- Can I use the Voluntary Correction Program to correct errors an IRS Determination agent discovers while reviewing my plan document?
No, VCP isn’t available if the plan or the plan sponsor is “under examination.” This term includes any situation where the IRS Determination agent requests additional information that reveals or would reveal the existence of a plan document error the plan sponsor did not previously identify. See sections 4.02 and 5.08 of Revenue Procedure 2019-19.
- Can I reserve the right to use VCP to correct errors found during the determination letter application process by including a disclaimer in the application, stating, for example, that “I elect to be treated under the VCP program if the IRS finds an error"?
No. Although it’s possible for you to preserve your right to use VCP if you prominently disclose specific plan document errors in your determination letter application’s cover letter, the above disclaimer wouldn’t be acceptable because it’s too broad and fails to describe a specific error.
- I discovered a possible operational error while collecting information requested by an IRS Determination agent. Can I inform the agent of the potential error and still be eligible to submit the plan under the VCP?
The plan sponsor would not be eligible for the VCP if the operational failure would have been revealed by reviewing the information that was requested by the IRS Determination agent. In this instance, the plan is considered to be “under examination.” See sections 4.02 and 5.08 of the Revenue Procedure.
- I discovered unrelated operational error in my plan while the plan document was under review by an IRS Determination agent. Can I submit the error for correction under the VCP while my Determination application is pending?
Yes, the plan sponsor would be eligible for VCP since the failure would not have been revealed by the plan document under review by the IRS Determination agent. In this instance, the plan is not considered to be “under examination.”