Third Party signing 5500

[dmb]

Would it be legal for a third party to sign the 5500 based on information provided if the employer is not available to sign forms and file them on a timely basis??? If not, what would be result of such an event?? Thanks.

[david rigby]

Instructions to the 2000 Form 5500 do not imply a third party signature. See page 6 of the instructions:

Signature and Date

The plan administrator must sign and date a Form 5500 filed for a pension or a welfare plan under ERISA sections 104 and/or 4065. Either the plan administrator or the employer may sign and date a Form 5500 filed for a pension plan under Code section 6058. Generally, a Form 5500 filed for a pension plan is filed under both ERISA section 104 and Code section 6058. The employer must sign and date a Form 5500 filed for a fringe benefit plan under Code section 6039D. When a joint employer-union board of trustees or committee is the plan sponsor or plan administrator, at least one employer representative and one union representative must sign and date the Form 5500. A representative authorized to sign on behalf of the DFE must sign the Form 5500 submitted for the DFE.

[Medusa]

In a past life as a TPA, we did sign the occasional 5500, knowing full well that we shouldn't. This occurred in cases where the form was completed at the last minute, for whatever reason, and then the plan sponsor ended up being out of town on the day it needed to be signed.

FWIW, there were never any repercussions. We always had the plan sponsor sign an amended return as soon as possible, then filed that to supercede the return that we signed.

[Kristina]

A third party is not authorized to sign the 5500. Even though a few forms may have been filed in the past without adverse results, it does not mean that filing such a form under EFAST would produce the same results. Also, because the first filing is incomplete in that appropriate signors have not signed, late filing penalties could be assessed.

I would caution any TPA about signing on behalf of their clients. The DOL seems to have a bee in their bonnet about "bad" TPAs. Putting yourself in their sights is not a good idea.

[Guest Emiliano]

I believe the DOL and the IRS accept the signatures of agents. For example, as non-corporal entities, corporations can only act through agents. An officer of a corporation, as an agent, may sign the Form 5500 on behalf of the corporation.

[Kristina]

An officer of a corporation MUST sign for the corporation if for no other reason than there is no place on the corporation to put the pen. (hee hee)

However, a third party is not mentioned in the instructions as an acceptable signor. An agent with the power to sign on behalf of the corporation would be acceptable, I am sure. However, few TPA's are given that power by their clients and wisely so. I don't know of many people that would accept the responsibility of signing for the Plan Administrator, if the Plan Administrator is an individual.

[Guest IRA SPECIALIST]

With the exception of the schedule "P" which is signed by the custodian/trustee as fiduciary- I agree, a third party should not sign the 5500 series return