No Form 5500 filed since inception (2004)

[Trisports]

We took on a client - 403(b) plan - that never filed Form 5500. The plan was in existence since 2004.

We are filing the late returns under the DFVC program.  Since 5500-SF is not available for years prior to 2009, is it ok to file Form 5500 from 2004-2008 and Form 5500-SF for 2009-2019 or should we use the same Form for all open years?  

Thank you.

 

 

 

[C. B. Zeller]

https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/dfvcp.pdf

Quote

Q7. Which version of the Form 5500 should be filed?

Generally, the filer should file using the correct year form that is delinquent. However, there are exceptions. The Department has available on its website at www.dol.gov/agencies/ebsa an online tool to help delinquent filers determine which versions of Forms 5500/5500-SF and schedules to use. Filers simply enter very limited information as prompted (such as the beginning date of the plan year for which the late filings are made) and the tool identifies the correct versions of the Forms 5500/5500-SF to use. FAQ 4 of the Frequently Asked Questions on the EFAST2 Electronic Filing System (available at www.dol.gov/sites/default/files/ebsa/about-ebsa/ouractivities/resource-center/faqs/efast2-form-5500-processing.pdf) explains how to submit a delinquent Form 5500 electronically to EFAST2 for plan years prior to 2009.

 

[JOH]

Just a thought, is the 403(b) subject to EIRSA or is it a non-EIRSA Plan? If it's Non-ERISA than 5500 filing is not required, maybe that's why they haven't filed?

[Griswold]

https://www.askebsa.dol.gov/FormSelector/

[Ellie Lowder]

I agree with JOH - many 403(b) plans are exempt from ERISA.  Be sure to check that!

[Patricia Neal Jensen]

Agree with Ellie (of course!) and JOH.  No mention of ERISA or Non-ERISA status.

 

[Patricia Neal Jensen]

DOL Non-ERISA.docx

 Thought this might help...

DOL Advisory Details:

Private sector (nongovernmental) 403(b) plans established by 501(c)(3) tax-exempt organizations that meet certain requirements may be exempt from ERISA.  It is important to note that these plans are NOT automatically non-ERISA plans.

 

Based on the Department of Labor (DOL) Safe Harbor, a private sector 403(b) plan will not be subject to Title I of ERISA if, among other requirements:

1.   employees participate in the 403(b) on a voluntary basis;

2.   all rights under the annuity contract or custodial account are enforceable solely by the employee or beneficiary;

3.   there are no company contributions and the employer maintains very limited involvement with the 403(b) plan;

4.   and the employer receives no compensation, other than a reasonable amount to cover expenses related to the employer’s duties under the contracts.  This limited involvement encompasses activities such as depositing contributions, allowing vendors to explain their products, and providing investment choices. 

 

Plan sponsors who wish to maintain non-ERISA plans may not make decisions concerning the processing of distributions, approve hardship distributions or loan requests, review qualified domestic relations order (QDRO) requests received by the plan, authorize plan-to-plan transfers or otherwise make any discretionary determinations regarding plan administration.  The DOL has determined that handling these functions internally will make the plan subject to ERISA.  Field Assistance Bulletin 2010-01 explains that while an annuity provider or other responsible third party selected by a person other than the employer can make these types of administrative decisions, if a Third Party Administrator (TPA) is retained by the employer to provide these services to the plan, the plan will no longer be a non-ERISA plan.

 

11/12/2020

 

 

[Trisports]

Thank you all.   The plan is subject to ERISA. The plan sponsor (501c entity)  made matching contributions contributions since inception.

The plan was never formally adopted and no ACP testing was done. We are basically handling all the compliance issues since inception - VCP for plan doc & other issues and DFVC for late Form 5500s.