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calexbraska

Top Hat Filing for Subsequent Plans

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We did a top hat filing when we established our first top hat plan.  The regulations state, "Only one statement need be filed for each employer maintaining one or more of the plans described in paragraph (d) of this section."  Based on that language, it appears we do not have to do any additional top hat filings when we establish new top hat plans.  Normally we do anyway as best practice, but in this case we didn't and we've already missed the 120 day window to file.  Does it make sense to do a late top hat filing?  Would that just raise a red flag?  Or is it better to just rely on the language from the regulations and take the position that no top hat filings are required for the later-adopted plans?

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I don't remember the context but I think the DOL made one or more statements in the last 10 years or so that contradict that plain wording of the regulation, and those statements influenced many people to start filing a top hat statement for each new plan.  Nonetheless the regulation  has not been changed and it says what it says, so I wouldn't do anything.    

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I think you're right about the DOL statements, which I why I normally file for subsequent plans even though I don't think the regulations require it.  However, in this case, I think doing a late filing will cause more problems than taking the position we don't need to file for this new plan.

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When the top hat regs state: Only one statement need be filed for each employer maintaining one or more of the plans

why do more?

Of course, if you do electronic filing, the instructions imply all plans need to be filed (whether on the initial filing or subsequent), then number of plans needs to be stated, and the number of employees per plan needs to be included (though the plan name is optional).  The same electronic filing that the proposed regulations say the required content hasn't changed.  Riiiight.

https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/reporting-and-filing/e-file/tophat-plan-filing-instructions

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