DFVCP?

[WCC]

Large plan filer files the 2013 Form 5500 on October 15, 2014 without the audit. Filing is "filing error" but still considered a filing. The auditor now has the 2013 audit ready (many problems which I won't discuss). The auditor is recommending they file an amended return under DFVCP?

Can you file under DFVCP if you have already filed a return (even though the return is incomplete)? They have not received any correspondence from the DOL so that part is not eliminating them yet.

I don't believe they can, but cannot find an answer on the DOL website.

Thank you

[Lou S.]

Why would use DFVCP? Why not just file an amended return?

Has the DOL sent a letter about the first filing?

[WCC]

That was my thought as well, but their legal counsel and auditor are recommending DFVCP. I just wanted to make sure I was not missing something. They are worried with how late their audit is and are thinking they can somehow hedge the penalties if they can file under DFVCP.

No, they have not received any correspondence from the DOL.

[Lou S.]

As long as you have the "good" acknowledgement file, I agree with your position to simply file an amended return now.

We never did this but I've heard in the "good old days" before e-filing this was a somewhat common strategy for filing plans that couldn't get their audit done by the extended filing deadline. I understand it doesn't work quite as well these days but some still do it to buy them an extra few weeks to get the audit done. Of so I've heard.

[Belgarath]

Does the DOL have the right to notify the plan sponsor that the penalty for an incomplete filing WILL be imposed, without doing the normal letter that is sent by the IRS? (I'm not sure of the answer - offhand I don't think they are legally required to send advance "warning"?)

If so, then DFVCP might not be a bad idea - very conservative, but can limit the potential damage.

[Lou S.]

Maybe I'm wrong but I thought the procedure was if you filed timely but the DOL/IRS found it to be incomplete they they sent you a letter with 30 days to correct it. Has that changed?

[WCC]

Update - I spoke with the DOL at the number listed on the DFVC FAQ page for the EBSA's Office of the Chief Accountant.

I was told DFVC is not available in this scenario and any DFVC filing fee would be returned with an explanation that the sponsor is not delinquent but deficient. The agent told me that as long as the sponsor amends and files with the audit before receipt of a letter from the DOL then no penalties will be applied (I hope he is correct).

Thanks for the responses.