Plan qualifying for non-ERISA, but executed an ERISA document

Just curious if you had ever encountered this. Non-Profit plan that otherwise would qualify for non-ERISA status, utilized (unintentionally, apparently) an ERISA 403(b) document. Has never filed 5500 forms. Obviously can use DFVCP program, so costs are not onerous.

I see no option. By executing an ERISA document, it seems to me that they have elected ERISA status, and they can't say it is "non-ERISA" just because they would otherwise qualify for non-ERISA status. Any other opinions?

Belgarath, I think what you're saying is that there are no employer contributions, no employer involvement in loans, hardship determinations, or investments, i.e., no substantive authority conferred on the employer that would cause the plan to be subject to ERISA, but the document contains a provision that says the plan is governed by ERISA.  I think the plan is covered by ERISA in that case, because the 403(b) legal document adopted by the employer chooses ERISA as the governing law.

Thanks Luke. 

15 hours ago, Luke Bailey said:

Belgarath, I think what you're saying is that there are no employer contributions, no employer involvement in loans, hardship determinations, or investments, i.e., no substantive authority conferred on the employer that would cause the plan to be subject to ERISA, but the document contains a provision that says the plan is governed by ERISA.  I think the plan is covered by ERISA in that case, because the 403(b) legal document adopted by the employer chooses ERISA as the governing law.

Luke, I have a question for you about your reply.  If an employer is exempt from ERISA but adopts ERISA guidelines, does this automatically make it an ERISA group going forward?

Oh no, leevena. I assumed the plan is for a 501(c)(3), aka "nonprofit."

4 hours ago, Luke Bailey said:

Oh no, leevena. I assumed the plan is for a 501(c)(3), aka "nonprofit."

Ok, thanks so much for the clarification. 

Luke - yes, your assumption was correct.