Late 5500 - IRS and DOL penalties

[t.haley]

On plan review we discovered client filed 2009 and 2010 Form 5500s late for PS plan (less than 100 participants). As far as we know they have not received letters from the IRS or DOL regarding the late filings. Client's accountant (who filed the returns late) told us he wrote a letter to the IRS asking to abate the penalty and they agreed. (At this point we don't know if the letter to the IRS was in response to a penalty letter from the IRS.) But what about the DOL penalty? I know the IRS has agreed to waive their penalty if the returns are filed late under DFVCP, but what about where the returns were not filed under DFVCP? EFAST shows that the box for DFVCP filing was not checked on the returns. What options do we have at this point? The returns were already filed (late), not under DFVCP. Should we file amended returns and check the DFVCP box and pay the reduced penalty? I don't think the IRS agreeing to abate the penalty binds the DOL in any way. Any thoughts?

[ETA Consulting LLC]

You know, this is an interesting question. We know that when the plan files under DFVC, the IRS and PBGC agrees to accept that filing to the DOL at satisfying their penalties. It 'could' be argued that there is overall reciprosity among the agencies, but there appears to be only one way to find out; let us know how it works out for you