Voluntary Fiduciary Correction Program

On March 28, 2002, the department implemented the Voluntary Fiduciary Correction Program (VFCP or program) on a permanent basis. See 67 FR 15062 (March 28, 2002). The program has been operated out of PWBA’s ten regional offices on an interim basis since April 14, 2000. See 65 FR 14164 (March 15, 2000). Included in the transactions that can be corrected under the program are delinquent participant contributions to pension plans.

During the interim program, PWBA received questions and public comments requesting clarification on how to calculate earnings on delinquent participant contributions. Therefore, the department believes that additional information regarding correction of delinquent participant contributions under the VFCP will be helpful to the public.

This document answers frequently asked questions about the application of the terms of the program to specific factual situations. It also provides hypothetical examples of acceptable calculations of lost earnings in particular situations. The views expressed in this publication represent the views of the Department of Labor.

Questions concerning this guidance may be directed to the VFCP coordinator in the appropriate PWBA office.

How do I determine when participant contributions to pension plans are late?

The department’s regulation relating to definition of Plan Assets - Participant Contributions (29 CFR 2510.3-102) describes a general rule and a maximum time period for pension benefit plans. The general rule provides that the assets of a plan include amounts (other than union dues) that a participant or beneficiary pays to an employer, or amounts that a participant has withheld from his wages by an employer, for contribution to the plan as of the earliest date on which such contributions can reasonably be segregated from the employer’s general assets.

The maximum time period for pension benefit plans for transmitting participant contributions shall in no event be later than the 15^th business day of the month following the month in which the participant contribution amounts are received by the employer (in the case of amounts that a participant or beneficiary pays to an employer) or the 15^th business day of the month following the month in which such amounts would otherwise have been payable to the participant in cash (in the case of amounts withheld by an employer from a participant’s wages).

The date when participant contributions reasonably can be segregated from the employer’s general assets usually will be earlier than the maximum time period for pension plans in the regulation. Thus, when contributions reasonably can be segregated from the employer’s general assets in a shorter time period, delay in forwarding the contributions, even a delay that does not exceed the maximum time period under the regulation, may cause a breach of fiduciary duty under title I of ERISA that may be corrected under the Voluntary Fiduciary Correction Program (VFCP). Moreover, where the contributions have been delinquent longer than the maximum time period and the contributions could have been segregated earlier than the maximum time period, the loss date (as defined in the program), for purposes of calculating lost earnings (as defined in the program), is the date on which the contributions reasonably could have been segregated and not the maximum time period.

How do I show the earliest date contributions can be segregated for purposes of preparing a VFCP application?

Program applicants are reminded that the program requires that the applicant document, under its particular circumstances, the earliest date on which the contributions reasonably could have been segregated from the employer’s general assets. This documentation may consist of the plan sponsor’s past withholding and remittance history, the sponsor’s withholding and remittance process, and the minimum period between withholding and remittance.

Participant contributions to the plan were delinquent, but the dollar amount to correct is very small. Do I have to participate in the VFCP?

If participant contributions are delinquent, plan officials must take appropriate action to correct the violation. Although plan officials are not required to file an application with the department under the VFCP to correct a violation, the VFCP is available to correct a loss of any amount resulting from a transaction covered by the program. Participation in the VFCP is voluntary. However, if you do not file an application with the department, you cannot obtain the relief available under the program. Moreover, if the department discovers the violation on audit, and the correction was not complete for purposes of the program, a civil penalty may be assessed on any additional amount required by the department to fully correct the violation following the department’s audit of the plan.

Can I use the VFCP to correct a failure to forward participant loan repayments to a plan in a timely fashion?

Yes. In Advisory Opinion 2002-2A, the department concluded that, while not subject to the participant contribution regulation (29 C.F.R. § 2510.3-102), participant loan repayments paid to or withheld by an employer for purposes of transmittal to an employee benefit plan are sufficiently similar to participant contributions to justify, in the absence of regulations providing otherwise, the application of principles similar to those underlying the final participant contribution regulation for purposes of determining when such repayments become assets of the plan. Specifically, the Advisory Opinion concluded that participant loan repayments paid to or withheld by an employer for purposes of transmittal to the plan become plan assets as of the earliest date on which such repayments can reasonably be segregated from the employer’s general assets. Given the similar treatment of participant contributions and loan repayments, the department has determined that it is appropriate to permit delinquent participant loan repayments to be corrected under the VFCP in the same manner as delinquent participant contributions.

I have determined that participant contributions to the pension plan were delinquent and I want to correct under the program. How do I determine what rate of return to use for calculating earnings on the delinquent contributions?

