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June 20, 2019

IRS Reopens Determination Letter Program for Two Major Groups of Plans

In response to periodic requests to expand the determination letter program, the Internal Revenue Service (“IRS”) has issued welcome guidance in Revenue Procedure 2019-20 (May 1, 2019). The guidance opens up the determination letter program for statutory hybrid plans (e.g., cash balance plans) during a one-year window starting September 1, 2019, and for merged plans on an ongoing basis. The guidance also provides helpful relief from document failures identified and corrected as part of those determination letter applications, as discussed below.


A. Background
In June 2016, the IRS announced that it was eliminating the long-standing five-year filing cycle determination letter program for individually designed tax-qualified retirement plans (IRS Rev. Proc. 2016-37). At the time, the IRS said that it would continue to accept determination letter applications from individually designed plans only for the purposes of initial qualification, qualification at plan termination, and in other “specified circumstances” that the IRS may announce in subsequent guidance. In April 2018, the IRS asked the public to submit comments on specific types of individually designed plans for which the IRS should consider reopening the determination letter program (IRS Announcement 2018-24). After considering the comments it received from the regulated community, the IRS issued Revenue Procedure 2019-20. This latest Revenue Procedure represents the IRS’ first foray back into the determination letter program for individually designed plans in “specified circumstances,” as contemplated by Revenue Procedure 2016-37.

B. Limited Expansion Under Revenue Procedure 2019-20
Effective September 1, 2019, Revenue Procedure 2019-20 expands the determination letter program in two ways. First, sponsors of defined benefit plans that use a statutory hybrid formula (e.g., cash balance plans) will be eligible to apply for a new determination letter during a one-year period beginning September 1, 2019. Second, sponsors of “merged plans” (as defined below) will be eligible to apply for determination letters on an ongoing basis, but only during a limited period following the date of the corporate merger and plan merger.

  1. Statutory Hybrid Plans 
    Eligible Plans: Any plan that uses a statutory hybrid formula is eligible to apply for a new determination letter between September 1, 2019 and August 31, 2020. For this purpose, a statutory hybrid formula means a lump-sum-based formula, or any formula that has a similar effect to a lump sum-based formula. Common examples of statutory hybrid plan designs include cash balance plans, pension equity plans, and certain variable annuity plans. Under Revenue Procedure 2019-20, a plan that uses a statutory hybrid formula is eligible to apply for a determination letter even if the plan also includes a “traditional” formula (e.g., benefits based on final average pay and credited years of service), and even if the plan’s statutory hybrid formula was already in place when the plan received a prior determination letter. Sanctions Relief: The IRS will not impose any sanctions for plan document failures relating to implementation of the final hybrid plan regulations that are discovered by the IRS in reviewing a determination letter application submitted pursuant to Rev. Proc. 2019-20. If the IRS discovers any other plan document failures, then as long as the amendment that created the failure was adopted timely and in good faith with the intent of maintaining the plan’s qualified status (or the plan sponsor reasonably and in good faith determined that no amendment was required in connection with a change in qualification requirements), a reduced sanction equal to the applicable user fee under EPCRS will apply (e.g., the maximum user fee of $3,500 would apply if a large plan sponsor had self-reported the plan document failure by filing a VCP application). However, the IRS expressly states that the anti-cutback relief that expired before the 2017 plan year will not be extended for remedial amendments. 
  2. Merged Plans
    Eligible Plans: Revenue Procedure 2019-20 also permits sponsors of merged plans to apply for a determination letter, starting September 1, 2019. For this purpose, a “merged plan” means a plan resulting from the merger or consolidation of two or more formerly separate plans into a single plan, which must have occurred in connection with a corporate merger, acquisition, or similar business transaction among unrelated entities. To be eligible, a plan merger must be completed within the required transition period under Code §410(b)(6)(C) (i.e., no later than the end of the plan year after the plan year that includes the date of the corporate transaction), and the determination letter application must be submitted by the last day of the first plan year (of the merged plan) that begins after the effective date of the plan merger. For example, if a company acquires an unrelated entity in a corporate transaction as of July 1, 2019, and then merges the acquired company’s plan into its plan as of January 1, 2020, then (assuming the merged plan uses a calendar year plan year) the deadline for submitting a determination letter application for the merged plan would be December 31, 2021. However, if the plan merger had been effective as of December 31, 2019 instead of January 1, 2020, the deadline for the merged plan’s determination letter application would be December 31, 2020. Sanctions Relief: The IRS will not impose any sanctions for plan document failures that relate to a plan provision included to effectuate the plan merger. If the IRS discovers any other plan document failures in reviewing the merged plan’s determination letter application, then as long as the amendment that created the failure was adopted timely and in good faith with the intent of maintaining the plan’s qualified status (or the plan sponsor reasonably and in good faith determined that no amendment was required in connection with a change in qualification requirements), a reduced sanction equal to the applicable user fee under EPCRS will apply (e.g., the maximum user fee of $3,500 would apply if a large plan sponsor had self-reported the plan document failure by filing a VCP application). 
  3. Considerations for Plan Sponsors 
    The expansion of the determination letter program provides eligible plan sponsors valuable opportunities to have their plans reviewed by the IRS:
    • For sponsors of individually designed cash balance and other statutory hybrid plans, Revenue Procedure 2019-20 provides an important but time-limited opportunity to confirm whether their plan documents are fully compliant with the final cash balance regulations, including the IRS’ requirements for using a “market rate of return” for a plan’s interest crediting rate. The review will also consider any design changes or other programs (e.g., lump sum windows).
    • Sponsors of traditional defined benefit plans that may be considering converting to a cash balance or other hybrid formula should consider whether it may make sense to effectuate the conversion on or before August 31, 2020, in order to take advantage of this limited opportunity from the IRS.
    • Sponsors of plans that merge in connection with a corporate merger, acquisition, or similar transaction can seek a determination review on the merger. This review can be especially helpful in protecting merged plans from inadvertently failing to address any required benefits, rights, and features under the plans that are being merged. Note that this opportunity would apply to 2017 or 2018 corporate transactions where the plan merger occurred in 2018, as long as the filing is made by December 31, 2019 (for calendar year plans).
    • A merged plan that goes in for a determination letter can also have recent plan design changes reviewed as part of the application. This allows plan sponsors an opportunity to leverage off of M&A activity to periodically refresh a plan’s determination letter, or have recent plan design changes reviewed by the IRS. 

While these opportunities are very helpful, most qualified plans – such as 401(k) plans that have not been involved in a merger – will not be able to take advantage of them. These plan sponsors should consider obtaining a law firm opinion letter to confirm their plan’s tax-qualified status.

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