FAQs About The Delinquent Filer Voluntary Compliance Program What is the Delinquent Filer Voluntary Compliance Program (DFVCP)? Who is eligible to participate in the DFVCP? How does a plan administrator file a delinquent Form 5500 under the DFVCP? First – file a complete Form 5500 Annual Return/Report, including all schedules and attachments, for each year the plan administrator is requesting relief. Mark Box D – “If filing under an extension of time or the DFVCP, check box and attach required information” and attach a statement that the report is being submitted under the DFVCP with “Form 5500, BOX D- DFVCP Filing” prominently displayed at the top of the statement. This filing should be sent to EBSA at the appropriate ERISA Filing Acceptance System (EFAST) address listed in the instructions for the most current Form 5500 Annual Return/Report, or electronically in accordance with the EFAST electronic filing requirements. The current EFAST addresses follow: Address for filing on paper by Mail:
Address for filing on floppy disc, CD-Rom or Tape:
By Private Delivery Service:
Second – submit the payment and filing information to the DFVCP. You can submit your payment by check and paper using mail or private delivery service or you can submit it electronically using the web-based payment system that appears at the end of the DFVCP penalty calculator. By Paper – submit a copy of the completed Form 5500, without schedules or attachments, and a penalty check for the applicable penalty amount (described below), made to the Department of Labor to: By Mail:
By Private Delivery Service:
It is recommended that all filings for a plan be submitted to the DFVCP in the same envelope or package in order to ensure that those filings count towards the per-plan capped penalty amount described below. Electronically – After completing the DFVCP calculator at www.efast.dol.gov instructions are provided that will prompt you how to enter the required information to pay electronically. What is the applicable penalty amount? Note: The 80/120 participant rule described in 29 § CFR 2520.103-1(d) is applicable in determining whether a plan is a small or large plan. Large Plan Filers - Large Plan Filers - In the case of a plan with 100 or more participants at the beginning of the plan year and which is not eligible for the 80/120 participant rule (hereinafter large plan), the applicable penalty amount is $10 per day for each day the annual report is filed after the date on which the annual report was due (without regard to any extensions), not to exceed $2,000. In the case of a DFVCP submission relating to more than one delinquent filing for the same plan, the maximum penalty amount is $2,000 for each annual report, not to exceed $4,000 per plan. It is recommended that all filings for a plan be submitted to the DFVCP in the same envelope or package in order to ensure that those filings count towards the per-plan capped penalty amount. Example 1 - An administrator of a large plan with a calendar year plan year files the annual report for the 2004 plan year on August 6, 2005. The administrator failed to properly extend the filing due date of July 31, 2005. Under the DFVCP, the applicable penalty amount would be $60 (6 days x $10). Example 2 - Assume the same facts as in Example 1, except that the filer filed the annual report on March 31, 2006. Under the DFVCP, the applicable penalty amount is $2,000 (though the penalty amount calculated at $10 per day would be $2,430 for 243 days, the per-filing cap of $2,000 applies). Example 3 - Assume the same facts as in Example 2, except that the filer filed annual reports for the same plan for the 2001, 2002, and 2003 plan years on March 31, 2005. Under the DFVCP, the applicable penalty amount is $4,000, which is the per-plan filing cap for large plans. Example 4 - Assume the same facts as in Example 3, except that the filer is also submitting an additional plan year 2004 filing under the DFVCP for another plan. Under the DFVCP, the penalty amount is $6,000 ($4,000 applicable to the three filings discussed in Example 3, plus $2,000 for the Form 5500 filed for the other plan). There is now an online DFVCP penalty calculator available to help you easily and accurately compute the amount you owe to participate in the program. We encourage you to use this calculator so you can avoid any errors that could delay your participation on the program. Who should the check be made to? Is participation under the DFVCP available to all Form 5500 Series
filers? Which version of the Form 5500 should be filed? The most current Form 5500 Annual Return/Report form issued (and indicate in the appropriate space on the first page of the Form 5500 the plan year for which the annual return/report is being filed if different from the most current Form 5500), or The Form 5500 Series Annual Return/Report form issued for the plan year for which the relief is sought (but not a Form 5500-R if the filing is for a 1998 plan year or a prior year). What civil penalties may be assessed by the Department against plan
administrators who fail to file a timely annual report and who do not
participate in the DFVCP? Late Filers - Plan administrators filing a late annual report (i.e., after the date the report was required to be filed, including extensions) may be assessed $50 per day, with no limit, for the period they failed to file, determined without regard to any extensions for filing. Non-Filers - Plan administrators who fail to file an annual report may be assessed a penalty of $300 per day, up to $30,000 per year, until a complete annual report is filed. A plan administrator for a plan is delinquent on Form 5500 filings for
