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DOL audit ESOP - IDR Response

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Clients' retirement plan (ESOP) is being audited by DOL for tax year 2017 to present.

As a side note, clients' same retirement plan (ESOP) has two audits running concurrently with TEGE and SBSE. 

My queries relate to properly responding to initial IDR and whether stating request is outside of statute of limitation is appropriate. 

1. Per IDR, DOL is requesting records (such as articles from plan sponsor entity which was set up approx 10 years ago). 

Is it appropriate to state in response: Outside of statute of limitation. 

How do other practitioners respond?   Send everything?

2. Also, IDR is requesting service provider fee agreements which would include my own attorney engagement letter. 

I've read conflicting articles and research saying that attorney fee agreements are not protected by atty-client privilege and other resources saying they are. 

I'd prefer not to give the govt carte blanche. 

Thoughts and comments appreciated.   Warm regards 

Joe Dadich, Esq. 

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1. The date the articles were adopted is not relevant to the statute of limitations.

2.  You can start by asserting that the engagement letter is privileged.

In general, the IDRs should be treated the same as subpoenas, the responses should be numbered by page, and appropriate privileges should be asserted.  If you are not a litigator, you should team up with a litigator for the responses.

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I haven't had any situations where we thought the DOL asked for something that was inappropriate. I have had a situation where we didn't have some of the items on the list because we needed to get them from a prior service provider who was uncooperative.  The investigator's response was no problem, I'll send them a subpoena.  Based on my conversations with several DOL investigators, if they don't get something they feel they need, it's fairly easy for them to get a subpoena issued. 

I organize the requested information they request like Alan suggests. The investigators have always said they appreciate it.  Several of them also said it isn't uncommon for them to show up at the appointment time and the plan sponsor has made no effort to gather any of the requested information. 

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Not a lawyer here just a CPA who does ESOP TPA work.


Depending on what they are asking for that is from back in the day it can still be relevant.   I mean the purchase of the stock and loan agreement might have been signed 10 years ago.  But if it was a 20 year loan those documents will still be driving how shares will be released today.  In those kinds of situations I don't see how you will win a fight to withhold the documents. 


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