Late 5500 filing

[ERISA13]

We are trying to help a client with filing a late Form 5500 for the 2009 Plan Year. It's a calendar year plan and a Form 5558 was filed for 2009 to extend to October 15. Since the extension was filed we have found out that the plan was terminated back in 2008 and the final assets were distributed in May 2009. This made the Final 5500 due date 12-31-09. I was thinking we just needed to file under the Delinquet Filer Voluntary Correction Program until I read that the program was not available for one-participant plans.

This plan has an effective date of 1-01-07 and only has one participant but has filed the regular (not EZ) 5500 in 2007 & 2008. The plan is a member of an affiliated service group. The one-participant in the plan was the only shareholder and the company was disolved in 2008. My questions are:

Is this really a one-participant plan and the DFCVP is not an option for correcting?

Will the fact that the plan has filed a regular 5500 for 2007 & 2008 and not a 5500-EZ or SF cause any problems? And since the plan has filed the regular 5500 in the past, is that the form we should use for the Final 5500 for 2009?

Lastly, if DFCVP is not an option for correcting, what is the proper way to correct this?

Thanks for any guidance on this!!

[austin3515]

The DFVC is not available for the EZ's, which according to prior threads on the topic, has generally been a good thing, since you just request abatement from the penalty and often times they penalty is abated,

But lucky you, you filed the regular 5500, so you would be able to use the DFVC. Eligiblity is based on the type of form, not whether or not you could have chosen to file the EZ.

[WDIK]

Eligiblity is based on the type of form, not whether or not you could have chosen to file the EZ.

I disagree based on the following from the FAQs about The Delinquent Filer Voluntary Compliance Program found at http://www.dol.gov/ebsa/faqs/faq_dfvc.html.

Is participation under the DFVCP available to all Form 5500 Series filers?

No. The relief under the DFVCP is available only to the extent that a Form 5500 is required to be filed under Title I of ERISA. 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 to participate in the DFVCP because such plans are not subject to Title I of ERISA. Plan administrators may call 202.693.8360 if they have questions about whether the program applies to their filings.

[austin3515]

Honestly, I think I would go for it and see what happens...

But thanks for pointing that out. When you're wrong, you're wrong

[ERISA13]

Anyone think that filing the Final 5500 as an EZ with a letter asking for abatement of fees would be the way to go? This was always a one-participant plan but the regular 5500 was filed by the former TPA in previous years. The plan is a part of an affiliated service group but the assets were never over $1,000 for the plan.

Thanks!