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Comments on the Voluntary
Fiduciary Correction Program
- Use of Program Information
Background: Successful applicants will
receive a no-action letter that limits the ability of the Department to take enforcement
action as to the specific matters covered in the Program application. However, the Program
release states that the Department may initiate investigations where it becomes aware of
possible criminal behavior, any material misrepresentations or omissions in the Program
application, or other abuse of the Program; also, use of the Program does not preclude
action by other governmental agencies. There is no discussion of the possible use of
Program application information outside the Program.
Comment: The Department should not use the information disclosed in applications
to target particular plans or companies for ERISA enforcement investigations outside the
Program. To do so would discourage use of the Program and any type of voluntary disclosure
to the Department. By comparison, the IRS, recognizing this problem, has committed (albeit
informally) not to use information provided through its voluntary correction programs in
targeting companies for audits.
Recommendation: The Department should provide assurance that it will not use
Program application information to target companies for ERISA enforcement investigations.
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