In order to correct under the program, you will need to calculate the lost earnings on the delinquent contributions. For purposes of correction under the program, the rate of return to use is the highest of:

• The rate of return of the plan for non-participant directed plans or of individual participant accounts

• Restoration of profits (as defined under the program)

• The Internal Revenue Code §6621 rate. How to calculate each of those amounts is demonstrated in the questions and answers below

The plan investments are selected by the plan fiduciaries. How do I calculate the overall rate of return for the plan?

Where there are no distributions or expense disbursements during the period of delinquency, the overall rate of return for the plan is calculated by subtracting the amount of plan assets on the date contributions were due under the department’s regulation from the amount of plan assets on the date the delinquent contributions are repaid to the plan, but not including the addition of the delinquent contributions, divided by the amount of assets on the date the contributions were due.

Where there have been distributions or expense disbursements during the period of delinquency, applicants may demonstrate the actual average rate of return of all the investments of the plan where they have evidence to show such rate of return. In the alternative, applicants may, for administrative convenience, calculate the overall rate of return by using a fraction where the numerator is the amount of plan assets on the date the contributions are repaid minus the amount of plan assets on the date contributions were due, but not including the addition of the delinquent contributions, plus any distributions and expense disbursements made between the date the contributions were repaid and the date the contributions were due, and the denominator is the amount of assets on the date the contributions were due.

Application of calculations is illustrated in the examples at the end of this document.

The plan investments are participant directed. How do I calculate the rate of return for purposes of determining lost earnings on delinquent contributions?

When calculating the rate of return for participant-directed plans, it is necessary to calculate the rate of return for each individual participant account. The same method used for calculating the overall plan rate of return for a plan where the investments are selected by the plan fiduciaries is used for each participant account. For administrative convenience, the applicant may use the highest rate of return of any plan investment option as the rate of return for each individual participant account.

If the plan investments are participant directed and certain participants have not designated any investment options, what rate of return do I use for those participants for purposes of determining earnings on delinquent contributions?

For those participants in a participant-directed plan who have not designated any investment options, the applicant may use the plan’s overall rate of return for those participants during the period of the delinquency.

How do I determine what is the restoration of profits amount for purposes of determining earnings on delinquent contributions?

The restoration of profits amount is the amount earned by the fiduciary or party in interest on the use of the monies that should have been forwarded to the plan for the duration of the delinquency. If the purpose for which the monies were used and the earnings thereon are ascertainable, then those actual earnings are the amount of the restoration of profits.

What is the IRC §6621 rate and how do I find out what the rate was for the applicable time period?

Section 6621 of the Internal Revenue Code establishes the rates for interest on tax overpayments and underpayments. The VFCP uses the underpayment rate as the rate of return that must be examined for determining lost earnings where it is not possible to ascertain the restoration of profits amount. The Internal Revenue Service publishes the §6621(a)(2) rate quarterly. The rate announcements can be found on the internet.

Example 1

For simplicity, we have not attempted to illustrate calculations for typical numbers of participants or dollar amounts likely to be involved in actual plan transactions.

This example demonstrates correction of delinquent contributions for one pay period for a plan that is not participant-directed.

ABC Products, Inc. sponsors a 401(k) plan that allows participant contributions. ABC pays its employees and withholds the contributions on a bi-weekly basis. The plan does not provide for participant direction of investments and the plan fiduciary invests the plan assets in a diversified portfolio of investments. Employee contributions totaling $10,000.00 were not forwarded for the first pay period in June 2000. As a result, the participant contributions that normally would have been forwarded and which in fact reasonably could have been segregated from ABC’s general assets on the 19^th of June (the first Monday following the end of the pay period) remained in ABC’s general assets.

A participant received her quarterly statement and noted that the amount withheld from her paychecks exceeded the amount credited to her plan account. This participant then contacted the ABC plan fiduciary for an explanation. Upon review, the plan fiduciary noted that the June 19^th contribution remittance had not been made and deposited the contribution amount on October 2, 2000.

During the period June 19^th to October 2nd the plan’s rate of return was 6%. There were no distributions or expense disbursements during the relevant time period. The plan’s rate of return was determined by calculating the increase in value of the plan assets between June 19^th and October 2nd, divided by the value of the assets as of June 19^th. This resulted in an annualized rate of return of 6%. The IRC §6621 rate was 8% for the relevant time period. The ABC plan fiduciary uses, as required by the program, the higher of the two figures (8%), and multiplied 8% by the number of days the employee contributions were outstanding (105 days), divided by 366 (the year 2000 was a leap year), multiplied by the principal amount (as defined in the program). The calculation of lost earnings is as follows:

(.08 (rate of return) * 105 (days))/366 = .023 (loss rate)
.023 (loss rate) * $10,000.00 (principal amount) = $230.00

