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After requiring disclosure regarding whether a plan or trust is "currently under examination," Form 5300 also requires disclosure regarding "any issue related to this plan or trust currently pending" before the DOL. It goes on to say that a filing under EPCRS doesn't trigger a positive answer. My client has recently filed under DFVC for late filings of Forms 5500. Does the DFVC filing require a positive answer and related disclosure? I'm surmising yes, since the Form specifically excepts EPCRS filings but says nothing about DFVC. Given that this client will be filing Form 5500 in conjunction with an EPCRS filing (because it adopted the mandatory rollover notice late), I'd rather not be giving any more indications of foot faults than required. (And, yes, I began working with this client after these errors occurred!)

Client was on volume submitter plan, used the volume submitter's EGTRRA good faith amendment, made own 401(a)(9) amend, made own LATE mandatory rollover amendment. Hasn't made any other amendments. VS filed timely and hasn't yet received letter. Assume that the plan will take advantage of Rev. Proc. 2007-44's Section 19 guidance regarding VS plan's entitlement to six year remedial amendment cycle even if it has amended out of VS status. 1. Putting aside my description of the mandatory rollover amendment as late, is it late since the plan has not yet filed its on-cycle D letter application? 2. If #1 is yes, then should client file VCP submission concurrently with a D letter application?

Okay, to make sure I've still got this straight: The plan can use 414(s) comp for purposes of contributions and ADP/ACP testing. If the plan fails its ADP/ACP test and ER elects to make target QNEC/QMAC, then such target contributions are tied to limits that involve 415 comp (even though the plan used 414(s) comp for the ADP/ACP testing). As always, the plan must use 415©(3) comp for HCE and TH purposes.

A client wants to use a definition of compensation that qualifies as a 414(s) safe harbor for purposes of contribution and testing. Specifically, they want to define compensation as wages, etc. but excluding reimbursements/expense allowances, fringe benefits, moving expenses, deferred compensation, and welfare benefits (mirroring 1/414(s)-1©(3)). From a factual perspective, they do not want to have to include noncash items (e.g., use of company car, gift certificates awards, etc.) in the amount from which employees are permitted to defer. Potential contributions to the plan include elective deferrals, matching contributions and employee after-tax contributions. Questions: (1) Can such a plan use a 414(s) safe harbor definition of comp for both testing AND contribution? That seems odd to me from a logical perspective in the sense that a comp def that satisfies 415©(3) satisfies 414(s), but here they're using a def that satisfies 414(s) but not 415©(3) . . . (2) If the answer to (1) is yes, mustn't the plan use a different definition of comp for other purposes in the plan - e.g, defining HCEs, Key EEs, etc.? And, in that event, doesn't the plan need a separate definition of comp for those purposes? (Noting then that def would need to comply with the 415 regs.) (3) Would these answers change if the plan permitted a discretionary profit-sharing contribution? Would that only come into play in years the employer opted to make such a contribution?

Figured out the answer to my own question (amazing how stepping away from your work can give you a fresh start). For the plan years in question, no employee received an allocation or accrued a benefit under the plan. Hence, we check box 3b and do not complete the rest of this schedule.

A client is filing late 5500s in DFVC program. During the years in question, the plan was in payout status - the corporation was still in existence but there were no employees. So do we list 0 employees on Schedule T? And does that mean that it passes by ratio percentage? (I keep thinking 0 divided by 0 is 0 which is decidedly less than 70%.) Are those answers likely to flag an audit? There were no contributions made during these years; all participants were fully vested and most had taken lump sum payments already. The plan was for a small physician's practice and it's just the two doctors left who have accounts. We're talking about whether they'd like to terminate the plan and roll their balances into IRAs. But before we can get to any of that, we've got to take care of these matters!