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EBSA Issues Notice Updating Program For Delinquent Filer Voluntary Compliance

Tuesday, January 29, 2013

The Department of Labor's Employee Benefits Security Administration issued a notice Jan. 28 officially outlining technical changes to the Delinquent Filer Voluntary Compliance Program since the program's last comprehensive update in 2002.

DOL has periodically updated its DFVC Program website to reflect changes, the notice said. The previous update was to reflect the final regulation mandating electronic filing of Form 5500 annual reports through the EFAST2 system (102 PBD, 5/29/07; 34 BPR 1268, 6/5/07), DOL said.

The notice “is intended to be a comprehensive update and restatement of the DFVC Program that incorporates the changes that have been made in the DFVC Program since the 2002 Notice,” DOL said.

The technical updates in the notice “incorporate an existing voluntary online penalty calculator and web payment system into the DFVC Program. The updates also fully integrate the DFVC Program into the EFAST2 electronic filing system, including a Form 5500 Version Selection Tool … which helps filers determine which forms they need to use when filing electronically for past years,” DOL said in a news release announcing the changes.

The delinquent filer voluntary compliance program allows eligible plan administrators to lessen the assessment of civil penalties for failure to file Form 5500 annual reports. Eligible administrators are considered those who have not been notified of a failure to file by the DOL. To participate in the program, administrators must file complete Form 5500s with accompanying schedules, for each year they have not been filed and for which relief is requested.

The basic penalty under the program is $10 per day for delinquent filings. The maximum penalty for a single late annual report is $750 for a small plan (generally a plan with fewer than 100 participants at the beginning of the plan year) and $2,000 for a large plan.

The changes in the notice will make the program “better integrated with the DFVC Program website that is used for announcing non-substantive, technical adjustments to the Program,” DOL said.

The Internal Revenue Service intends to release separate guidance providing relief under the tax code for delinquent filings of Forms 5500 and 5500-SF “where the conditions of this DFVC Program and any requirements imposed by the IRS under such separate guidance have been satisfied,” DOL said.

Additionally, the notice said the Pension Benefit Guaranty Corporation will provide some penalty relief under Employee Retirement Income Security Act Section 4071 for delinquent filings of annual reports when the requirements of the DFVC program are satisfied.

The changes to the program are effective Jan. 29, when the notice will be published in the Federal Register.

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