A recent article related comments Scott Albert, an official at the national office of the Employee Benefit Security Administration of the Department of Labor (DOL), made at the ASPPA national conference regarding short 2009 plan year filing procedures. According to the article, Mr. Albert indicated that any plan with a short 2009 plan year (regardless of its filing deadline) could use the 2008 Form 5500 (and schedules) and file the paper forms (“paper option") with the DOL in Lawrence, Kansas as long as the plan sponsor filed the Form 5500 no later than December 31, 2009. This statement would expand the rule provided for in the 2008 Form 5500 instructions and in the EFAST2 FAQs (see DOL’s website). In the instructions and the FAQs, as well as in recent web seminars, the DOL limits the paper option to plans with a short 2009 plan year that has a filing deadline before January 1, 2010 (e.g., a plan which terminates before June 1, 2009).
We received a number of emails inquiring whether SunGard intended to modify its technical update on short 2009 plan year filings. We followed up with the DOL to determine whether the DOL intended to modify its instructions or FAQs. Mr. Albert indicated that the DOL would not be changing its position set out in the instructions and FAQs (i.e., only short 2009 plan year filings with a filing deadline before 2010 are eligible for the paper option). However, Mr. Albert indicated that a plan sponsor maintaining a plan with a short 2009 plan year that has a filing deadline after December 31, 2009 and which has a difficult situation (e.g., terminating plan) could contact the EFAST Contact Center (1-866 GO-EFAST) and explain its circumstances. The helpdesk will connect the plan sponsor with the DOL and it could provide permission to file a paper version of the Form 5500 with the DOL.1
The 2008 Form 5500 instructions and the EFAST2 FAQs provide an alternative to the paper option for a plan with a short 2009 plan year that has a filing deadline before 2010. A plan with a short 2009 plan year that has a filing deadline before 2010 and which prefers to file electronically under EFAST2 is eligible for an automatic 90-day extension. The DOL measures the 90-day extension from the date electronic filing under EFAST2 becomes available. DOL expects electronic filing to be available on January 1, 2010. Therefore, those plans taking advantage of this extension would have until April 1, 2010 to file electronically.
Example: Corporation X terminated its plan and made a final distribution of plan assets on April 20, 2009. Therefore, X’s Form 5500 filing deadline would be November 30, 2009. X could use the 2008 forms and file with the DOL by its normal deadline. Alternatively, X could take advantage of the automatic extension and file electronically no later than April 1, 2010.
Mr. Albert confirmed to us that although the DOL might permit plans with a short 2009 plan year which have a filing deadline after December 31, 2009 to use the paper option, it has no intention of extending the 90 day automatic extension to such plans.
Advanced Pension Conference. We will discuss EFAST2, Schedule C changes and other important and timely topics in our Advanced Pension Conference (APC). The APC is scheduled for February 17-19 in Orlando, Florida. For more information, go to our web site.
1 Mr. Albert’s statement is consistent with a statement made by other DOL officials.
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