DFVC Eligibility

[Guest ebgroup]

The program says you are not eligible if you have recieved a notice of intent from the DOL. Does anyone know if that means I am ineligible to file for all years. For example, if I recieve a notice of intent for 2009, can I still file under DFVC for 2008?

In addition, if I do file and I am not eligible. by filing and sending in my check, have I waived my ability to argue reasonable cause for the 2008 year?

Has anyone been through this or know how the DOL will apply?

Thanks

[12AX7]

Are you speaking hypothetically or did the plan sponsor receive a letter from the DOL? Most initial letters for late filings come from the IRS. Let us know.

[Guest ebgroup]

Are you speaking hypothetically or did the plan sponsor receive a letter from the DOL? Most initial letters for late filings come from the IRS. Let us know.

I understand. I am asking about when the plan sponsor has a letter from the DOL, I think the FAQs are pretty clear about how to handle letters from the IRS.

Thank you.

[BG5150]

It's not clear in the FAQ on the EBSA site.

Did you call the DoL?

[Kevin C]

I would say a letter from the DOL makes the Plan Administrator ineligible for DFVC. I don't see anything limiting that to only the plan year mentioned in the DOL letter. The final rule says:

.02 Eligibility. The DFVC Program is available only to a plan

administrator that complies with the requirements of Section 3 or

Section 4, as appropriate, of this Notice prior to the date on which

the administrator is notified in writing by the Department of a failure

to file a timely annual report under Title I of ERISA.

It's been several years since I've seen a DOL letter about a failure to file timely.

[BG5150]

...notified in writing by the Department of a failure

to file a timely annual report under Title I of ERISA.

Where it gets ambiguous, I guess, is the wording "a failure to file a timely annual report..." Does that mean for a particular year? Or, is it once they catch you for, say, 2009, are you're outta luck for any other years, too?

[jpod]

I don't see any ambiguity, frankly: the notification from DOL disqualifies you from DFVCP only with respect to the 5500(s) to which the notification relates. If it didn't mean that, what would it mean? Would you be disqualified from the program for all 5500s not yet filed, or only those already late? And, as a policy matter, why would DOL wish to discourage voluntary compliance by disqualifying you from using the program for other years?

[Guest ebgroup]

...notified in writing by the Department of a failure

to file a timely annual report under Title I of ERISA.

Where it gets ambiguous, I guess, is the wording "a failure to file a timely annual report..." Does that mean for a particular year? Or, is it once they catch you for, say, 2009, are you're outta luck for any other years, too?

Yes, that is the question, what I am trying to figure out is if there is harm in trying.

What is giving me pause is the Q 21 of the FAQ which states:

"Payment of a penalty under the terms of the DFVCP constitutes a waiver of an administrator’s right both to receive a notice of assessment from the Department and to contest the Department’s assessment of the penalty amount. If the plan administrator chooses not to waive these rights, the plan administrator must file with EFAST in Lawrence, Kansas in the regular manner and not pursuant to the DFVCP."

Is it possible that by filing, when I am not eligible, I could waive rights?