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We had a client with the same issue.... failed to file 11 years of 5500s for a 401(k)/PS but only had 8 years of information/data. Filed the plan under DFVCP, paid $4,000 per plan cap. We had discussions with the DOL because of the lack of data for the missing 3 years and were able to simply upload the incomplete 5500s (filing out primarily lines 1-4, marking a few of the boxes below that, with no schedules) with a letter of explanation, including the DFVCP case number and agent in charge, etc. DOL accepted it, never heard anything from the IRS. This was just one client's experience, it may or may not work for another.

Correct - only works in HCE-only plans or very large plans that can also pass ACP testing because of generous match and excellent NHCE participation. Need to make sure that VAT contributions are tracked separately and get converted before any investment earnings accrue or pick up any such earnings as taxable upon conversion. This can be done via in-plan conversation or withdrawal of the VAT account, just make sure you have provider that can accommodate and all is properly tracked and reported.

Also, people often miss that the after-tax money has to be deposited within 30 days after the end of the plan year to count for 415 limits.

I think @thepensionmavens issue is that they don't have a copy of the documentation for the DFVCP application, not the 5500 itself. The DOL will send a confirm to the email address you list as the contact when you apply for DFVCP. The subject line of the confirmation email is "DFVC Program Confirmation of Attempted Submission". I normally use my email as the contact email for the application for this reason. There is an agency tracking number in the email, but if you don't have that, you should still be able to call the DOL and ask. The tracking number will start with year and month of the application, followed by six digits. So if applied today, it would be 25-08-XXXXXX. There is no public database for DFVCP applications.

Yes. Excepted benefit status is relevant for HIPAA portability/ACA market reforms. It's not relevant for the ERISA rules, which require an SMM within 60 days of adoption of a material reduction in group health plan benefits. A material reduction in dental/vision (regardless of excepted benefit status) qualifies for this purpose as a group health plan. More details: https://www.newfront.com/blog/when-to-distribute-an-updated-wrap-spd https://www.newfront.com/blog/aca-and-hipaa-excepted-benefits Cite: https://www.govinfo.gov/app/details/CFR-2022-title29-vol9/CFR-2022-title29-vol9-sec2520-104b-3 (d) Special rule for group health plans. (1) General. Except as provided in paragraph (d)(2) of this section, the administrator of a group health plan, as defined in section 733(a)(1) of the Act, shall furnish to each participant covered under the plan a summary, written in a manner calculated to be understood by the average plan participant, of any modification to the plan or change in the information required to be included in the summary plan description, within the meaning of paragraph (a) of this section, that is a material reduction in covered services or benefits not later than 60 days after the date of adoption of the modification or change. Slide summary: Newfront Office Hours Webinar: ERISA for Employers

My understanding is there is no statute of limitations for non-filers. Also, you will need to navigate the IRS and DOL rules separately since the IRS commonly defers to plans who use the DOL DFVCP program, the IRS is not required to do so and can impose its own penalties and required corrections. DO NOT ATTEMPT TO CORRECT THIS WITHOUT INVOLVING LEGAL COUNSEL WITH EXPERIENCE IN WORKING WITH BOTH THE DOL AND THE IRS. Since the data are not available, any correction will require negotiating with each agency, and this is more an art than it is a step-by-step procedure. A starting point will be confirming the years for which 5500s were required. This itself can be tricky for 403(b) plans when looking going back at many years past. May you be well-compensated for the journey you are about to undertake. Good luck!

I disagree back. They complete the 1 YOS on the last second of 1/1/2023.

In a Board Resolution I would suggest you have as one of the "WHEREAS Clauses" something like whereas the Trustee named ???? has died the Plan Sponsor has determined that ???? be named to replace ?????. I am NOT providing legal advice, just a suggestion of what you might look for to address the situation, preferably by a competent ERISA attorney. I think anything else might be overkill.

that applies for sole-props as well and many (if not majority) of CPAs think it is OK to deposits VATs by September-ish.

