Hopefully Dumb DFVCP Question

[401 Chaos]

Hopefully this is a dumb question with an easy answer (regardless of whether it's the desired answer or not):

If a plan has filed their Form 5500 late but without going through the DFVCP program, can you still resubmit under DFVCP, pay the applicable penalty amount and get in under DFVCP if you file before the DOL notifies you in writing of a late filed return? In this case, the plan has just received a letter from the IRS but nothing from the DOL. The DFVCP guidance says you are eligible if you haven't received a notice from the DOL and doesn't appear to say anything about excluding those that have already filed their Form 5500 and want to file an amended return or otherwise try and put under DFVCP.

Thanks for any thoughts or suggestions.

[Belgarath]

I think it is a very good question! I agree, the guidance seems to indicate that you would be eligible. (See section 2 on the link below) I'd say to go ahead and file. what's the worst that can happen? It gets rejected, and you are no worse off than before. And if nothing else, it could put you in a stronger bargaining position if it comes to trying to negotiate if the DOL imposes the full penalty.

http://webapps.dol.gov/FederalRegister/HtmlDisplay.aspx?DocId=26618&AgencyId=8&DocumentType=3

[401 Chaos]

Thanks very much.

I spoke with the DOL and they confirmed this was doable. Advised that the proper approach is to just file through DFVCP without filing another Form 5500 (or an amended Form 5500) and respond to the IRS along the same lines we generally would if just filing the Form 5500 under DFVCP.