Who is liable for ERISA penalties?

[Guest ActuaryWannabe]

In the process of resigning from a nonresponsive client. For the last few plan years, the client was required to obtain an accountant's opinion because of the number of participants. However, they failed to do so. The DOL has sent correspondence to them relative to the missing accountant's opinion for at least one of the years, to which the client has not responded.

During the time that all this was going on, the company was sold to another company in an asset sale. The original corporation still exists but has no doubt been stripped of any value, by way of bonuses/compensation to the owner.

My question is, to what extent, if any, is the owner personally responsible for the penalties? The Plan Administrator is defined to be the employer, and the Plan Trustee is the owner. The penalty situation was known by the owner prior to the sale.

Thanks for any help!

A.W.

[Ron Snyder]

To the extent that the owner was a fidiciary of the plan, or a co-fiduciary of the plan and was aware of the compliance failures, he may incur personal liability for the failures.