JohnCheek

Obviously, keep an eye on the BenefitsLink jobs board. I think you should try LinkedIn, and join some of the groups related to TPA work.

Sure. Almost every collectively bargained union plan I audit has employees to adminiter the plan.

Instructions say "answer all questions with respect to the plan or DFE year", unless otherwise explicitly stated... I would include the vision benefit code if the benefit was provided at any time during the year.

" If they do not the DOL will reject the audit (I'm not sure what the consequences of that are). " The consequences of DOL rejecting the audit: The 5500 will be treated as not having been filed, leading to an annual penalty of $30,000, for each year. IF 2004 were rejected, for example, the penalty could be 30k for not filing 2004 in 2004, and $30k in 04, and in 06, and in 07, etc. DOL would probably then reject 2005, with $30k penalty in 05, and again in 06, and in 07, etc... Could add up to millions pretty quickly.

A payroll audit is not the same as a financial statment audit, and there is no requirement that the payroll auditor be "independent". While many funds hire a payroll auditor that is different from their financial auditor, I think more use the same firm for financial and payroll audits. And most fund auditors tend to also be the union auditors. When I do a payroll audit, I am not only checking that the fund contributions were calculated and reported in accordance with the collective bargaining agreement, but I am expected to check wages, OT provisions, and other CBA provisions that relate to union matters. I am not sure how a confidentiality agreement could be enforced.

I've been hanging around lawyers too long, when I start to disagree with a future Supreme Court judge. As you phrased your original post, I think that was an ERISA plan. Marcella describes a different scenario- A plan that is open to any dues paying member, whether they are an employer, employee, a sole proprietor, or none of the above, is probably not an ERISA plan. But would one sole proprietor would be enough to kick it out of ERISA jusridiction? I would have argued that ERISA applies if the primary purpose of the plan is to provide benefits to employees, who are participants by virtue of their employment, especially if the employers are paying for the benefits.

If you are SURE that you are a non ERISA plan, you can discontinue filing. I would consider filing an amended 2008 with "final return" checked off. Either way, you will probably get some correspondence, so be prepared to explain that your plan is not an ERISA plan, and should not have filed in prior years. Or, attach that explanation to the amended final 2008, and hope that is the end of it.

I believe you do have an ERISA welfare plan, whether it is run through an Association, or run through a single employer. However, you can avoid the ERISA filing burdens by filing a one-time notice with the govt and posting that notice in an appropriate location. See 29 CFR 2520.104.22 for details, and then keep a permanent record that you filed that notice. The unfunded/general assets exception from filing could work if total participants are under 100, but the one-time notice exception is better, because it has no limit on participants.

An audit of a multiple-employer plan is almost identical to an audit of a multiemployer plan, and there are very few differences in the operations of each plan. The main difference is that the multiemployer plan is maintained persuant to one or more collective bargaining agreements. In both cases, employers make contributions to the plans, which are comingled with all other plan assets. Contributions from employer A are not segregated, and not designated to pay benefits only for employees of A. (In the case of multiple employer plans, I believe discrimination testing is done for each employer, rather than on a plan-wide basis). It would be possible to audit parts of a multi- or multiple employer plan, such as contributions, eligibility, and benefits, which are specific to one employer, but investments and administrative expenses would not be segregated. IF you have a plan where employer A contributions are available only for benefits to A's employees, you probably have a bunch of single employer plans paying into a single trust. In that case, if all funds are maintained in segregated accounts, the audit you describe could be done.

Schedule P exists to start the running of the statute of limitations; it only works by filing it with a timely filed 5500. If the Schedule P was filed with the original return, it started the running of the statute of limitations for that year. In that case, what is the point of filing Sched P with the amended return? If original return did not include a Sched P, I don't think there is any way to start statute of limitations by filing P with the amended return.

I do.

