The IRS in Revenue Procedure (Rev. Proc.) 2023-37 has issued fresh guidance on qualified pre-approved plans and 403(b) pre-approved plans which combines, conforms, clarifies, and updates rules for those plans set forth in prior revenue procedures. 
Rules for Pre-Approved Plans
Rev. Proc. 2023-37 sets rules for pre-approved plans, which fall into three broad categories.
Remedial amendment periods, the remedial amendment cycle system, and plan amendment deadlines. Rev. Proc. 2023-37 sets forth the rules regarding remedial amendment periods, the remedial amendment cycle system, and plan amendment deadlines for qualified pre-approved plans and for 403(b) pre-approved plans.
Those rules had been set forth in Rev. Proc. 2016-37, as modified by Rev. Proc. 2017-41, and Rev. Proc. 2020-40 regarding qualified pre-approved plans, and in Rev. Proc. 2019-39, as modified by Notice 2020-35, Rev. Proc. 2020-40, and Rev. Proc. 2021-37 regarding 403(b) pre-approved plans).
The rules regarding remedial amendment periods, the remedial amendment cycle system, and plan amendment deadlines became effective on Nov. 21, 2023.
Provider application for an opinion letter. Rev. Proc. 2023-37 sets forth the procedures for a provider to apply for an opinion letter confirming that the form of the provider’s plan satisfies the qualification requirements or 403(b) requirements (procedures that were previously set forth in Rev. Proc. 2017-41, as modified by Rev. Proc. 2018-21 regarding qualified pre-approved plans, and in Rev. Proc. 2021-37 regarding 403(b) preapproved plans.
The rules regarding the application procedures for an opinion letter are effective regarding:
- A Cycle 4 (or later) defined contribution qualified pre-approved plan (Cycle 4 for defined contribution qualified pre-approved plans began on Feb. 1, 2023 (see section 1.02 for the start of the Submission Period for Cycle 4));
- A Cycle 4 (or later) defined benefit qualified pre-approved plan (Cycle 4 for defined benefit qualified pre-approved plans begins on April 1, 2025); and
- A Cycle 3 (or later) 403(b) pre-approved plan (the Cycle 2 submission period for 403(b) pre-approved plans ended on May 1, 2023, and the IRS is currently reviewing provider applications for opinion letters submitted by these preapproved plans).
Adopting employer application for a determination letter. Rev. Proc. 2023-37 sets forth the procedures for an adopting employer of a qualified preapproved plan or a 403(b) pre-approved plan to apply for a determination letter regarding the adopting employer’s plan (procedures that were previously set forth in Rev. Proc. 2016-37 and Rev. Proc. 2017-41 (for an adopting employer of a qualified pre-approved plan), and in Rev. Proc. 2021-37 (for an adopting employer of a 403(b) pre-approved plan)).
The rules regarding the application procedures for a determination letter apply to:
- an application for a determination letter submitted by an adopting employer regarding a Cycle 4 (or later) DC qualified preapproved plan;
- an application for a determination letter submitted by an adopting employer regarding a Cycle 4 (or later) DB qualified pre-approved plan; and
- an application for a determination letter submitted by an adopting employer regarding a Cycle 2 (or later) 403(b) pre-approved plan.
Submission Period for Cycle 4 DC Qualified Pre-Approved Plans
Rev. Proc. 2023-37 says that the submission period for a provider of a DC qualified pre-approved plan to submit an application for a Cycle 4 opinion letter begins on Feb. 1, 2024, and ends on Jan. 31, 2025. A provider may apply for a Cycle 4 opinion letter at other times.
Plan Amendment Deadlines
Under Rev. Proc. 2023-37, generally the deadline for the timely adoption of an amendment for a pre-approved plan is determined in the following ways.
Pre-approved plans that are not governmental plans. For such a plan, a provider (or the adopting employer, if applicable) adopts an interim amendment on time if the plan amendment is adopted by the last day of the second calendar year that begins after the issuance of the required amendments list described in Rev. Proc. 2022-40 in which the change in qualification requirements or 403(b) requirements appears. Regarding a discretionary amendment, an adopting employer adopts the amendment timely if the adopting employer adopts the plan amendment by the end of the plan year in which the plan amendment is operationally put into effect.
Pre-approved plans that are governmental plans. Regarding interim amendments, a provider will have adopted the amendment on time if the plan amendment is adopted by the later of: (1) the last day of the second calendar year that begins after the issuance of the required amendments list in which the change in qualification requirements or 403(b) requirements appears; or (2) to the extent any action is required to be taken by the adopting employer in order to adopt the interim amendment, 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins on or after the date the plan amendment becomes effective.
Regarding discretionary amendments, an adopting employer adopts the plan amendment in a timely manner if the adopting employer adopts the plan amendment by the later of: (1) the end of the plan year in which the plan amendment is operationally put into effect; or (2) to the extent any action is required to be taken by the adopting employer in order to adopt the discretionary amendment, 90 days after the close of the second regular legislative session of the legislative body with authority to amend the plan that begins on or after the date the amendment becomes effective.
Publication
Rev. Proc. 2023-37 will appear in Internal Revenue Bulletin 2023-51, which will be published on Dec. 18, 2023.
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