Since the 2008 Form 5500 Instructions, the DOL has told us that plans having a short plan year beginning in 2009 and ending no later than May 31, 2009 could either (1) file their 2009 form 5500 on paper (using 2008 forms), or (2) file electronically within 90 days after the EFAST2 system became available (December 31). Unfortunately, confusion has resulted on both fronts. The good news is that the DOL is trying to make it right.

What is clear?

If you tried to file a 2009 return on paper, and your filing is postmarked after December 31, 2009, the DOL will reject it. Do not attempt, at this point, to file a paper return. The only exception to this is that you can still file on paper for plan years which began in 2008. The DOL will continue to accept 2008 returns (including late or amended returns) on paper until October 15, 2010.

We strongly recommend that if you intend to file a 2008 return on paper, you make certain the DOL receives the return on or before that October 15 deadline. Do not rely on the postmark date.

What’s the problem?

Several filers have contacted us saying that they followed the DOL’s instructions and submitted a short year 2009 return on or before December 31, 2009, and the DOL rejected it anyway. To make things worse, the rejection was accompanied by a letter saying that they had 45 days to refile electronically, or the return would be late (rather than the 90-day automatic extension from the instructions).

How is the DOL making it right?

If you filed a short-year 2009 Form 5500, and the postmark was on or before December 31, 2009, and the DOL returned the Form to you, you should call the EFAST helpline at (866) GO-EFAST. You will need to speak to a live human being. To do that, you will likely need to go through two levels of telephone menus, and then you will hear an option to speak to a representative. (It probably doesn’t matter what options you select on the menus. We selected option 2, followed by option 3, followed by option 3 again to speak to a representative.)

The DOL has a list of the filings they believe to be improperly rejected returns, but it is up to you to call them to determine if your return is on the list. If you believe your return was left off the list incorrectly, and can fax to them the postmark, or other evidence of timely submission, they will work with you. The representative will give you instructions on what to do.

If you are not entitled to file on paper (i.e., the DOL correctly rejected the return), the deadline to refile a rejected short-year 2009 return (with a plan year end on or before May 31, 2009) is the latest of: (1) 45 days after the date of the rejection letter, (2) March 31, 2010, which is 90 days after the EFAST2 started, or (3) the due date of the return with any other available extension (such as an extension of the employer’s tax return). Generally, the latest date, and hence the deadline for electronic filing, will be March 31, 2010.

If you have a 2009 short plan year which ends after May 31, 2009, you are not entitled to the March 31 extension. However, you have the benefit of any other available extensions, such as the 2½-month extension available with Form 5558.

Form 5500/EFAST2 – 35 cities, March – May
Because of the introduction of EFAST2, it is predicted that Form 5500 amendments may dominate 2010 filings. SunGard’s Form 5500/EFAST2 workshop can show you how to file automatically and help avoid filing the same Form 5500 twice. This workshop can help you prepare for this transitional year.