Full correction requires that ABC pay an additional amount representing the rate of return on this $230.00 lost earnings amount during the 14-day period between October 2nd (the date the principal amount was forwarded to the plan) and October 16^th (the date the full correction amount is paid to the plan). This calculation is made in the same manner as the lost interest calculation above.⁽¹⁾ The calculation of earnings on lost earnings is as follows:

(.08 (rate of return) * 14 (days) )/366 = .0031 (loss rate)
.0031 (loss rate)* $230.00 (lost earnings amount) = $.71

The ABC Company makes payment of the lost earnings and earnings on lost earnings of $230.71 on October 16^th. The total payment is allocated among individual participant accounts in the same proportion as the individual contributions that were delinquent have to the total amount that was delinquent. Where the amount owed to individual accounts for former employees, their beneficiaries and alternative payees who have neither account balances with nor a right to future benefits from the plan is less than $20, and the applicant demonstrates in its submission that the cost of making the distribution exceeds the cost of correction, the applicant need not make distributions to those individuals who have separated from the plan and who would receive less than $20. Instead, the applicant need only make payment to the plan in the required amount rather than making the distributions to the former employees, their beneficiaries and alternative payees.

Example 2

This example shows how to calculate the amount due to the plan when no payments are made for a number of pay periods.

Assume the same set of facts as in example 1, except that no participant contributions were forwarded for the pay periods ending June 14^th, June 28^th, July 12^th, and July 26^th. On August 2^nd, all outstanding participant contributions were restored. Contributions are reasonably segregable on first Monday following the end of the pay period (June 19^th, July 3^rd, July 17^th, July 31^st).

Contributions normally forwarded and that were in fact reasonably segregable from the employer’s general assets on June 19^th were 44 days late, on July 3^rd were 30 days late, on July 17^th were 16 days late, and on July 31^st were 2 days late. For the pay period ending on June 19^th, lost earnings are calculated as follows: determine the rate of return for the period June 19^th – August 2^nd,⁽²⁾ multiplied by 44 days (the period delinquent), divided by 366, multiplied by the principal amount. The same formula would apply for pay periods 2, 3, and 4 (determine rate of return multiplied by the number of days delinquent divided by 366 multiplied by the principal amount).

The calculation is as follows:

Lost Earnings

• For Pay Period 2 (June 19^th):
  (0.08 * 44 days) / 366 days = 0.0096
  (0.0096) * ($10,000.00) = $96.00 = lost earnings

• For Pay Period 3 (July 7^th):
  (0.08 * 30 days) / 366 days = 0.0066
  (0.0066) * ($10,000.00) = $66.00 = lost earnings

• For Pay Period 4 (July 17^th):
  (0.08 * 16 days) / 366 days = 0.0035
  (0.0035) * ($10,000.00) = $35.00 = lost earnings

• For Pay Period 5 (July 31^st):
  (0.08 * 2 days) / 366 days = 0.00044
  (0.00044) * ($10,000.00) = $4.40 = lost earnings

The total lost earnings amount is $201.40, as of August 16^th.

Earnings on the lost earnings from August 2nd (the date the principal amount was paid to the plan) to August 16^th (the date lost earnings were paid to the plan) are as follows:

• (0.08 * 14 days) / 366 days = 0.0031
  (0.0031) * ($201.40)⁽³⁾ = $00.62 = Payment of earnings on earnings

A total payment of $202.02 is made to the plan on August 16^th.

Example 3

This example shows how to calculate lost earnings for a participant-directed plan.

Assume the same facts as in example 1, except that the plan allows participant direction of contributions in any combination of four investment options. The principal amount, consisting of participant contributions, was deposited on October 2nd. The full correction amount (lost earnings and earnings on lost earnings) was deposited fourteen days later, on October 16^th.

During the preparation of the VFCP application the applicant determines the annualized rates of return for the four investment options. For the period June 19^th -October 2^nd, the annualized rate of return for Option 1 was 4%, Option 2 was 6%, Option 3 was 10%, and Option 4 was 20%. Further, the applicant determined that during this period the IRC §6621(a)(2) rate was 8%. The applicant also determined that plan participants A, B, C made their allocations as follows:

During the June 19^th -- October 2nd period, the applicant determines each participant’s rate of return by taking the sum of each option’s allocation percentage multiplied by that option’s rate of return. For example, participant A’s actual rate of return equals (.25 * .04) + (.25 * .06) + (.25 * .10) + (.25 * .20) for an overall rate of return during the period of 10 percent (.10). Similarly, the rates of return are calculated for the remaining participants and compared to the IRC §6621(a)(2) rate. The results are shown as follows:

The applicant calculates lost earnings by multiplying the calculation rate (far right column above) by the number of days the contributions were delinquent, divided by 366. That number is multiplied by the dollar amount of the participants’ allocations. Note that full correction requires payment of an additional amount representing the earnings on lost earnings as explained in example 1.

