ERISA 403(b) or not?

[Guest DianeC]

A 501©(3) organization has a 403(b)plan for their employees with only voluntary salary reduction contributions.However they signed an ERISA type plan document with the annuity carrier and they have been filing Form 5500. They never have made, nor do they intend to make Employer contributions as this is strictly a voluntary 403(b)plan. Questions: Does the fact that they signed a plan document and filed 5500s make them an ERISA plan?? If not how do they go about correcting this - i.e. filing a final 5500 with an explanation??

[Guest]

Good question. While a deferral only 403(B) plan is generally not subject to Title I of ERISA, it should therefore be exempt from filing the form 5500. On the other hand, the 5500 instructions state that a deferral-only plan file but answer limited questions. We've been filing based on the 5500 instructions. Any thoughts?

[Carol V. Calhoun]

Having a plan document would not make them an ERISA plan, unless the plan document called for employer involvement or other features inconsistent with meeting the ERISA exemption. We have had success in the past in merely filing a final Form 5500 with an explanation.

[Guest DianeC]

Originally posted by DianeC

A 501©(3) organization has a 403(b)plan for their employees with only voluntary salary reduction contributions.However they signed an ERISA type plan document with the annuity carrier and they have been filing Form 5500.  They never have made, nor do they intend to make Employer contributions as this is strictly a voluntary 403(b)plan.  Questions: Does the fact that they signed a plan document and filed 5500s make them an ERISA plan??  If not how do they go about correcting this - i.e. filing a final 5500 with an explanation??  

Carol, thanks for the reply. Also, it is my understanding that a 5500 filing is required ONLY for an ERISA 403(B)(1) or (7)and they are subject to the limited filing requirements. A salary deferral only 403(B)(1) or (7) comes under the section "Pension and Welfare Plans Excluded From Filing" if it meets the requirements of 29 CFR 2510.3-2(f).

[Carol V. Calhoun]

Yep, that's my understanding as well.