DOL Advisory Opinion Letter says a 403(b) plan funded exclusively with

[Guest mwoods]

Is anyone aware,or can provide, a DOL Advisory Opinion Letter that states something to the effect that a 403(B) plan funded exclusively with annuity contracts is exempt from filing?

Please advise.

Thnak you

[Ellie Lowder]

DOL Reg. 2510.3-2 provides that an elective deferral only 403(B) plan sponsored by a 501©(3) non-governmental organization can avoid ERISA coverage (and 5500 filing requirements) with limited involvement/reasonable investment options, etc. This exemption from Title I applies to 403(B)(1) annuities and 403(B)(7) custodial accounts. If the plan is sponsored by any governmental group, the reg. wouldn't apply because those groups are exempt from Title I - and, so are churches/QCCOs unless the church elected to be covered.

[Guest PeterGulia]

Your inquirer may be thinking of a DoL Information Letter in which the DoL stated its view that an ERISA 403(B) plan's Form 5500 need not include plan financial information and therefore need not attached audited plan financial statements.

Since TIAA-CREF has excellent publications on Form 5500 reporting, your own publications division may have a copy of the DoL letter.

Also, although 403(B)(7) custodial accounts may not relate to TIAA-CREF's services, consider whether the employer needs a reminder that even if DoL Reg 2510.3-2(f) excuses a non-ERISA 403(B) program from the DoL filing requirement, it cannot excuse the IRC 6058 filing requirement, which applies to custodial accounts but not annuity contracts.

If you need advice about how to present this information, TIAA-CREF's counsel, Elaine Immerman, is one of the best in the business.

------------------

[Ellie Lowder]

Yep, bet that is what the questioner had in mind. The instructions to Form 5500 for 1999 provide some clarity on 5500 requirements for 403(B) ERISA plans by saying that plans offering either/or 403(B)(1) annuities and 403(B)(7) custodial accounts are required to complete "Part I and Part II, lines 1-5, and 8". Goes on to say that an independent audit is not required, nor are any schedules. This confirms the DOL Advisory letter (issued for prior years), and clarifies for us!