We have a client who received a IRS notice stating that their 10/31/2007 5500 was not received. The return was prepared and sent to the client but the client could not confirm that it was mailed timely. They responded to that letter stating that it was mailed timely and attached a copy of the return to the letter. Apparently the IRS did not buy it, additional notices were sent and most recently we had to e-file the return using 2009 forms and also attached a letter of explanation and a copy of the original 10/31/2007 return. They have since recieved a notice from the IRS stating the return was received after the due date and are proposing a $15,000 penalty. The letter does have a spot where you can enter DFVC information. My question is can they still file through DFVC paying the $750 and then respond to this notice stating that they have done this? They have not received any notification from the DOL.

Any input would be appreciated.

Thanks

To my knowledge the DFVC is available until they receive correspondence from the DOL.

May plans participate in the DFVCP if they have already received correspondence from the Department of Labor or the Internal Revenue Service?

Plan administrators are eligible to pay reduced civil penalties under the program if the required filings under the DFVCP are made prior to the date on which the administrator is notified in writing by the Department of Labor of a failure to file a timely annual report under Title I of the Employee Retirement Security Act of 1974 (ERISA).

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.

So, has anyone ever received a Department of Labor Notice of Intent to Assess a Penalty? And what happened, were you able to get the penalty abated? Curious minds...

So even though they have filed the return and it has a "Filing Received" status we could go ahead and file another return checking the DFVC box? Would you also check the amended box? Does anyone know when you receive the DFVC number and about how long that might take?

Appreciate the input.

Thanks

You can definitly still do the DFVC. We've done it after gettng that letter. I try to avoid getting that letter of course because you need to have them abate the penalty at this point (which they should do if you use DFVC, but of course there are no guarantees).

And although I had to think about this after amending about 50 processing stopped's over the last 2 monhts, amending a plan with filing received is a perfectly normal thing since you're changing the way you checked the boxes.

Trick: When responding to the IRS initial letter looking for the 5500, do NOT send a copy of the 5500. If you do, they automatically send it back with a template letter telling you you need to efile. I was told by the IRS that they won't even look at it.

We had a plan sponsor that filed 19 days late. IRS sent letter. The DOL instructed us not to amend the filing, but to essentially just act like we initially filed under DFVC. The DOL rep said just to mail a copy of the filing minus schedules to the DFVCP with applicable penalty amount.

I have a question on how to electronically file a 2007 Form 5500 where the client has proof that that the filing was received by the EBSA. The client received an IRS letter on 10/25/10 indicating that the 2007 filing was not received. The client telephoned the IRS to explain that they have proof that the filing was received by the EBSA. The IRS agent indicated that they will continue to receive IRS letters even though there is proof that the 5500 was received until the filing is actually received.

Does anyone know how to file a 2007 Form 5500 (using 2009 forms) without checking the DFVC box and not have it reject? My plan is to attach the proof that the 2007 Filing was received by the EBSA to the filing. Should we check that it's an amended filing? Or check the Special Extension box? How do we get this 2007 filing to show as received at the DOL without triggering a penalty letter, or without it being rejected for checking the wrong box?

Thanks for your wisdom.