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New Amnesty Program for Delinquent 5500 Filers

The Department of Labor's Pension and Welfare Benefits Administration announced a new "Delinquent Filer Voluntary Compliance (DFVC) Program" for late filers of the Form 5500 Series Annual Return/Reports for employee welfare and pension benefit plans. The program is effective April 27, 1995 and is described as being of "indefinite duration."

Without the program, a plan administrator may be personally liable for civil penalties of up to $1,000 a day for failure or refusal to file complete and timely annual reports for employee benefit plans. Under the DFVC program, a plan administrator who files an annual report within 12 months after its normal due date (without regard to any extensions) must pay a penalty of $50 per day (up to a maximum of $2,500) for Form 5500 filers (plans covering 100 or more participants) or $1,000 for Form 5500-C filers (plans with fewer than 100 participants). If a plan administrator files an annual report more than 12 months after its normal due date (without regard to any extensions), the penalty is $5,000 for Form 5500 filers and $2,000 for Form 5500-C filers. The plan administrator is personally liable for these penalties, which means that they may not be paid from the assets of the employee benefit plan.

A plan administrator who uses the DFVC program must file a completed Form 5500 or Form 5500-C, whichever applies, with all required schedules and attachments with the Internal Revenue Service ("IRS"). The first page of that Form 5500 or Form 5500-C must be clearly labeled "DFVC Program" in bold red print. The plan administrator must also file with PWBA in Atlanta a signed and dated copy of the first page of the Form 5500 or Form 5500-C and a check made payable to the U.S. Department of Labor for the applicable penalty.

Like a Department of Labor amnesty program several years ago, the DFVC program offers relief to any "top-hat plan" (a deferred compensation plan for a select group of management or highly compensated employees) that failed to timely file its one-time top-hat statement with the Department of Labor. The statement normally must be filed within 120 days after the top-hat plan is established. A plan administrator of a top-hat plan who uses the DFVC program must file the one-time top-hat statement with the Department of Labor in Washington, D.C. The plan administrator must also file with the PWBA a partially completed first page of Form 5500 (labeled "Top-Hat Plan/DFVC Program" in bold red print) and a check for $2,500 payable to the Department of Labor and labeled "DFVC Program" in bold red print.

As was the case under the previous Department of Labor amnesty program, paying the appropriate penalty to the Department of Labor under the DFVC program is no guarantee that other federal agencies, such as the IRS or the Pension Benefit Guaranty Corporation, will not assess their own non-filing or late-filing penalties. However, multiple penalties were not assessed during the previous amnesty program and are unlikely to be assessed this time.