IRC §6104(a)(1)(B) requires that the following employee plans documents be open to public inspection at such times and in such places as the Secretary of Treasury may prescribe if maintained by the Internal Revenue Service (IRS); but, only with respect to plans having more than 25 participants:

Effective January 1, 1979, prohibited transaction functions, with certain exceptions, have been transferred to the Department of Labor (DOL) pursuant to the President’s Employee Retirement Income Security Act Reorganization Plan No. 4, approved by Congress on October 13, 1978.

Generally, the Reorganization Plan gives DOL the authority for fiduciary responsibility over prohibited transactions matters, while giving the IRS authority to administer the minimum participation, vesting and funding standards. Inquiries on Form 5500, Annual Return/Report of Employee Benefit Plan return requirements and on return processing should be addressed to:

Inquiries on applications and IRS determinations should be referred to TEGE Customer Accounts Services. The toll-free telephone number is: 1-877-829-5500.

IRC §6104(a)(2) authorizes the IRS to disclose any application referred to in IRC §6104(a)(1)(B), and any other papers developed by the IRS which relate to such application, to Congressional committees in accordance with IRC §6103(f) .

To the extent that the requested information is not otherwise available for public inspection under IRC §6104, the requirements of IRC §6103(f) must be complied with prior to release of information. For further instructions see IRM 11.3.4, Congressional Inquiries.

IRC §6104(b) requires IRS personnel to make available for public inspection the information which is required to be furnished to the IRS by IRC §6058 (annual information returns containing information with respect to the qualification, financial condition, and operations of pension, annuity, stock bonus, or profit-sharing plans), together with the names and addresses of such organizations and trusts.

Due to an agreement reached between the IRS and the DOL, public inspection of all categories of Form 5500, Employee Plan Returns, are handled by the DOL. See IRM 11.3.10.8 below, for a description of the returns and instructions for obtaining the returns.

The Freedom of Information Act (FOIA), 5 USC 552, IRC §6104(a)(1)(B) and IRC §6104(b) all make certain documents available to the public. This overlap presents no direct statutory conflict since the disclosure of information or documents as required by IRC 6104 preempts the disclosure requirements of the FOIA.

Treasury Regulation 301.6104 sets forth the IRS’s interpretation of the provisions and procedures for making IRC §6104 information available for public inspection.

The term participant means any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit. See 29 USC 1002 (7).

The term plan participant includes, but is not limited to:

The term authorized representative means the representative of a plan participant designated by the plan participant in a written authorization to inspect material described in IRC §6104(a)(1)(B). The written authorization should specify that the representative is authorized to inspect the material.

The term application for a determination letter includes the documents which the applicant files with respect to the qualification of a pension, profit-sharing, or stock bonus plan under IRC §401(a) or IRC §403(a), and individual retirement accounts and annuities under IRC §408(a), IRC §408(b), and IRC §408(c). This includes only applications for determination letters filed with the IRS after September 2, 1974.

A supporting document is any statement or document submitted in support of an application for a determination letter which is not specifically required by the application form or the IRS.

Generally, material open to public inspection under IRC §6104(a)(1)(B) includes the application for a determination letter filed after September 2, 1974 (if the plan has 26 or more participants), and supporting documents and letters or documents issued by the IRS after that date. However, information with regard to compensation (including deferred compensation) of any individual must be excised.

Documents relating to plans with 25 or fewer participants are available only to plan participants, the plan sponsor, or their authorized representatives.

Letters or documents issued by the IRS which are disclosable under IRC §6104(a)(1)(B)(iv) include, but are not limited to:

Generally, an administrative case file will be established for each complete determination letter application received under ERISA. This employee plan file will consist of the application, attached supporting documents, and other materials described in this subsection.

The EP Specialist is responsible for properly arranging the material in the administrative file.

The right side of the administrative file may contain the following disclosable documents open to public inspection:

See Exhibit 11.3.10-1 , Employee Plan Documents Open for Inspection for a list of other employee plans documents open for inspection.

The left side of the administrative file may contain the following documents not opened to public inspection under IRC §6104:

IRC §6104(a)(1)(C) provides that certain names and compensation shall not be open to public inspection.

The IRS will withhold from public inspection (including inspection by a plan participant or his/her authorized representative) information contained in any application/document, or other documents filed by the applicant or issued by the IRS from which the compensation (including deferred compensation) of an individual can be ascertained. The compensation information may be excised.

IRC §6104(a)(1)(D) provides that, upon the request of the organization submitting any supporting papers described in IRC §6104(a)(1)(B) the IRS shall withhold from public inspection any information which it determines relates to any trade secret, patent, process, style of work or apparatus if the disclosure of such information would adversely affect the organization.

A request to withhold information should be filed as a separate document with the same IRS office where the application is or was filed. It should clearly identify the material desired to be withheld (the document, page, paragraph, and line) and the specific reasons why the information should not be open to public inspection.

IRC §6104(a)(1)(D) also provides that the IRS shall withhold from public inspection any information contained in supporting papers which the IRS determines would adversely affect the national defense.

In the case of a pension, profit-sharing or stock bonus plan (or an individual retirement arrangement) referred to in IRC §6104(a)(1)(B) with 25 or fewer participants, the application for a determination letter filed after September 2, 1974, supporting documents, and letters or documents issued by the IRS after that date may only be inspected by a plan participant or his/her authorized representative.

Information with regard to compensation (including deferred compensation) of any individual, as shown on Form 5302, must be deleted.

