Instructions for Form 6406 (6/2004)

Purpose of Form

File Form 6406 to apply for a determination for a minor amendment of a plan that has already received a favorable determination letter. However, file Form 5300 instead of Form 6406 if the plan is filing to comply with GUST (that is, the Small Business Job Protection Act of 1996 and other laws).

A minor amendment does not include an amendment that involves a significant change to plan benefits or coverage or that may affect other portions of the plan so as to cause disqualification. For example, an amendment to add an ESOP or cash or deferred arrangement to a plan is not a minor amendment.

Use Form 5310, Application for Determination for Terminating Plan, instead of Form 6406 to ask for approval of an amendment that results in a plan termination.

File Form 5310-A, Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan Assets or Liabilities; Notice of Qualified Separate Lines of Business, to report a:

Merger,
Consolidation, or
Transfer of plan assets or liabilities to another plan.

Use Form 5300, Application for Determination for Employee Benefit Plan or Form 5307, Application for Determination for Adopters of Master or Prototype or Volume Submitter Plans, instead of Form 6406 to ask for approval of an amendment for:

A plan restatement. A plan is required to be restated if four or more amendments have been made to the plan. For restatement purposes, an amendment that makes only nonsubstantive plan changes is not counted as a plan amendment.
An amendment to comply with GUST as provided in section 3.05 of Rev. Proc. 2000-27, 2000-26, I.R.B. 1272.

Type of Plan

A Defined Contribution Plan (DCP) is a plan that provides an individual account for each participant and for benefits based only:
1. On the amount contributed to the participant's account, and
2. Any income, expenses, gains and losses, and any forfeitures of accounts of other participants that may be allocated to the participant's account.
A Defined Benefit Plan (DBP) is any plan that is not a DCP.

A qualified plan must satisfy section 401(a) including, but not limited to, participation, vesting, nondiscriminatory contributions or benefits, distributions, and contribution and benefit limitations.

Who May File

In general, file Form 6406 only if the plan has an outstanding favorable determination letter covering GUST.

This form may be filed by any:

Employer, including a sole proprietor, partnership, plan sponsor or plan administrator to request a determination letter on the qualification of a minor amendment to their plan.
Plan sponsor or plan administrator to request a determination letter as to the qualification of an amendment of a plan that involves:
1. A controlled group of corporations (section 414(b)), or
2. Trades or businesses under common control (section 414(c)), or
3. An affiliated service group (section 414(m)).

This form may be filed to obtain a determination letter on:

The qualification of minor amendments of individually designed plans (including volume submitter plans) or
An M&P plan that is amended only through the choice of elections offered under the approved adoption agreement.

Who May Not File

A minor amendment does not include an amendment that involves a significant change to plan benefits or coverage or that may affect other portions of the plan so as to cause disqualification.

Example:

An amendment to add an ESOP or cash or deferred arrangement to a plan is not a minor amendment.

This form may not be filed by anyone asking for approval of an amendment, if:

The amendment results in a:
1. Plan termination,
2. Partial termination,
3. Merger,
4. Consolidation, or
5. A transfer of plan assets or liabilities to another plan.
The plan is restated. A plan is required to be restated if four or more amendments have been made to the plan. For restatement purposes, an amendment making only nonsubstantive plan changes is not counted as a plan amendment.
You are requesting a ruling regarding leased employees. File Form 5300 instead of Form 6406.
You are amending the plan to comply with GUST, as provided in Rev. Proc. 2000-27, Section 3.05.
Use the appropriate Form 5300 series form, if Form 6406 may not be used.

Where To File

File Form 6406 at the address indicated below:

Internal Revenue Service Center

P.O. Box 192

Covington, KY 41012–0192

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

Internal Revenue Service Center

201 West Rivercenter Blvd.

Attn: Extracting Stop 312

Covington, KY 41011.

Private Delivery Services. In addition to the United States mail, you can use certain private delivery services designated by the IRS to meet the “timely mailing as timely filing/paying” rule for tax returns and payments. The most recent list of designated private delivery services was published by the IRS in September 2002 and includes only the following:

Airborne Express (Airborne): Overnight Air Express Service, Next Afternoon Service, Second Day Service;
DHL Worldwide Express (DHL): DHL “Same Day” Service, DHL USA Overnight;
Federal Express (FedEx): FedEx Priority Overnight, Fed Ex Standard Overnight, Fed Ex 2Day, Fed Ex International Priority, and Fed Ex International First.
United Parcel Service (UPS): UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.

The private delivery service can tell you how to get written proof of the mailing date.

How to Complete the Application

Applications are screened for completeness. The application must be signed by the employer, plan administrator or authorized representative. Incomplete applications may be returned to the applicant. For this reason, it is important that an appropriate response be entered for each line item (unless instructed otherwise). In completing the application, pay careful attention to the following:

N/A (not applicable) is accepted as a response only if an N/A block is provided.
If a number is requested, a number must be entered.
If an item provides a choice of boxes to check, check only one box unless instructed otherwise.
If an item provides a box to check, written responses are not acceptable.
Governmental plans and nonelecting church plans do not have to complete line 9a.
The IRS may, at its discretion, require additional information or the appropriate replacement Form 5300 series application and applicable user fee any time it is deemed necessary.

Rev. Proc. 2004-6 publishes the guidance under which the determination letter program is administered. It is updated annually and can be found in the Internal Revenue Bulletin (I.R.B.) Example. Rev. Proc. 2004-6, 2004-1 I.R.B. 197 superseded Rev. Proc. 2003-6.

What To File

All applications must contain an original signature and must be accompanied by the following applicable items:

The appropriate user fee, if applicable, and Form 8717, User Fee for Employee Plan Determination Letter Request. Please submit a separate check for each application. Make checks payable to the “United States Treasury.”
A copy of the plan's latest determination letter including any addendum.
A copy of the new amendments or adoption agreement.
If the plan is a master or prototype or volume submitter plan, include a copy of the opinion or advisory letter.

Note.

If a new adoption agreement is submitted, include a statement specifying which section has changed.
A statement as to how the amendments or changes in the adoption agreement elections affect or change the plan or any other plan maintained by the employer.

Specific Plans — Additional Requirements

(See Procedural Requirements Checklist.)

For plans of controlled groups of corporations, trades or businesses under common control, and affiliated service groups submit the statement specified in the instructions for lines 6a and 6b.
For a governmental or nonelecting church plan, line 9a does not have to be completed.

General Instructions