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We have been concerned about how we are going to be able to comply with the new 2009 Form 5500 filing requirements for our 403(b) plan clients. Relief has come!
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The Department of Labor issued Field Assistance Bulletin 2009-02 this week. It allows us to exclude individual Annuity contracts and custodial accounts as part of the plan assets for purposes of the Form 5500 filing requirement if the following conditions are met:

  • The contract was issued prior to 1/1/2009.
  • The employer discontinued making contributions to the contract prior to 1/1/2009.
  • All rights and benefits under the contract are legally enforceable against the insurer or custodian by the individual Owner of the contract without any involvement by the employer.
  • The individual owner is fully Vested in the contract or account.

So plans that elected to terminate and/or freeze prior to 1/1/2009 will have simplified filings. Plans that continue to accept contributions will be required to report only those accounts which actively receive contributions.

The good news doesn’t stop there! Current and former Employees who have no other accounts besides these excludible contracts are not counted as Participants who are covered by the plan. This will prevent us from having to track down statements, and will reduce participant counts – maybe even enough to avoid the audit requirement!

For plans that will be subject to the audit requirements in 2009, the DOL will not reject a Form 5500 filing on the basis of a “qualified,” “adverse” or “disclaimed” opinion if the accountant indicates that the sole reason for the opinion is because the pre-2009 contracts were not included in prior financial statements or previous audits.

We welcome this relief from the DOL, and will keep our clients informed about any future changes or updates to the 2009 filing requirements.