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What is a VFCP?

The Department of Labor (“DOL”) allows plan fiduciaries (including employers, plan officials, and parties in interest) to voluntarily comply with ERISA by self-correcting certain fiduciary breach violations under its Voluntary Fiduciary Correction Program (“VFCP”). Nineteen categories of transactions are eligible for correction under the VFCP, and the DOL has issued guidance explaining acceptable methods of correction and providing examples.If a fiduciary breach is not one of the enumerated categories, it is not eligible for the VFCP, but it may still be in the breaching fiduciary’s best interests to correct the transaction outside of the VFCP.

The categories of transactions that are eligible for correction under the VFCP are:

  1. Delinquent Participant Contributions and Participant Loan Repayments to Pension Plans

  2. Delinquent Participant Contributions to Insured Welfare Plans

  3. Delinquent Participant Contributions to Welfare Plan Trusts

  4. Fair Market Interest Rate Loans to Parties in Interest

  5. Below Market Interest Rate Loans to Parties in Interest

  6. Below Market Interest Rate Loans to Non-Parties in Interest

  7. Below Market Interest Rate Loans Due to Delay in Perfecting Security Interest

  8. Participant Loans Failing to Comply with Plan Provisions for Amount, Duration, or Level Amortization

  9. Defaulted Participant Loans

  10. Purchase of Assets by Plans from Parties in Interest

  11. Sale of Assets by Plans to Parties in Interest

  12. Sale and Leaseback of Property to Sponsoring Employers

  13. Purchase of Assets from Non-Parties in Interest at More Than Fair Market Value

  14. Sale of Assets to Non-Parties in Interest at Less Than Fair Market Value

  15. Holding of an Illiquid Asset Previously Purchased by Plan

  16. Benefit Payments Based on Improper Valuation of Plan Assets

  17. Payment of Duplicate, Excessive, or Unnecessary Compensation

  18. Improper Payment of Expenses by Plan

  19. Payment of Dual Compensation to Plan Fiduciaries

If using the VFCP, violations must be fully and accurately corrected, putting the plan, participants, and beneficiaries in the condition they would have been in had the violation not occurred,before submitting an application.¹ Full correction generally includes restoration of losses, including lost earnings or profits. Applications must include supporting documentation and proof of correction. The DOL has provided a model VFCP application form and checklist for use by applicants. There is no application fee for the VFCP, but making corrections and preparing the application can be time-consuming and often involves the services of counsel and other service providers. Certain transactions corrected using VFCP may also be eligible for relief from excise taxes.

If you have any questions about the VFCP, contact one of our attorneys.

© Boutwell Fay LLP 2019, All Rights Reserved.This handout is for information purposes only, and may constitute attorney advertising. It should not be construed as legal advice and does not create an attorney-client relationship. If you have questions or would like our advice with respect to any of this information, please contact us.The information contained in this article is effective as of July 31, 2019.


¹ This is a different standard that the IRS Voluntary Correction Program, which permits proposed corrections to be submitted.

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