When a plan with 25 or fewer plan participants files an application or annual return which shows that the number of participants has increased to 26 or more, all prior applications, or supporting documents, and other documents received or issued by the IRS after September 2, 1974, will be open to public inspection regardless of the number of plan participants indicated on any prior application.

When a plan with 26 or more plan participants files an application which shows that the number of participants has decreased to 25 or fewer, supporting documents relating to such application, and any other documents received or issued by the IRS after the date of receipt of that application may only be inspected by a plan participant or his/her authorized representative.

The application for a determination letter and supporting documents will be open to inspection by a plan participant or his/her authorized representative whether or not the application is withdrawn by the applicant and whether or not the IRS determines that the plan is qualified.

In dealing with questions from plan participants regarding the status of an application for termination of a plan, the participant may be advised that the application is pending. Upon completion of IRS action, the participant may be advised as to whether or not the application has been approved.

Questions relating to plan benefits of terminated plans should be directed to the plan administrator, who is responsible for notifying the participants of their benefits under the plan.

The application for termination of a plan, Form 5310, and the determination letter issued by the IRS is available for inspection by a plan participant or his/her authorized representative.

Any material open to inspection under IRC §6104(a)(1)(B) will be available for public inspection only upon written request to the IRS.

DOL may establish their own requirements for public access.

Individuals may be advised that many Forms 5500 submitted to the DOL are available on the website at: http://www.freeerisa.com.

Responsibility for IRC §6104(a)(1)(B) disclosures is shared with the local Disclosure Office and the Employee Plans personnel involved in the inspection.

Requests for documents relating to the following subject matter should be directed to the Office of Governmental Liaison and Disclosure, Headquarters, for handling:

The pre-approved program is maintained in Cincinnati, Ohio. Requests for documents relating to this program would include:

The address for these requests is as follows:

The information required to be furnished by IRC §6058, together with the names and addresses of such organizations and trusts shall be made available to the public at such times and in such places as the Secretary of Treasury may prescribe.

Returns in this category include:

Pursuant to agreement between the IRS and the Department of Labor (DOL), public inspection of all categories of Form 5500 (except Form 5500-EZ, Schedule B which is not open for public inspection) is handled by DOL.

Fees for Form 5500 series are established in accordance with DOL policies. Requests for copies of these returns should be sent to:

There will be a charge for copies furnished by the IRS in accordance with standard FOIA rates associated with category of requestor. See IRM 11.3.5, Fees.

Forms 5500 filed with respect to employee welfare benefit plans are not governed by IRC §6104. These reports are required by section 104(a)(1) of Title I of ERISA and are open to public inspection under section 106 of Title I. Requests for Forms 5500 should be sent to the DOL address indicated in (6) above.

In accordance with IRC §6103(l)(2) and 26 CFR 301.6103(l)(2), the IRS may disclose certain returns and return information to the Department of Labor (DOL) or the Pension Benefit Guaranty Corporation (PBGC) for purposes of the administration of Titles I or IV of the Employment Retirement Income Security Act of 1974 (ERISA).

Returns and return information may also be disclosed to these agencies for the purpose of conducting research and studies authorized by ERISA. Instructions regarding such disclosures are described in IRM 11.3.29.5, Administration of Employee Retirement Income Security Act - Department of Labor and Pension Benefit Guaranty Corporation.

Nothing in this text shall be construed to deny officers and employees of the DOL or the PBGC the right to inspect return information available to the public under IRC §6104.

The Employee Plan Master File (EPMF) is the IRS’s working file of data from applications filed with respect to the qualification or the exemption from tax of a pension, profit-sharing, or stock bonus plan, as well as from the Form 5500 series returns these plans file annually.

The input is now mostly taken from the Annual Information Return (public inspection form) thus making more information obtainable by the public and with less scrutiny by disclosure officials.

The general public may request information from the Employee Plans Master File on a reimbursable basis. However, the extracts are limited to only the data elements available to the public.

To obtain an extract of the EPMF, the requester must sign a contract with the IRS and pay a fee of $400.00 plus 2 cents per printed record, or $400.00 plus 1.2 cents per tape or CD-ROM record, per entity.

Requests from the public, State and local governments, Congress, etc., for information available on the EPMF, should be forwarded to:

The TEGE Business Systems Planning Office will comply with the request subject to the provisions of IRC §6104.

In view of the provisions of IRC §6103(a), any information which the IRS gathers, receives, or develops regarding an employer plan or trust is confidential and may not be disclosed except as authorized by the Internal Revenue Code.

Any information obtained or developed by the IRS during its examination of a pension plan’s and/or trust’s tax-exempt status is not available for public inspection under IRC §6104.

This information would include such documents as work papers, correspondence, reports and informants’ letters.

If these documents contain information which should have been filed with the IRS and would have been made available for public inspection if filed, then those specific portions of the documents may be disclosed.

In connection with official duties, it may become necessary for IRS personnel to contact an officer of the employer plan and/or trust, their employees, or other third parties. These officers, employees, or third parties may also contact IRS personnel. The disclosure of information in these situations will generally be governed by IRC §6103(c), IRC §6103(e), IRC §6103(h)(4), or IRC §6103(k)(6).

With the exception of information available to the public under IRC §6104(a)(1)(B) and IRC §6104(b), the disclosure of information concerning employee plans may be governed by other provisions of the IRC. See IRC §6103 or IRC §4424.

The discussions in other sections of 11.3 concerning the disclosure of returns and return information also applies to the treatment of employee plans when outside of the purview of IRC §6104(a)(1)(B) and IRC §6104(b). Consult the Table of Contents of Chapter 11.3 for a description of the coverage of those sections.