The calculations, based on each participant’s calculation rate, are as follows:

Lost Earnings

• Participant A
  (0.10 * 105 days) / 366 days = 0.03
  (0.03) * ($300.00) = $9.00 = lost earnings
  (0.10 * 14 days) / 366 = .004
  (0.004) * ($9.00) = $0.04 = Payment of earnings on lost earnings
  Total payment $9.04

• Participant B
  (0.08 * 105 days) / 366 days = 0.023
  (0.023) * ($200.00) = $4.60 = lost earnings
  (0.08 * 14 days) / 366 = .003
  (0.003) * ($4.60) = $0.01 = Payment of earnings on lost earnings
  Total payment $4.61

• Participant C
  (0.08 * 105 days) / 366 days = 0.023
  (0.023) * ($200.00) = $4.60 = lost earnings
  (0.08 * 14 days / 366 = .003
  (0.003) * ($4.60) = $0.01 = Payment of earnings on lost earnings
  Total payment $4.61

The applicant also has the option of using, for administrative convenience, the highest rate during the applicable period for all participants. In this example that rate would be a 20% calculation rate (Option 4). Note again that full correction requires that XYZ pay an additional amount representing the earnings on lost earnings as explained in example 1.

The calculation for participant A, based on the highest rate during the applicable period, is as follows:

• (0.20 * 105 days) / 366 days = 0.06
  (0.06) * ($300.00) = $18.00 = lost earnings
  (0.20 * 14 days / 366 = 0.008
  (0.008) * ($18.00) = $0.14 = Payment of earnings on lost earnings

Total payment for participant A is $18.14. The calculation is applied to each participant’s contribution amount.

Example 4

This example shows calculation of lost earnings and earnings on lost earnings where contributions are late each pay period for several pay periods and the plan is participant-directed.

LMN, Inc. (LMN) sponsors a 401(k) plan that allows participant direction of contributions in any combination of four investment options. Participants may change their investment allocations on a daily basis. LMN pays its employees and withholds contributions that total $10,000.00 on a monthly basis during 2000. Pay day is the last day of each month. The applicant determines that the employer is able to segregate the contributions on the second business day of the month following pay day. The applicant also finds that lost earnings are due to the plan because of delinquencies. The following table reflects LMN’s remittance of participant contributions:

For the months in which contributions were forwarded after the reasonably segregable date, the applicant has determined:

The last row of the above table reflects the return for each option from the first reasonably segregable date (2/2) through the last actual date forwarded (5/26).

To complete the VFCP application, the applicant must determine each participant’s allocation during each period and the associated rates of return. This calculation will result in the participant’s rate of return for the period, which will then be multiplied by the participant’s contribution amount multiplied by the days delinquent divided by 366 days. Note that full correction requires that LMN pay an additional amount representing the earnings on lost earnings as explained in example 1. This amount is restored on May 30^th.

For administrative convenience, the applicant decides not to determine the participants’ rate of return based on their daily investment reallocation but instead to utilize the highest rate of return for the entire period. That calculation would be: highest rate of return multiplied by the days delinquent divided by 366. That number is then multiplied by the principal amount.

Using the highest rate of return for administrative convenience, the LMN, Inc. plan fiduciary’s calculation would look as follows:

• For January
  (0.20 * 7 days) / 366 days = 0.0038
  (0.0038) * ($10,000.00) = $38.00 = lost earnings

• For February
  (0.20 * 20 days) / 366 days = 0.011
  (0.011) * ($10,000.00) = $110.00 = lost earnings

• For March
  (0.20 * 10 days) / 366 days = 0.0055
  (0.0055) * ($10,000.00) = $55.00 = lost earnings

• For April
  (0.20 * 24 days) / 366 days = 0.013
  (0.013) * ($10,000.00) = $130.00 = lost earnings

Total lost earnings = $333.00

Earnings on lost earnings, based on the difference between the date forwarded and the correction date (right column of chart A), must also be calculated and restored.

The plan’s rate of return is determined by calculating the increase in value of the plan assets between October 2 and October 16, divided by the value of the assets as of October 2, 2000. This results in an annualized rate of return of less than 8%.

See example 1 for the proper method of calculating the rate of return.

Footnotes

1. The sum of the lost earnings.  The plan’s rate of return is determined by calculating the increase in value of the plan assets between October 2 and October 16, divided by the value of the assets as of October 2, 2000.  This results in an annualized rate of return of less than 8%.

2. See example1 for the proper method of calculating the rate of return.

3. The sum of the lost earnings.

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