Form 11-k & Form 5500 Due Date

[Guest ircreader]

Our plan does not permit participants to buy employer stock with their deferrals to the 401k plan. It does give participants the option of buying employer stock with the employer match. We did not file a Form 11-k and are assuming that we are not affected by the requirement to file a Form 5500 within 180 days of the fiscal year end of the plan. Does anybody know if we are making an incorrect assumption?

[E as in ERISA]

You need to consult with a securities attorney. My understanding of the rules is consistent with yours -- that an 11-K is generally not required if deferrals are not invested in employer stock. But the issue is significant enough that you should consult legal counsel.

[Guest ircreader]

I believe I may have found the answer to my own question and will share this in case someone else has the same question. 17 CFR 240.15d-21 states that a plan may follow the procedure it outlines to meet the requirement of filing a financial statement with the Form 11-K. It states that a plan may file its annual report (Form 5500) within 180 days of the fiscal year end of the plan to meet the financial statement requirement of Form 11-K. So if we are exempt from filing the Form 11-K, the financial statement requirement would not apply, therefore the earlier due date for the annual return would not apply. Of course, I would encourage anyone with a similar question to read the instructions to Form 11-K posted on the SEC website and 17 CFR 240.15d-21 to which the instructions refer.

[E as in ERISA]

The 5500 itself is never due 180 days after year end. It is the 11-K that is due within 180 days.

[WDIK]

Katherine:

What if the Form 5500 is being filed in lieu of Form 11-K as ircreader intimated? (I'm not familiar enough with Form 11-K to know how/if the substitution would apply). Does the Form 11-K deadline then apply?

[E as in ERISA]

The 11-K is an SEC filing that includes an audit report and financial statements of the plan. It is due to the SEC 180 days after year end. The Form 5500 is not required to be attached to it. But apparently you can substitute the Form 5500 for the financial statements that would otherwise be attached, so that you don't have to prepare both. (I believe that substitution of the 5500 is a very rare practice; I have heard of it but I have never seen it).

Use of the Form 5500 for that purpose would not satisfy your IRS/DOL filing requirements for the Form. You would have to make a separate filing with the IRS/DOL within the 7 month period.