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Missed the 120 day window...


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You can file a late top hat notice under DFVC and pay the fee (I think it's $750, but don't hold me to it). Filing one 5500 and then the top hat notice doesn't seem to accomplish anything because the notice is still late.

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The failure to file a top hat notice loses the exemption for many things besides the Forrm 5500, so correcting the faliure should get all the attention. Or were you asking about the requirement under the DFVC to file an abbreviated Form 5500 for the missed years?

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I did use the DFVC once for a plan that never filed the top-hat, but we went back for 3 or 4 years on that one. This one, the 5500 is not late. Everything I have read until all of your posts is that the top-hat filing was in lieu of 5500's - no top-hat = 5500 filing requirements. So I'm surprised at these responses. Has anyone ever seen a nice long article that describes what to do in these situations?

Austin Powers, CPA, QPA, ERPA

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A literal reading of DFVC might suggest that you can't make use of it for top hats until at least one 5500 is actually late. I don't think you have to read it that way, but if you disagree then why not wait until August 1 before making the DFVC submission?

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I suppose you could do that, but then you expose the employer to penalties for a future late filing, as well as all of the other reporting and disclosure requirements of Part 1 of Title I of ERISA and the penalties for failure to comply with those requirements.

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This looks like it addresses your situation.

Q16: May an administrator of an apprenticeship and training plan, as described in 29 CFR § 2520.104-22, or an administrator of a top hat plan, as described in 29 CFR § 2520.104-23, participate in the DFVCP?

Yes. Administrators of apprenticeship and training plans and administrators of pension plans for a select group of management or highly compensated employees (top hat plans), may file the applicable notice and statement described in regulation §§ 2520.104-22 and 2520.104-23, respectively, under the DFVCP in lieu of filing any past due annual reports. By properly filing these statements as described in regulation §§ 2520.104-22 and 2520.104-23 and meeting the other applicable DFVCP requirements, administrators will be considered as having elected compliance with the exemption and/or alternative method of compliance prescribed in §§ 2520.104-22, or 2520.104-23, as appropriate, for all subsequent plan years.

http://www.dol.gov/ebsa/FAQs/faq_DFVC.html

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