Form 5309 (Rev. 1-2012)
The IRS has created a page on
IRS.gov for information about
Form 5309 and its instructions, at
about any recent developments
affecting Form 5309 will be posted
on that page.
Section references are to the Internal
Revenue Code unless otherwise
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
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
More information. For more
information about the latest
developments on Form 5309 and its
instructions, go to www.irs.gov/
A Change To Note
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
2. Any corporate employer who
amends an ESOP under section
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
• 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 5309 must be signed by the
principal officer authorized to sign.
Note. Stamped signatures are not
acceptable; see Rev. Proc. 2012-4,
2012-1 I.R.B. 125, at www.irs.gov/
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
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.
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,
Constitution Ave. NW, IR-6526,
Washington, DC 20224.