Retirement Plans FAQs regarding Governmental Plan Determination Letters
These frequently asked questions and answers provide general information and should not be cited as any type of legal authority. They provide the user with information responsive to general inquiries. Because these answers do not apply to every situation, yours may require additional research.
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1. What plan documentation does a governmental plan have to submit to the IRS when applying for a determination letter?
Generally, the IRS requires a plan sponsor to submit a plan in restated form when applying for a determination letter. In addition to a complete copy of the plan and trust, the application should contain:
- the most recent plan determination letter, if any, and any subsequently adopted amendments; or
- written verification that all required plan amendments have been timely adopted, including those stated in the Cumulative List for the cycle in which the application is filed (see Rev. Proc. 2007-44).
The IRS recognizes that governmental plans may not have a single cohesive plan document. The IRS is willing to work with a plan sponsor whose plan document consists of documents from various sources and who is unable to submit a restated plan, provided the sponsor can submit selected material in an organized manner so that IRS reviewers can readily determine the applicable plan language.
A governmental plan sponsor may submit:
- a working copy of the plan in a restated format even if the plan has not been adopted in that format (to assist the IRS in its review of the plan), along with copies of timely adopted amendments; or
- a summary of the plan and all amendments, and verification that the documents were timely adopted.
The sponsor of a governmental plan can also submit an application that does not include a restated plan or amendment summary. For example, the sponsor could submit portions of a statute applicable to the governmental plan containing general plan provisions along with other documents binding on the plan and containing additional plan language including, if necessary, provisions of regulations, ordinances and other state rules or policies applicable to the plan under state law.
If amendments are summarized but not submitted, the IRS may, in its discretion, request the applicant to submit all or some of the amendments for verification purposes during the IRS’s review of the determination letter request. The IRS may determine, based on the contents and sufficiency of the application, the extent of the plan document review (see Rev. Proc. 2012-6 (revised annually)). A failure to disclose a material fact or misrepresentation of a material fact on the application may adversely affect the reliance that would otherwise be afforded to the plan sponsor by the favorable determination letter. Such failure could include the failure to submit an accurate or complete summary of plan amendments.
2. Will the IRS allow a governmental plan that has never received a determination letter to apply for one now, without submitting documentation for all years of the plan’s existence?
Yes. While the IRS may, as part of the application process, request verification of prior plan documentation, verification of timely amendment for GUST is generally sufficient for governmental plans.
3. What if the plan has not been timely amended and has never received a determination letter or received one a long time ago?
If a plan has been timely amended, it can submit a request for a determination letter without proof of all amendments since its inception; see Q&A 2 above. However, if a plan has not made amendments timely, it should be submitted under the Voluntary Correction Program of the Employee Plans Compliance Resolution System (also see Revenue Procedure 2008-50).
4. What cycle applies to a volume submitter governmental plan?
A volume submitter governmental plan is under the 6-year cycle applicable to pre-approved plans, rather than the 5-year cycle for individually designed plans (see Rev. Proc. 2007-44). Practitioners of volume submitter plans have already submitted applications for advisory letters on these plans and adopting employers should have adopted the approved plans during the two-year window that closed on April 30, 2010 (see Announcement 2008-23).
5. Will the IRS require a redlined plan document as stated in Rev. Proc. 2011-6?
No. The IRS will not require redlining.
6. Will the IRS require submissions every year to cover all pension law changes passed by state legislatures?
No. Amendments or a summary of the amendments, as described in Q&A 1 above, should only be submitted to the IRS when an application is made for a determination letter. Individually designed plans should submit an application once every five years, on-cycle (see Rev. Proc. 2007-44).
7. Are a determination letter and a private letter ruling redundant?
No. A determination letter provides reliance on the form of the plan. A private letter ruling interprets and applies the tax laws to a taxpayer’s specific set of facts, but does not generally address the terms of a plan.
8. When do governmental plans need to comply with the final regulations regarding permissible normal retirement ages?
The IRS and Dept. of Treasury intend to amend the final regulations to change the effective date for governmental plans to annuity starting dates that occur in plan years beginning on or after the later of:
- January 1, 2015, or
- the close of the first regular legislative session of the legislative body with the authority to amend the plan that begins on or after the date that is 3 months after the final regulations are published in the Federal Register (see Notice 2012-29)
Governmental plan sponsors may rely on Notice 2012-29 with respect to the extension until such time as the final regulations are so amended.
9. What will be the expiration date on determination letters issued for governmental plans submitted during Cycle E?
Governmental plans were given a one time option to file during Cycle C or Cycle E. Since the option is only a one-time modification, the filing cycle for the governmental plan will continue to be Cycle C. This means that the determination letter issued for a governmental plan application filed during Cycle E will expire at the end of the next Cycle C (January 31, 2014) (see Rev. Proc. 2007-44).
