In Employee Plans News (March 23, 2011), the Internal Revenue Service (the “IRS”) notes that on February 1, 2011, the IRS began accepting applications for opinion or advisory letters for pre-approved defined contribution (DC) plans for the second 6-year remedial amendment cycle. However, for the IRS to consider an application for the current cycle, the sponsor/practitioner of the pre-approved DC plan must verify compliance with the first cycle in one of the following ways:
1. stating that this is the first time for which an opinion or advisory letter has ever been requested for the plan;
2. attaching the plan’s most recent opinion or advisory letter based on the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”) and the 2004 Cumulative List; or
3. including a satisfactory explanation of why an opinion or advisory letter for the plan was not requested during the first cycle and how the EGTRRA and 2004 Cumulative List qualification requirements were timely satisfied by employers who adopted the plan.
For example, if an M&P sponsor received an opinion letter for GUST, but did not secure a letter for EGTRRA and the 2004 Cumulative List, the IRS will not issue a letter to the plan in the current cycle, unless the sponsor satisfies the third item above. The IRS further says that, if a pre-approved DC plan sponsor/practitioner cannot satisfy one of the three conditions, he or she must correct this qualification failure under the IRS’s Voluntary Correction Program before applying for an opinion or advisory letter in the current cycle.