403(b) plan with 125 participants, all of whom are exempt per FAB 2009-02

[Santo Gold]

403(b) plan had allowed for both EE and ER contributions. In 2007, the plan was frozen. No new participants entered and now new contributions can be deposited.

I have the asset information for 2009. As of 1/1/09 125 participants had balances. As of 12/31/09 117 had balances.

Per Field Assistance Bulletin 2009‐02, individual contracts or custodial accounts that meet all of the following requirements do not have to be reported as plan assets (or in the participant count) on Form 5500:

1 The contract or custodial account was issued to a current or former employee prior to January 1, 2009;

2 The employer has no obligation to make any contributions (including salary deferrals) to the contract or custodial account after

December 31, 2008;

3 The contract or custodial account is legally enforceable against the insurer or custodian by the participant alone, without any

employer involvement; and

4 The employee is fully vested in the entire contract or custodial account.

Items 1 and 2 are obviously met. #4 is true also. #3 I am almost certain of.

So, if all 125 contracts met this exemption, then I have zero participants to report on the 5500. Would you agree?

Also, if that is true, would I still file a 5500, showing zeroes or would I not have to file a 5500?

Thanks

[SheilaD]

403(b) plan had allowed for both EE and ER contributions. In 2007, the plan was frozen. No new participants entered and now new contributions can be deposited.

I have the asset information for 2009. As of 1/1/09 125 participants had balances. As of 12/31/09 117 had balances.

Per Field Assistance Bulletin 2009‐02, individual contracts or custodial accounts that meet all of the following requirements do not have to be reported as plan assets (or in the participant count) on Form 5500:

1 The contract or custodial account was issued to a current or former employee prior to January 1, 2009;

2 The employer has no obligation to make any contributions (including salary deferrals) to the contract or custodial account after

December 31, 2008;

3 The contract or custodial account is legally enforceable against the insurer or custodian by the participant alone, without any

employer involvement; and

4 The employee is fully vested in the entire contract or custodial account.

Items 1 and 2 are obviously met. #4 is true also. #3 I am almost certain of.

So, if all 125 contracts met this exemption, then I have zero participants to report on the 5500. Would you agree?

Also, if that is true, would I still file a 5500, showing zeroes or would I not have to file a 5500?

Thanks

I have an almost identical situation and am proceeding witha 5500 showing zero's. I haven't done the form yet so I don't know if it will generate an error code on EFAST2