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Assume the same facts as in Example 3, except that the filer is also submitting an additional plan year 2001 filing under the DFVC Program for another plan.
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 DFVC Program submission?
Are extensions considered when calculating penalties under the DFVC Program?
By properly filing these statements and meeting the other applicable DFVC Program requirements [see Q 83, 85], administrators will be considered as having elected compliance with the exemption and/or alternative method of compliance prescribed in Sections 2520.104-22 or 2520.104-23, as appropriate, for all subsequent plan years.
The applicable $750 penalty amount is for each DFVC 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." (2)
If forms have already been filed late and are subject to the DOL penalties, make a copy of the first page of the filing, write in bold red "DFVC Program" and mail along with the applicable penalty check to the DOL.
If the Service generates a penalty notice based on a late Form 5500 that was subsequently submitted to the DOL under the DFVC Program, respond to that notice explaining the reason for the late filing and that the sponsor has filed under the DFVC program.
Top hat plans that failed to file their one-time statement with the DOL exempting them from future Forms 5500 can also file under the DFVC program.
Secondly, if there are extenuating circumstances, consider not entering the DFVC program and requesting a penalty abatement under reasonable cause.
If this argument fails, the plan sponsors could be subject to the maximum penalties without the benefit of DFVC.
The program announcement notes that because the plan administrator is personally liable for civil penalties under ERISA Section 502(c)(2), DFVC penalties may not be paid from plan assets.
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