On a contrary, I would never say that this person enters on 10/1. I believe this question was discussed multiple times over many years, and people always had different opinions. Some from this board even changed their opinions over time. I am not aware of any official cites covering this question. The only article I found support entrance on 1/1/2025 in this case - https://williamskeepers.com/retirement-plan-deficiencies-a-look-at-the-most-common-mistakes-part-2/ And this is what Google's AI said: The entry date, coinciding with and next following one year from your hire date of 1/2/2021, is 1/2/2022. Explanation: The question specifies that the entry date is one year after the hire date. A year from 1/2/2021 is 1/2/2022. The phrase "coinciding with and next following" means the entry date is either exactly one year from the hire date or the first date after that which is designated as an entry date. Since you were hired on the 2nd of January, one year from that date is also the 2nd of January. Therefore, the entry date is 1/2/2022.

I'd just google it - there's been a lot of press about it. Biggest thing (IMHO) to watch out for is that it is subject to ACP testing, so often doesn't work in small plans, since generally utilized only by HCE's...

Technically, the form should be amended. Did the change in the count have an impact on the filing (like triggering the audit requirement)? If yes, we would amend the filing. If no, we likely would carry the prior year count forward and use the correct year end numbers (assuming that the client doesn't repeat sending inaccurate information). Since the issue involved a termination date, don't overlook the individual when filing the Form 8955-SSA for the current. The SSA form is very lenient about who and when someone is reported.

When in doubt, there is always the risk/reward factor to consider. Does this amount, if counted as a related rollover, make (or is it likely to make) the difference between top heavy status or non-top heavy? If it does make it top heavy, how much extra employer contribution will be required vs. non-top heavy? Is the plan a large plan subject to audit? If so, what does the auditor think? FWIW (nothing) my inclination is to count it as a related rollover.

I agree that the phrase in boldface above as presented by @Peter Gulia might lead to the conclusion that the rollover described in the original post IS as "related rollover". However, the original 416 regs date to 1984, with some later amendments; I observe that the QDRO universe has evolved significantly since then. Is it possible to conclude that the 416 statute and reg did not imagine the situation at hand? I say Yes. The spouse receiving the QDRO award had the choice (OK, I'm assuming) to take a rollover to his/her IRA or a transfer/rollover to his/her 401k account. IMHO, the TH treatment should NOT differ for these two choices. BTW, I checked the Gray Book; nothing on point. Maybe some of our attorney contributors could check prior IRS/ABA Q&As?

Remember how often BenefitsLink neighbors incant RTFD. Consider all documents governing the plan and its trusts. What does each document say about what ends a trusteeship? What does each document say about how a named fiduciary appoints a successor trustee, or an additional trustee? Was all that done? Consider all agreements and other documents with each investment provider. And with each service provider. What does each document say about an obligation to give a party, and perhaps third persons, notice of a change in a trusteeship? Was all that done? If careful readings don’t resolve all questions, consider ERISA (if ERISA governs the plan). If there is a question unanswered by the documents and the statute’s text, consider the Federal common law of ERISA. If the Federal common law of ERISA applies or is relevant to help interpret the statute, consider the American Law Institute’s Restatement of Trusts as an expression of common law. Evaluate carefully whether the recent appointment was of a successor trustee, or of an additional trustee. Consider whether the successor or additional trustee should request that the deceased trustee's personal representative submit an accounting for whatever the decedent did since his most recent accounting. Consider whether the successor or additional trustee should request that the deceased trustee’s personal representative deliver all trust records the personal representative possesses or could possess. Consider whether the successor or additional trustee should request that the deceased trustee’s personal representative confirm in writing that the representation has not done anything to administer the trust. Even if all of what was done was correct under the plan’s and its trust’s governing documents and applicable law, consider redocumenting the changes in the trusteeships. Why? An investment or service provider’s employee might lack discretion to allow anything beyond what a checklist tells the employee to do. This is not advice to anyone.

I suppose a given funding institution might require or ask for something removing the deceased from their records, but absent that, it doesn't seem necessary to me. I'll be interested to see what some of the legal experts say. I'm not confident in my off-the-cuff opinion being correct...