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ERISA or Non-ERISA 403(b) Plan

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A non-profit 501(c)(3) entity (not a church) has a 403(b) plan. They tell us they have only allowed employee deferrals to the plan since 2005. In 2004 and before, the plan allowed for employer match. The plan does not allow hardships. It does not allow loans. 2004 was the last year they filed a form 5500.

in 2006 they got a letter from the IRS regarding the 2005 Form 5500, and they must have told the IRS that they were exempt from filing because they now only allow deferrals.

Is that possible that this could this be a non-ERISA plan, or should they have continued filing 5500's after 2004 because the plan had already become an ERISA plan due to the match?

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