multiple years. If during that period, the plan’s classification has
shifted between being a large and small plan, which penalty cap applies to
the plan’s DFVCP submission? Is there a different per-plan penalty cap that applies to
administrators of small plans sponsored by Internal Revenue Code (Code)
section 501(c)(3) organizations (including Code section 403(b) small
plans)? This per-plan penalty cap, however, will not be available if, as of the date the plan files under the DFVCP, there is a delinquent or late annual report due for a plan year during which the plan was a large plan. Small plan filings that are eligible for this special per-plan penalty cap must bear the notation 501(c)(3) Plan in the upper-right corner of the first page of the Form 5500 that is submitted to the DFVCP in Charlotte, North Carolina. This notation should not be included in the filing made with EBSA in Lawrence, Kansas. If submitting to the DFVCP electronically, follow the calculator instructions for online payment at www.efast.dol.gov. Are extensions considered when calculating penalties under the DFVCP? May plans participate in the DFVCP if they have already received
correspondence from the Department of Labor or the Internal Revenue
Service? IRS late-filer penalty letters will not disqualify a plan from participating in the DFVCP. A Department of Labor Notice of Intent to Assess a Penalty will always disqualify a plan. Does a plan administrator waive any rights upon filing under the DFVCP? If a filing has been made under the DFVCP, will the plan administrator
be liable for any other Department of Labor annual reporting civil
penalties? Can plan assets be used to pay the civil penalties assessed under ERISA
§ 502(c)(2)? May an administrator of an apprenticeship and training plan, as
described in 29 CFR § 2520.104-22, or an administrator of a top hat plan,
as described in 29 CFR § 2520.104-23, participate in the DFVCP? How does an administrator of an Apprenticeship & Training Plan
participate in the DFVCP?
The plan administrator must also submit to the DFVC program, either on paper through the mail or electronically. If filing on paper, The plan administrator must also complete the most current Form 5500 Annual Return/Report (without schedules or attachments), items 1a–1b, 2a–2c, 3a–3c, and use plan number 999 for all apprenticeship and training plans. The paper copy of the form must be signed and dated, and be accompanied by a check for $750 made payable to the U.S. Department of Labor, and sent to: By Mail:
By Private Delivery Service:
If submitting to the DFVCP electronically, follow the calculator instructions for online payment at www.efast.dol.gov. The applicable $750 penalty amount is for each DFVCP submission, without regard to the number of plans maintained by the same plan sponsor for which the notices and statements are being filed or the number of participants covered by the plan or plans. How does an administrator of a Top-Hat Plan participate in the DFVCP?
Note: If a plan sponsor has more than one top hat plan that is participating in the DVFC program at the same time, a single statement covering all of the plans may be filed consistent with the general requirements for top hat plan filings under 29 CFR § 2520.104-23. The plan administrator must also submit to the DFVC program, either on paper through the mail or electronically. If filing on paper, complete the most current Form 5500 Annual Return/Report (without schedules or attachments), items 1a–1b, 2a–2c, 3a–3c, and use plan number 888 for all the top hat plans covered by the top hat plan filing under 29 CFR § 2520.104-23. The paper copy of the form must be signed and dated, and be accompanied by a check for $750 made payable to the U.S. Department of Labor, and sent to: By Mail:
By Private Delivery Service:
If submitting to the DFVCP electronically, follow the calculator instructions for online payment at www.efast.dol.gov. The applicable $750 penalty amount is for each DFVCP submission, without regard to the number of plans maintained by the same plan sponsor for which the notices and statements are being filed or the number of participants covered by the plan or plans. Does the DFVCP only apply to plan years beginning on or after January
1, 1988? Is the DFVCP applicable to filings made by direct filing entities (DFEs)
(i.e., master trusts, pooled separate accounts, common/collective trusts,
103-12 IEs, and group insurance arrangements)? A Form 5500 filed for a group insurance arrangement (GIA) under the Department’s regulations relieves the plan administrators of the individual plans participating in the GIA from the requirement to file a separate Form 5500 for each plan. The Department will allow a GIA that failed to file a GIA Form 5500 on time to use the DFVCP to correct the late filing. GIAs participating in the DFVCP are subject to the conditions applicable to large plan filers. Is it possible to obtain a waiver from the applicable penalty amount
under the DFVCP if the plan administrator can demonstrate that there is
reasonable cause why the penalty should not be assessed? Does participation in the DFVCP protect the plan administrator from
other civil penalties that may be assessed by the Internal Revenue Service
(IRS) or the Pension Benefit Guaranty Corporation (PBGC) for failing to
timely file a Form 5500 Annual Return/Report? How can a plan administrator obtain Form 5500 Series forms? Where can a plan administrator obtain more information about the DFVCP? |
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