Plan Amendments that Do Not Affect Opinion Letter Reliance

Under Revenue Procedure 2023-37, an adopting employer may continue to rely on an opinion letter for a pre-approved plan if the following types of amendments are made: 

1. Amendments to the plan to (1) add or change a provision (including choosing among options in the plan) or (2) specify or change the effective date of a provision, provided the adopting employer is permitted to make the modification or amendment under the terms of the Pre-approved Plan as well as under the qualification requirements or Internal Revenue Code (IRC) Section 403(b) requirements, as applicable, and the provision is identical to one in the pre-approved plan, except for the effective date.

2. Sample or model amendments (or an amendment that is substantially similar to a sample or model amendment in all material respects) that the adopting employer adopts, that are published by the IRS, and that specifically provide that their adoption will not cause a plan to fail to be identical to the pre-approved plan.

3. Amendments that adjust the limitations under IRC Sections 415, 402(g), 401(a)(17), and 414(q)(1)(B) to reflect annual cost-of-living increases, or add automatic cost-ofliving adjustment provisions to the plan. 

4. Plan language completed by the adopting employer if such overriding language is necessary to satisfy IRC Section 415 (or 416, in the case of a qualified pre-approved plan) because of the required aggregation of multiple plans under that section. 

5. Interim amendments or discretionary amendments that are adopted as a result of a change in qualification requirements or IRC Section 403(b) requirements, as applicable, for the form of the plan. 

6. Amendments that reflect a change of a provider’s name, in which case the provider must notify the IRS, in writing, of the change in name and certify that it still satisfies the conditions to be a provider.

7. Amendments to the administrative provisions in the plan (such as provisions relating to investments, plan claims procedures, and adopting employer’s contact information), provided the amended provisions are not in conflict with any other provision of the plan, still meet the requirements of this revenue procedure, and do not cause the plan to fail to satisfy the qualification requirements or IRC Section 403(b) requirements, as applicable. 

8. Amendments with respect to which a closing agreement under the Audit Closing Agreement Program or a compliance statement under the Voluntary Correction Program of EPCRS has been issued (see Section 6.05(2)(b) of Rev. Proc. 2021-30 regarding the ability of the adopting employer to rely on the opinion letter).
 

Source: Revenue Procedure 2023-37