designing, amending, and administering pension plans, profit sharing plans, 401(k) plans, employee stock ownership plans, 403(b) plans, and nonqualified deferred compensation arrangements.  He also counsels privately and publicly held corporations and tax-exempt entities regarding fiduciary issues under ERISA, employee benefits issues involved in corporate transactions, executive compensation matters, and the implementation of...

312-984-7513
Kay Kemp, employee benefits advisor, McDermott Will Emery, Chicago law firm
Professional Advisor

Kay Kemp* is a Professional Advisor in the Employee Benefits, Compensation, Labor & Employment practice group of McDermott Will & Emery LLP and is based in the Firm's Chicago office.

Kay has over 30 years of experience in the employee benefits field, including experience both as a consultant and in industry. She regularly consults with public, private and not-for-profit employers on the design, administration, and tax impact of all types of employee benefit plans. She counsels clients on their nonqualified deferred compensation...

312-984-6881
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