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I have a client who has just closed a U.S. DOL investigation for (very) late deposit of prevailing wage contributions. They have now paid in all of the unpaid contributions and paid and allocated estimated interest based on a method approved by the DOL investigator, paid corrective distributions to former employees and they have received a closing letter. I expected that these late contributions would also be an operational defect that would require a VCP filing, and my client is prepared to do this. My biggest concern had been whether the (DOL-approved) method of allocating interest would be acceptable to the IRS. But, I am now wondering if there is in fact any operational defect, because I cannot find any plan provision that specifies when these contributions have to be made. The plan has a schedule to the Adoption Agreement that lists the prevailing wage fringe benefit portion to be paid for each covered hour. The plan provision for Time of Payment of Employer's Contribution states: "Unless otherwise provided by contract or law, the Employer may make its contribution to the Plan for a particular Plan Year at such time as the Employer, in its sole discretion, determines." I don't think the "unless otherwise provided..." language incorporates the statute or contractual language by reference. There is also plenty of typical plan language about when annual addition are credited, and when contributions must be made to be deductible for a plan year, or to be taken into account for testing, but those aren't really the issue here. State law does in fact require the contributions to be made quarterly, and there clearly has been a violation of this law. If the plan document doesn't have a deadline for the contribution, is there an operational defect when contributions are made later than the statutory or contractual deadline? I had assumed the answer was yes. But after parsing all the plan language relating to employer contributions, I am now thinking that the answer is no. And that would mean there is no operational failure that could be corrected under VCP. Agree or disagree?