Failed RMDs/Eligible Rollover Distribution

[Guest mcw]

A plan failed to make RMDs for several years. Two questions:

1. If the employer corrects through VCP and asks for a penaly waiver, should the employee (HCE) also file a Form 5329 for each year? I doubt we will hear back from IRS on the VCP submission before the deadline for filing the return.

2. Are the distribution of earnings eligible rollover distributions? I would think not but can't find anything that excludes them from the definition.