Consequences and/or Remedies for Late or Missing Form 5500s

posted on

Form 5500 is due seven months after the plan year has ended. In order to be granted an extension, the Employer/Plan Sponsor has to send the IRS a Form 5558 for each plan subject to Form 5500 obligations. The Form 5558 needs to be postmarked by the original due date or it will be rejected.

Please review our recent Form 5500 Compliance Buzz article with information on who is required to file, filing deadlines, and how to file an extension.

Failure to file Form 5500 or late filing of Form 5500s can be costly for employers as daily penalties are assessed for late or missing filings.

What should an employer do if they never file a Form 5500 or fail to file by the deadline?

First and foremost, if you have not yet passed your deadline, file for an extension. Please review our recent Form 5500 Compliance Buzz article for information on how to do so.

If the deadline has already passed, employers should consider their risk tolerance, the number of plans they have not filed and the potential penalties to determine what the best course of action is for them.

Employers have three options available to them:

  1.        Do not file
  2.        File late
  3.        File late with Voluntary Compliance Program
Do Not File

Employers can opt to not file and hope that no one questions them if they are audited. There is a potential consequence of $300/day for each plan (per plan/ per plan year) that did not get filed or get filed on time. Penalties cap at $30,000 per year. Keep in mind that the Department of Labor has the authority to impose a $2,194 penalty per day for failure or refusal to file a Form 5500.

File Late

Employers can opt to file late and hope that no one notices. There is a potential consequence of $50/day for each plan (per plan/per plan year) that is filed late.  There is no penalty cap in this situation.

After an extension is granted, failure to file the Form 5500 by the extension deadline will result in a $50 per day penalty assessment back to the original Form 5500 deadline. For example, if you file Form 5558 and request an extension for your calendar year plan until 10/15/2019 – but you do not file your Form 5500 until 10/20/2019 – the $50 per day penalty assessment will apply back to the initial 7/31/2019 deadline date, not just the 10/15/2019 extension date. The Department of Labor has the authority to assess a penalty of up to $2,194 per day.

File Late with Voluntary Compliance Program

Employers can opt to file late under the Delinquent Filers Voluntary Compliance Program (DFVCP).There is late fee of $10/day for each plan (per plan per plan year) that is filed late. Penalties are capped at $2,000 per large plan/$750 per small plan. This is the penalty if an employer has a single plan year that is delinquent or the delinquent Form 5500s are filed at separate times.  The penalty is assessed per each ERISA plan that is delinquent. The maximum penalty for employers with multiple plans,  that file more than 1 delinquent plan year per plan number filing at the same time, is $4,000 per plan for large plans and $1,500 for small plans.

Form 5500 and Delinquent Filing Assistance

Employee Benefits Corporation can assist employers with the preparation of their delinquent Form 5500s as part of our Compliance Services offerings. Employers will pay the DFVCP penalties directly to the DOL online as part of the process.

The Bottom Line

We can help educate employers on the risk factors associated with each approach and assist, if contracted to do so, in the preparation of the Form 5500s. Please contact sales@ebcflex.com for more information.

Categories: Benefits in General, Compliance, Health Care in General | Tags: IRS , Form 5500 , Form 5558 , DFVCP , Delinquent Filers , Penalties | Return