FAB 2009-02 and FAB 2010-01

[Guest Pennysaver]

If all of the assets of a 403(b) plan are eligible for the transition 5500 reporting relief under FAB 2009-02 (in other words, the assets are not treated as plan assets for reporting purposes)

AND

all of the participants in that 403(b) plan qualify under Q&A-5 of FAB 2010-01 (in other words, none of the participants are counted for reporting purposes)

THEN

the 403(b) plan essentially has zero reportable assets and zero reportable participants.

Does that mean it simply does not have to file a Form 5500 at all?

[Peter Gulia]

Shouldn't such a plan's administrator prefer to file an annual report (even with some zeros) to show that it met the ERISA requirement?

[Guest Pennysaver]

Shouldn't such a plan's administrator prefer to file an annual report (even with some zeros) to show that it met the ERISA requirement?

But that's my question. There aren't just going to be "some zeroes" - the entire annual report would be all zeroes. And is there truly an ERISA requirement to file an annual return when all assets and participants in the plan are exempted from the reporting requirement?

[30Rock]

We have had this issue come back and it is unclear. DOL needs to issue guidance. At a recent ASPPA webcast Bob Toth said no 5500 should be necessary. But again, plan sponsor should consult with their legal counsel.

[Peter Gulia]

Even if one could be confident that no report is required, a report might nonetheless be permitted. Shouldn't a plan fiduciary want to file something (even if the information reported does no more than identify the plan and show, by context, the reliance on the FAB relief) because a filing might trigger the running of a statute of limitations or a statute of repose, or might support an argument that the plan's administrator acted in good faith?