by Kelsey Mayo
Partner, Poyner Spruill
Kelsey’s practice is focused in the areas of Employee Benefits and Executive Compensation. She works with business owners and HR executives to understand and manage employee benefits and executive compensation arrangements. She routinely represents clients before the Internal Revenue Service, Department of Labor, and Pension Benefit Guarantee Corporation and has extensive experience in virtually all aspects of employee benefit plans and executive compensation arrangements.
Great news for plan sponsors! Effective June 2022, the IRS is launching a pilot program that will allow plan sponsors a chance to avoid costly audit sanctions. The program allows plan sponsors to find and correct plan errors in advance of an IRS audit. As outlined in the June 3, 2022 IRS announcement, the pilot program should work something like this:
- The IRS will send the plan sponsor a letter that it was selected for examination and give the employer 90 days to conduct a self-audit. The letter will identify one or more areas that the IRS is focused on (including specific review procedures for that issue) and also direct the sponsor to review other plan documentation and operations to find plan compliance issues.
- If a plan sponsor finds an error, it may correct the error using principles set forth in the IRS Employee Plans Compliance Resolution System (EPCRS).
- If the error is eligible for self-correction under EPCRS, the plan sponsor can correct in the 90-day period and then submit documentation of the error and the correction to the IRS.
- If the error cannot be self-corrected, the plan sponsor may disclose the error and ask to correct using a closing agreement. The IRS will assess a sanction in this case, BUT unlike in the past when these errors would generate large sanctions, if the only errors discovered are those self-identified by the sponsor, the IRS will assess a sanction equal to the much lower VCP correction fee. Under the current structure, the highest potential VCP fee is $3,500 (determined based on the amount of assets in a plan).
- Regardless of whether an error is discovered, the plan sponsor will respond to the IRS within 90 days and provide information regarding the issue identified and its other review procedures.
- The IRS will open an audit for any plan sponsor who does not respond during the 90-day period.
- The IRS will review the documentation submitted and can choose to: (1) close the examination, (2) conduct a limited-scope audit, or (3) open a full-scope audit of the plan.
The pilot program is designed to reduce the burdens of IRS examinations and encourage plan corrections and compliance.
If you receive a letter from the IRS, contact your TPA and ERISA attorney as soon as possible. The 90-day review period will pass very quickly, so time is of the essence—you’ll want to use every day possible to review the plan and respond to ensure you avoid a broader audit and, if needed, take advantage of the correction opportunities. Your plan partners are here to help, so reach out quickly!