Extended IRS Forms 5500 Due Date/Filing an Incorrect IRS Form 5500/Revised Participant Statement Deadline

Extended IRS Forms 5500 Due Date

Please remember that today is the due date for IRS Forms 5500 for the plan year ended December 31, 2006, that were extended by IRS Form 5558 until October 15, 2007.

Filing an Incorrect IRS Form 5500

It Really Can be a Crime to File an Incorrect Form 5500 discusses the significant ramifications of filing an incorrect IRS Form 5500:

"Congress answered this question with 28 U.S.C. 1027, and the 9th Circuit Court of Appeals provides a pretty unequivacal explanation of how this Code section applies to Form 5500.

28 U.S.C. 1027 states:

Whoever, in any document required by title I of the Employee Retirement Income Security Act of 1974 (as amended from time to time) to be published, or kept as part of the records of any employee welfare benefit plan or employee pension benefit plan, or certified to the administrator of any such plan, makes any false statement or representation of fact, knowing it to be false, or knowingly conceals, covers up, or fails to disclose any fact the disclosure of which is required by such title or is necessary to verify, explain, clarify or check for accuracy and completeness any report required by such title to be published or any information required by such title to be certified, shall be fined under this title, or imprisoned not more than five years, or both."

The blog post also discusses two court cases cited by the court in their opinion:

"See United States v. Martorano, 767 F.2d 63, 66 (3d Cir. 1985) (finding a violation of § 1027 where the defendant filed a Form 5500 that failed to disclose a prohibited transaction, and the defendant failed to disclose to his attorney the relevant information needed to accurately complete the form); United States v. Tolkow, 532 F.2d 853, 857 (2d Cir. 1976) (finding a § 1027 violation where the defendant signed and filed a false Form 5500, and the defendant failed to disclose party-in-interest loans to the accountant preparing the attached financial reports)."

Here are some recent posts discussing IRS Forms 5500:

DOL News: Informational Copies of 2007 IRS Form 5500/DFVCP Interactive Calculator/ERISA Fiduciary Advisor
Behind in your IRS Forms 5500 filings?
Extending the IRS Form 5500

In addition to the filing requirements, the extended IRS Form 5500 due date has new added meaning as a result of the issuance of Friday's participant statement guidance: Additional Participant Statement Guidance.

Revised Participant Statement Deadline

Earlier this year we discussed the Concerns with Benefit Statement Good Faith Guidance created by DOL Field Assistance Bulletin 2006-03 Periodic Pension Benefit Statements - PPA (Dec 20, 2006) (DOL FAB 2006-03).The DOL addressed those concerns by providing publishing Field Assistance Bulletin 2007-03 - Periodic Pension Benefit Statements for Non-Participant Directed Individual Account Plans (DOL FAB 2007-03). Here are some of the highlights:

• The DOL published DOL FAB 2006-03, which indicated the following:
  
  "the furnishing of pension benefit statement information not later than 45 days following the end of the relevant period (calendar quarter or calendar year) will constitute good faith compliance with the requirement to automatically furnish pension benefit statements by individual account plans."
  
  
• The DOL acknowledged that plans that "do not permit participants and beneficiaries to direct the investment of assets in their individual accounts" may not be able to comply within the 45-day time period.
  
  
• They cited the time it takes to complete the business tax return and determine the contributions and the time it takes to obtain "third-party valuations for those assets that do not have a readily ascertainable value" as reasons.
  
  
• DOL FAB 2007-03 provides guidance that supersedes DOL FAB 2006-03 "as it relates to the dates for furnishing pension benefit statements to participants and beneficiaries of individual account plans."
  
  
• The new guidance provides that plan administrators of non-participant directed plans will be treated as acting in good faith compliance if statements are furnished by the IRS Form 5500 due date, including extensions:
  
  "Plan administrators of individual account plans that do not provide for participant direction of investments will be treated as acting in good faith compliance with a reasonable interpretation of section 105(a)(1)(A)(ii) of ERISA when statements are furnished to participants and beneficiaries on or before the date on which the Form 5500 Annual Return/Report is filed by the plan (but in no event later than the date, including extensions, on which the Annual Return/Report is required to be filed by the plan) for the plan year to which the statement relates."