"It is not clear to me whether DFVCP becomes unavailable for all years once a DOL notice is received for any year. The FAQs provide that the DFVCP filing must be made 'prior to the date on which the administrator is notified in writing by the [DOL] of a failure to file a timely annual report under Title I of [ERISA].' But does that mean notice of a failure for one year would preclude a DFVCP filing for another year for which notice of a failure to file has not been received? Has anyone had any experience with this issue?"

"I have a client who is a partnership of corporations. One of the owners of one of the corporations participates in the plan, the owners do not. The partnership lost a contract and as such all of his employees with the exception of the owners of the corporations are being terminated (it is a condition of their employment when the contract is lost they are terminated). If it matters most of the participants are HCEs but only 1 is an owner. They wants to terminate the plan but rely on a 3% SHNEC for to pass 401(k) testing. All of the employees have been notified and they will be let go on a certain date (say June 30 ... well before the end of the year) with the exception of the owners who are employed by their respective corporations. The partnership will continue for some time (well past the end of the year if not several years) as they are still being paid for work they have already done. Can they terminate the plan before the end of the year but after all of the employees have been terminated with the exception of the owners and still rely on the 3% SHNEC?"