Okay to use current form for earlier years?

[Peter Gulia]

An employer that maintains a one-participant retirement plan will file its Form 5500EZ reports for calendar plan years 2008 (on extension), 2007 (a slight amendment of a timely filed report), and 2006 (seeking delinquent-filer relief). For the 2007 and 2006 reports, is it okay to use the current forms? These will be handwritten, not electronic.

[Guest Sieve]

You can access prior IRS Forms on the IRS website. Click on Forms & Pubs, and then Previous Years.

[Bird]

Yeah, but the 5500 series forms on the website have the "for information purposes only, do no use for filing" watermark on them. I know you can order some by phone, but I'm not sure how far back. And I know you can use current forms instead of "really old forms that are not available" but I'm not sure where that cutoff might be; I'd think they would expect that you could dredge up a 2006 and 2007 form (I got a 2007 form by phone not too long ago and suspect 2006 is still available). They're probably available on a software vendor's system also.

[Peter Gulia]

Knowing that using the website forms is a processing no-no, I had used the IRS ordering system to get paper forms. The system presented no choice about which year's forms to order. Sieve and Bird, thanks for your kind help.

[Guest Sieve]

FWIW--and, as you may know--the DOL delinquent filer program permits using the current 5500 for earlier years (Section 3.02(b)(2)). Even though EZ filers are not eligible for DFVCP--although you indicate that you are seeking such releif for 2006. How so?--I would certainly take the DFVCP process as a strong indication that using the current form for prior 5000 filings, even EZ filings, would be acceptable.

If the employer was truly a 5500-EZ filer for 2006, a filing under DFVCP will be rejected, and you will receive a letter requesting some ungodly amount for filing late--although you probably will be successful getting it abated after-the-fact.

[mwyatt]

Just a thought, but someone in our office did bring up the question of just because you can file a 5500EZ, does that mean you have to (i.e., with that 2006 filing, couldn't you go in filing a 5500 rather than 5500EZ)?

[Guest Sieve]

EZ filers are permitted to file the Form 5500 if they so choose. However, it's not just the filing of an EZ that makes you ineligible for the delinquent filer program--it's the fact that a plan where no employees are participants (which means any plan where they only participants are (i) sole proprietor & spouse, (ii) sole shareholder & spouse, or (iii) partners & spouses.

Here is a quote summarizing the rule from IRS Notice 2002-23:

"The relief [from IRS penalties for delinquent Forms 5500] is available [for those who file under the DOL's delinquent filer program] only to the extent that a Form 5500 is required under Title I of ERISA. Therefore, for example, Form 5500–EZ filers and Form 5500 filers for plans without employees (as described in 29 CFR 2510.3–3(b) and ©) are not eligible for the relief in this notice. Because such plans are not subject to Title I of ERISA, they are ineligible to participate in the DFVC Program."