Top Hat Filing - for purposes of the 120 day rule, do you use the date

[Guest LDH1]

DOL Reg. 2520.104-23 states that a top hat (my choice of words, not the DOL) filing must be made within 120 days after the plan becomes subject to Part 1 of ERISA. A plan becomes subject to if it is established or maintained. So, for purposes of counting the 120 days do you use the date of adoption or the effective date of the plan?

[Alf]

We have always used the earlier date for our company's plans just to be safe. It is a pretty important filing, so there is no point in taking the risk that using the later date is ok.

[Guest wmacdonald]

The statement must be filed with the Department of Labor within 120 days "from the inception of the plan". To me, that means the plan date, or when the plan starts.

[Guest LDH1]

Not sure where you got the inception of the plan language because the DOL Regulations state that it must be filed within 120 days of being subject to Part 1 of ERISA. I spoke to a person a the DOL's Technical Interpretations and she said that the filing should be made within 120 days of ADOPTION. Of course, there is no office guidance. Another piece of guidance that is somewhat instructive is the old SPD regulations where similar language is used, but they give a specific answer to the adoption versus effective date issue.