Will 5500 filing make a Church Plan subject to ERISA

[leighl]

I have a church plan that has elected not to be subject to ERISA. However, they have filed a 5500 for several years. If they want to continue to file in future years, are they automatically an ERISA plan? If so, and if they amend to be subject to ERISA, are the prior years when they filed 5500s considered operational failures?

[Kevin C]

A Church plan is not subject to ERISA unless it elects to be. The procedure for making the election is detailed in 1.410(d)-1©. It takes more than just filing a 5500 to make a Church plan subject to ERISA.

1.410(d)-1©(3) Manner of making election. The plan administrator may elect to have the provisions of the Code described in paragraph (a) of this section apply to the church plan as if it were not a church plan by attaching the statement described in subparagraph (5) of this paragraph to either (i) the annual return required under section 6058(a) (or an amended return) with respect to the plan which is filed for the first plan year for which the election is effective or (ii) a written request for a determination letter relating to the qualification of the plan under section 401(a), 403(a), or 405(a) of the Code and, if trusteed, the exempt status under section 501(a) of the Code of a trust constituting a part of the plan.

[david rigby]

Is this plan audited? If so, the auditor should have (might have?) opined on this in the past.

Be careful to verify your statement, "...has elected not to be subject to ERISA...". I've seen this before, where someone assumed "not elected" but a (very) old election later turned up.