VFCP in excise tax

[R. Butler]

Plan sponsor is filing a VFCP application for several late deposits. Two of the late deposits were remitted later than 180 days. Provided the plan sposnor meets the PTE 2002-51 requirements for all of the other late remittances can the excise tax waiver be claimed for all but the 2 dpeosits remitted outside of 180 days?

Thank you for any guidance.

[Belgarath]

FWIW I think it should be fine. See the following from 75 FR 2070. Since the safe harbor is available on a deposit by deposit basis, then the VFC excise tax relief should be similarly available on a deposit by deposit basis with all other requirements being met as you have stipulated.

Deposit-by-Deposit Basis

One commenter asked whether a

failure to meet the safe harbor during

one payroll period will result in

application of the general rule for

determining when participant

contributions are plan assets for an

entire plan year. The safe harbor is

available on a deposit-by-deposit basis,

such that a failure to satisfy the safe

harbor for any deposit of participant

contribution amounts to a plan will not

result in the unavailability of the safe

harbor for any other deposit to the plan.