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Operational failure for late deposit of deferrals?


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Plan sponsor failed to timely remit deferrals following multiple payrolls.  We are proceeding with a VFCP filing with the DOL.   Question is whether there is also an "operational failure" under EPCRS.  Plan document only requires deferrals to be deposited into the plan "as soon as administratively feasible."  I have not found any basis to consider this an operational failure since the plan document does not require the deferrals to be deposited by a certain date.  We are trying to avoid an EPCRS VCP filing (we are outside the self-correction window for significant operational failures).  Any thoughts (or real world experience) would be appreciated!

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To the extent there is a tax-qualification failure to correct, consider that SECURE 2022 § 305 undoes the Internal Revenue Service’s time limit on which failures are eligible (if otherwise eligible) for self-correction.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania



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