Certain employee benefit plans subject to ERISA are requried to file an annual report with the federal government. The Form 5500 and its related schedules satisfy that requirement.
Who is Required to File the Form 5500?
Every group health and pension plan that is subject to ERISA is required to file a Form 5500, with the following exceptions:
- Welfare plans with less than 100 participants which are unfunded, insured, or a combination of unfunded and insured.
- Certain fringe benefit plans including group legal services, educational assistance programs, and adoption assistance plans.
- Church and governmental plans (since they are not subject to ERISA)
- A Section 125 Cafeteria Plan is not subject to ERISA. Thus, one is not required to file a Form 5500. However, the qualified benefits under the cafeteria plan (such as health FSA, medical plan, etc.) may be subject to ERISA and Form 5500 filing.
When is the Form 5500 Due?
Plans must submit the Form 5500 and related schedules by the last day of the 7th month following the end of the plan year. For a calendar year plan, the deadline would be July 31st. A 2-and-a-half month extension may be filed on Form 5558.
The Form may be submitted electronically through the online ERISA Filing Acceptance System (EFAST) or a hard copy may be mailed to the Employee Benefits Security Administration (EBSA). Plans will be required to file electronically for plan years beginning January 1, 2009.
FAQs
Our retirement plan has less than 100 participants. Does that mean we do not have to file a Form 5500?
All qualified retirement plans must file the Form 5500 regardless of the number of participants. The small plan exception for less than 100 participants applies to welfare plans, not pension plans.
What if a plan is required to file a Form 5500 and has not done so in several years?
Failure to submit a Form 5500 could result in the plan administrator being assessed a fine up to $1,100 per day for each day the filing is late. Additionally, a willful failure to comply could result in a criminal penalty of $100,000, ten years in prison, or both. However, relief is available under the Department of Labor's Delinquent Filer Voluntary Compliance (DFVC) Program for plans that voluntarily comply before being notified of the deficiency by the DOL.
Under the DOL's DFVC Program, the penalties are reduced to $10 per day with a maximum limit of $750 for a small plan and $2,000 for a large plan. If the plan is delinquent on multiple years' filings, the small plan limit is $1,500 and the large plan limit is $4,000.
To comply, the plan must submit a completed Form 5500 with appropriate schedules to the Employee Benefits Security Administration (EBSA). Additionally, a copy of the Form 5500 (without the Schedules) and payment of the penalty must be submitted to the DFVC Program.
Additional information on the DFVC Program is available on the DOL website.
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