Filing a second "final" return in 2003 will probably not be too difficult, and probably not cause too much confusion at DOL. However, if your plan has more than 100 participants, you need to address the audit requirement. Maybe you can justify a position that the plan had zero participants after the 2002 final return. Also, you have to address reporting of the income received by participants, on 1099-R (assuming this is a pension plan).

Agree- for a welfare plan, a current employee who is not covered, and has elected not to be covered, should not be an "active" participant.

I agree-- yes to all three.

Kriso- I think you are splitting hairs on this. The sponsor can always select the investment options available to the participants, so you could argue that a plan could never be participant directed. Moving from one family of mutual funds to another does not make the plan any less participant directed. I would have prepared the 5500 without a schedule of reportable (5%) transactions.

A custodian to custodian transfer would not trigger reporting as a 5% transaction. However, if Fidelity and Manulife offer different investment vehicles (and they probably do), the disposition of the Fidelity vehicles and the acquisition of the Manulife vehicles would be reportable. Unless these are all participant directed investments....

My guess is tht most plans are looking at this after the fact, rather than maintaining a watch list. For most 401(k)'s, especially smaller ones, this is probably ok, since the plans tend to invest in plain vanilla mutual funds, etc.

As I understood it, the only way Sched P works is if it attached to a timely filed Form 5500, and including it with an amended return does not work. However, that's not what the instructions say, so I'll have to search for the source of that data.

ERISA requires the insurance company to provide the data to the plan administrator, but it requires the administrator to file a complete an accurate Schedule A, regardless of whether the insurance company provided the data. That means you have to try to get the data from the insirance company, and if you can't, you file A with the best data you have, estimate if you have to, and feel free to indicate if the insurance company is not cooperating. Regarding prior years, the technically correct answer would be to amend. Failing that, at least gather the data you need and be ready to prepare Schedule A's, because if the IRS/DOL ask for the data, you will not have much time to comply.

Earl: Assets held for investment is a requirement only if the plan is required to attach audited financial statements, which generally means a large plan. The schedule lists assets held by the whole plan, with no breakdown by individual account. Further, if the plan has participant loans, it is not necessary to disclose data that identifies individuals; rather, you can aggregate the loans and report them broadly.

I hate responding to messages like this, because there is always a hint that there is more to the story than what is said. Like, is this arrangement a MEWA? Your topic is "cafeteria", which has no filing requirement, so I assume we are talking about the welfare plan requirement. I'm guessing you have more than 100 participants. However, if we take the question at face value, only one 5500 would be filed for a multiple employer plan. The fact that it is funded hrough a cafeteia plan, or that some funds go to employes, and some go to insurance co., should not affect the filing requirement.

If you had disbursed the sick pay, it would have been includable on the employee's W-2, and your plan would have included it as compensation. The insurance company (or other 3rd party) disbursed sick pay on your behalf, I think, and issued the W-2 for compensation "earned" as your employee. I think both W-2's should count. This seems more clear in a single-employer setting, where the employer pays premiums to the 3rd party to cover the sick pay. In a multiemployer setting, the sick pay is bargained for, and it's harder to argue that the 3rd party is merely an agent for the employer, but it still seems like the sick pay is compensation earned as your employee.

My opinion, it should have filed a final 5500 in the year it started as a MTIA, but ended with only one plan participating. If that didn't happen, I would probably file a final in the current year, because you need some way to tell the DOL not to keep looking for you.

I know of no exemption from the SSA for Taft-Hartley plans. There is a difference in how you determine if a separation from service occurs, but all separated participants are reportable. Perhaps the prior year was NA because there were no participants who separated? Doesn't sound likely.

Maybe I'm missing something, but this arrangement does not seem unusual. If a multiemployer plan has Bankers Trust, for example, issue the monthly pension checks, why shouldn't Bankers Trust also issue the 1099-R's, and why would it not use it's own EIN on the 1099-R? I see this all the time, and I see the same thing happening on 1099-DIV's when a bank is the disbursement agent for the company issuing the dividend.