Reporting delinquent contributions after EBSA audit closing letter

[Guest Bearlee]

EBSA audit happened in 2011. EBSA only asked for 3 years of late contributions but there were 5 additional years going back of delinquent employee contributions which were disclosed in Schedule H, as well as completely disclosed upon EBSA audit. EBSA auditor did not enforce the additional 5 years. Plan Sponsor repaid lost earnings and plan received a closing letter with no further enforcement.

For 2011 Form 5500, I realize you will have to report all 8 years of delinquent contributions but you get to attach a schedule that shows at least 3 years were corrected (outside of VFCP).

Does the 5 years of delinquent contributions have to continue to be reported as uncorrected in 2011 and beyond, until you actually correct it? That seems like a harsh result if even EBSA doesn't enforce this in an actual audit of a plan. Are there any statute of limitations issues? Some input on this would be appreciated. Thank you.

BL