Page 3Form 5309 (Rev. 5-2010)
General Information
Section references are to the
Internal Revenue Code unless
otherwise noted.
Use this form to apply for a
determination letter for an employee
stock ownership plan (ESOP) that
meets the requirements of section
4975(e)(7). Attach Form 5309 to
Form 5300, Application for
Determination for Employee Benefit
Plan.
The plan you establish must be
designed to invest primarily in
employer securities. For a definition
of employer securities and how it
applies to your plan, see section
409(I) or section 4975(e)(8). Also see
Regulations section 54.4975-11 for
the formal plan requirements of an
ESOP.
General Instructions
A Change To Note
The form and the instructions have
undergone revisions in the format
and the information required.
The questions with regard to tax
credit ESOPs have been deleted. If
your plan involves such a plan,
please state so in the cover letter
and refer to Regulations section
1.46-8(d) for the formal requirements
of a tax credit ESOP. The question
relating to type of plan has been
deleted from the form.
Who May File
1. Any corporate employer who
has established an ESOP intended
to meet the requirements under
section 4975(e)(7).
2. Any corporate employer who
amends an ESOP under section
4975(e)(7).
An S corporation-sponsored
ESOP must provide that no
prohibited allocation of employer
stock may be made to a disqualified
person for a nonallocation year. This
applies to all plan years beginning
on or after January 1, 2005. This
applies to plan years ending after
March 14, 2001, if:
1. The ESOP was established after
March 14, 2001, or
2. The ESOP was established on
or before March 14, 2001, if the
employer maintaining the ESOP had
not made an S-corporation election
in effect on such date.
How To Complete the Application
● If a number is requested, a
number must be entered.
● If an item provides a box to
check, written responses are not
acceptable.
● The application has formatted
fields that will limit the number of
characters entered per field.
● All data input will need to be
entered in Courier 10 point font.
● Alpha characters should be
entered in all capital letters.
● Enter spaces between any words.
Spaces do not count as characters.
What To File
To receive a determination on
whether a plan, initially or as a result
of a plan amendment, meets the
requirements of section 4975(e)(7),
submit Form 5309, Form 5300, and
a copy of all documents and
statements required by those forms.
Attach the completed Form 5309 to
Form 5300.
Signature
Form 5309 must be signed by the
principal officer authorized to sign.
Note. Stamped signatures are not
acceptable; see Rev. Proc. 2010-4
which is on page 122 of Internal
Revenue Bulletin 2010-1 at
www.irs.gov/pub/irs-irbs
/irb10-01.pdf.
Paperwork Reduction Act Notice.
We ask for the information on this
form to determine whether you meet
the legal requirements for the plan
approval you request. Your filing of
this information is only required if
you wish the IRS to determine if
your plan qualifies under section
4975(e)(7).
You are not required to provide
the information requested on a form
that is subject to the Paperwork
Reduction Act unless the form
displays a valid OMB control
number. Books or records relating to
a form or its instructions must be
retained as long as their contents
may become material in the
administration of any Internal
Revenue law. Generally, tax returns
and return information are
confidential, as required by section
6103.
The time needed to complete and
file this form will vary depending on
individual circumstances. The
estimated average time is:
Recordkeeping 6 hr., 13 min.
Learning about the
law or the form 2 hr., 10 min.
Preparing and
sending the form
to the IRS 2 hr., 22 min.
If you have comments concerning
the accuracy of these time estimates
or suggestions for making this form
simpler, we would be happy to hear
from you. You can write to the
Internal Revenue Service, Tax
Products Coordinating Committee,
SE:W:CAR:MP:T:T:SP, 1111
Constitution Ave. NW, IR-6526,
Washington, DC 20224.