IRS Publishes Sample 403(b) Prototype Document Language

The Internal Revenue Service has published some sample prototype 403(b) language – and wants to know what you think.
The draft information package contains samples of plan provisions that satisfy certain specific requirements of the Internal Revenue Code applicable to section 403(b) plans, and as provided in Announcement 2009-34, “interested persons’ are invited to submit comments to the IRS on the sample plan provisions.
In publishing the language, the IRS notes that the sample language is designed for use in a new Employee Plans Section 403(b) Prototype Plan Program. “The Section 403(b) Prototype Program will operate generally in the same manner as the current Master and Prototype Program for plans qualified under section 401(a) of the Internal Revenue Code,’ according to the announcement. The IRS notes that a sponsoring organization (generally a service provider) using the prototype document will submit a section 403(b) plan document to the IRS for review, and if the plan satisfies the requirements of section 403(b), the IRS will issue a favorable Opinion Letter to the sponsor with respect to the plan document. The sponsor may then offer the approved plan document for adoption by employers.
The IRS notes that the draft sample language is based on language previously developed for other IRS prototype plan programs (see Listing of Required Modifications for Defined Contribution Plans, Cash or Deferred Arrangements, Traditional IRAs and Roth IRAs) as well as the model section 403(b) plan language published in Revenue Procedure 2007-71.
The IRS notes that this information package contains samples of plan provisions that have been found to satisfy certain requirements of section 403(b) of the Internal Revenue Code, the final regulations issued July 26, 2007, Revenue Procedure 2007-71, and Revenue Procedure _____ [section 403(b) prototype plan revenue procedure]. “This language may or may not be acceptable in different plans depending on the context in which used,’ the IRS noted. “We have prepared this package to assist prototype sponsors who are drafting section 403(b) prototype plans, and to enable us to process and approve section 403(b) prototype plans more quickly,’ the agency explained.
Part I of the package contains sample plan provisions appropriate for section 403(b) prototype plans that are limited to elective deferrals. Part II contains additional sample provisions for section 403(b) prototype plans that accept contributions other than elective deferrals.
The IRS notes that certain section 403(b) plans may be covered by Title I of the Employee Retirement Income Security Act of 1974 (ERISA), but that since the IRS does not have jurisdiction over Title I, this package does not contain sample Title I plan provisions. However, the IRS also notes that prototype sponsors “may find that certain plan provisions developed to enable section 401(a) master and prototype plans comply with Internal Revenue Code qualification requirements that have parallel Title I requirements may be helpful in drafting plan provisions intended to comply with Title I (see, e.g., Listing of Required Modifications for Defined Contribution Plans).
However, even if such provisions are used, IRS opinion letters do not provide reliance for section 403(b) prototype plans with respect to Title I requirements, the Service cautioned.
The 403(b) Plan Draft Listing of Required Modifications and Information Package (LRM) is online at