80/120 if didn't file?

[Guest tintree73]

Quick question (and I tried to search if this had been covered - because I imagined it had, but could not find it - so here goes):

We have an all insured LTD plan (established in 1998) and we never filed a Form 5500 for it because we were always under 100 participants (separate plan document, SPD, etc. numbered 504).

On January 1, 2003 (first day of plan year) we went over the 100 mark to 104 participants.

Question: How does the 80/120 rule work with this?

Can we file the same form as last year because we are not over 120 (which was no filing at all) or do we have to enter the DFVC program starting with the 2003 filing and file on time for 2004?

I seem to remember under the pre-1999 forms we could not file - but I am no expert and my be wayyyyy off base.

Sorry if this is a repeat - but I'm not sure where to go.

[WDIK]

It is my interpretation that the under 100 participant rule exempting certain welfare is separate and unrelated from from the 80/120 particiant rule. The 2003 filing should have been completed based on the participant count at 1/1/03.

(I assume that you have double and triple checked the participant count.)

[Guest tintree73]

Thanks for responding! Yes, unfortunately, we have checked, double checked, triple checked, tried to be creative, etc. Thanks again!

[BeckyMiller]

It is my understanding and if you look at the regulation, you will see why this is my understanding, that this rule can only be applied if there was a filing. Thus, for welfare plans that did not file until they hit 100 participants, the 80 to 120 rule provides no relief in that first year.

See ERISA reg. 2520.103-1(d), it specifically refers to the same time of report "that was filed" for the prior year.