Top Hat Filing

[Guest Jack19]

Does anyone have any thoughts about whether an employer who maintains a Top Hat plan (and has already filed) needs to file a statement with the Department of Labor if the employer adds another Top Hat plan? The CFR states that "[o]nly one statement need be filed for each employer maintaining one or more plans." Do any employers actually submit a new statement upon establishing a new Top Hat plan?

[QDROphile]

A second filing is common because it is not that much trouble and removes any doubt about interpretation or policy.

[jpod]

The conditions for the waiver in the regulation could not be clearer: file once and only once. Why do what is not required?

[Guest Jack19]

I agree w/ jpod-- the language seems clear. The reason I ask, however, is that a lawyer at my firm informally spoke to someone from the DOL, and the person from the DOL said that a new filing is required for a new plan. I haven't been able to find anything else on the DOL's webpage or in its opinion or informational letters that say that.

[jpod]

I've heard and read (probably on this Board) that DOL will say that, but there is nothing in the regulation that would support that interpretation (assuming it really is an "interpretation," as opposed to a pipe dream).

[QDROphile]

You have just spent more time in inquiry than it would have taken for a filing. If you had spent the time filing, you would have nothing to worry about except the loss of postage, whether or the DOL can read a statute (which it cannot sometimes).

[jpod]

QDRO: This is, after all, a discussion board. This discussion may someday be useful to a poor soul who fears that he or she has blown the 120-day deadline for a second filing, only to learn that there is no reason to pursue or pay for DFVCP relief.

[QDROphile]

That would be a different discussion. What to do to avoid issues and what to do after certain facts have set in are two different matters.

I have no quarrel with your argument based on a literal reading of the statute and I think no second filing is required. But I advise a second filing, one of the few times I advise to run with the herd.

[Guest Jack19]

Thanks everyone for your help.

For what it's worth: I called the DOL and eventually was referred to someone from the Office of the Chief Accountant (part of the Pension and Welfare Benefits Administration). She "recommended" that a sponsor file again, but when I asked her to substantiate her recommendation by pointing to any authority, she could not. Rather, it was based on how she interpreted the reg.

[Christine Roberts]

This is an interesting discussion. I would add the following, from DOL FAQs re: Delinquent Filer Program as specifically applied to top hat plans that failed to file a notice:

"Note: If a plan sponsor has more than one top hat plan that is participating in the DVFC program at the same time, a single statement covering all of the plans may be filed consistent with the general requirements for top hat plan filings under 29 CFR § 2520.104-23." (Emphasis added.)

Source: http://www.dol.gov/ebsa/faqs/faq_dfvc.html

[401 Chaos]

This is an interesting and helpful discussion. On this last point regarding DFVCP filings, I would just note that part of the top hat filing requirement is to provide information on how many other plans are sponsored by the employer, etc. such that an argument could be made that a single filing under DFVCP should, in essence, put the DOL on notice of all the top hat plans sponsored by that employer at that point in time. In short, I think a single filing under the DFVCP arguably provides just the sort of notice of the other plans in existence in a way that would make additional DFVCP filings unnecessary. Contrast that, however, with an employer that makes one top hat plan filing at a time when they sponsor only one plan. If they later go on to adopt additional plans in the future, there would be no real notice of that or updating of the original information for the DOL. Whether a new filing is required each time a plan is adopted may depend on what one thinks the purpose of the filing is--simply to provide the DOL a list of all employers having ever adopted a Top Hat plan without any requirement to update or notify of additional plans or to provide more of a record of the number of top hat plans adopted. I do not have the answer to that but tend to agree with QDROPhile that it's best to file for new plans as that seems the common practice and the general recommendation we have received from the DOL.

On a related DFVCP top hat plan filing note, I spoke with the DOL recently regarding how the single filing worked in a large company / controlled group setting. Although the DOL confirmed that a single employer could make just one submission and pay just one $750 fee no matter how many top hat plans of that employer were being filed / covered, the DOL viewed the definition of "employer" for such purposes to be limited to each employer entity / employer identification number (EIN) such that companies with multiple top hat plans at the parent and subsidiary levels and/or scattered across multiple subs with different EINs should file a separate submission for each entity with a separate EIN. I suppose that may be obvious but just wanted to pass along in case helpful for anyone that has a parent that hopes to avoid multiple filings and/or tries to do just one DFVCP filing at the parent level.

[J. Bringhurst]

We file each time a new plan is adopted as the information contained in prior filing(s) is no longer entirely accurate. Better safe than sorry, expecially since this submission is not particularly time consuming.