2009 Fom 5500 - employee count in error

[John Feldt ERPA CPC QPA]

A 403(b) plan showed under 100 participants on its 2009 Form 5500-SF, but should have showed 145 eligible participants (the employer did not report everyone to their recordkeeper).

For the 2009 Form 5500:

a) Should they wait to file an amended 2009 Form 5500 when the 2009 accountant's opinion is ready? or

b) Should they file an amended full 5500 now with an attachment stating that the audit is being prepared and will be provided when it is complete (and explaining what happened)? or

c) Wait for the audit to get done and file under DFVC and pay the $1,500 fee to possibly avoid penalties that a complete return was not filed timely for 2009?

For the 2010 Form 5500:

a) Should they file on October 17, 2011 using the full participant count but with a short attachment explaining what happened and explaining the audit will be sent as soon as it's available? or

b) not file the 5500 until the audit is ready and perhaps file using DFVC (if cheaper than the regular late filing penalty)?

Any recommendations?

[Lori H]

I'd be curious to know an answer to this myself.

[K2retire]

I had a similar situation and the ERISA attorney we consulted advised waiting until the audit was available.