401(k) Resource Guide - Plan Participants - Interested Parties

An employer is required to give notice to interested parties that it is applying to the Internal Revenue Service Office of Employee Plans (EP) Determinations for a determination of the plan’s qualified status. Notice must be given not less than 10 days or more than 24 days before the day that the application is submitted.

The notice must provide:

• A brief description identifying the class or classes of interested parties to whom the notice is addressed;
• The name of the plan, the plan identification number and the name of the plan administrator;
• The name and the taxpayer identification number of the applicant for a determination;
• That the application is being made to EP Determinations, the address to which the application is being sent and whether the application relates to an initial qualification, plan amendment, plan termination or partial termination;
• A description of the class of employees eligible to participate under the plan;
• Whether or not the Service has issued a previous determination as to the qualified status of the plan;
• A statement that any person to whom the notice is addressed is entitled to submit, or request the Department of Labor (DOL) to submit, to EP Determinations a comment on whether the plan meets the qualification requirements of Internal Revenue Code section 401 or 403(a); that two or more persons may join in a single comment or request; and if the Department of Labor declines a request to submit a comment on their behalf, they may make the comment directly to EP Determinations;
• The specific dates that the comments or request must be received;
• The number of interested parties needed in order for the Department of Labor to comment; and
• Except to the extent that additional information (described below) required to be made available is provided with the notice, a description of a reasonable procedure that the interested party can follow to obtain the additional information.

The following additional information is required to be available to interested parties:

• An updated copy of the plan document and the related trust agreement (if any); and
• A copy of the application for determination.

If there are fewer than 26 participants described in the application, instead of providing the additional information, the employer may provide interested parties who are not participants a document that contains:

• A description of the plan’s requirements with respect to eligibility for participation and benefits and the benefit formula;
• A description of the plan’s vesting provisions;
• A description of the circumstances that may result in ineligibility, or loss or denial of benefits;
• A description of the source of financing for the plan and the identity of any organization through which benefits are provided;
• A description of any optional benefits that have been reduced or eliminated by plan amendment; and
• Any coverage schedule or other demonstration submitted with the application to show that the plan meets the nondiscrimination and coverage requirements of Internal Revenue Code sections 401(a)(4) and 410(b).

However, once an interested party or designated representative receives a notice of final determination, the employer must, upon request, make available the additional information described above, regardless of the number of participants.

Interested parties generally include all:

• Present employees of the employer who are eligible to participate in the plan, and
• Other present employees of the employer whose principal place of employment is the same as that of the employees eligible to participate in the plan.

In cases involving plan terminations, interested parties also include:

• All present employees of the employer with accrued benefits under the plan,
• All former employees with vested benefits under the plan, and
• All beneficiaries of deceased former employees currently receiving benefits under the plan.

Interested parties may submit their comments directly to EP Determinations or request that the Department of Labor submit comments on their behalf.  If an interested party or group of interested parties submits their comments to the DOL, the interested parties may request the DOL to comment on the application to the IRS. The DOL then may forward the interested party comments to EP with comments of its own, if appropriate.

Interested party comments are associated with determination applications as soon as administratively possible and are considered by EP in the determination as to the qualified status of the plan. Interested party comments are not entitled to confidentiality.  The Code of Federal Regulations (CFR) specifically provides that all interested party comments will be made available to the employer.

In general, the office of EP Determinations must receive interested party comments by the 45th day after the day on which EP receives the application for determination. However, if an interested party requests that DOL submit a comment to EP, and DOL declines to do so, the interested party may still submit a comment directly to EP, by the later of the 45th day after the day EP received the application or the 15th day after the day on which notification was given by the DOL that it declined to submit a comment. In no event may the comment be received later than the 60th day after the day EP received the application.

Part II of Rev. Proc. 2006-6 provides additional information on the notice requirements and required content of comments submitted by interested parties.

Interested party comments should be submitted to the DOL at the following address:

Deputy Assistant Secretary
Employee Benefits Security Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Attention: 3001 Comment Request

Interested party comments are to be addressed to IRS (EP Determinations) at the following address:

Internal Revenue Service
P.O. Box 192
Covington, KY 41012-0192

Requests shipped by express mail or a delivery service should be sent to:

Internal Revenue Service
201 West Rivercenter Blvd.
Attn: Extracting Stop 312
Covington, KY 41011