Form 5500 (Retirement Plans)



Relevance of Plan Size on Filing

All retirement plans that are subject to ERISA are required to file a Form 5500, regardless of plan size. The plan size does, however, affect what schedules and reports must be filed with the Form 5500.

Plan size is defined as follows:

Large Plan: a retirement plan that covers 100 or more participants on the first day of the plan year. A person is “covered” if he or she is eligible to make elective deferrals to the plan.

Small Plan: a retirement plan that covers fewer than 100 participants on the first day of the plan year.

Whether the filer is a large plan or a small plan determines many of the required schedules and attachments that must accompany the Form 5500.  Two major examples appear below:

Required Electronic Filing of Form 5500

All Form 5500 filings (except Form 5500-EZ filings for one-participant plans) must be filed electronically with the Department of Labor, using the EFAST2 system. Generally stated, this means:

For general information regarding the electronic filing requirements, see the DOL’s ”FAQs on EFAST2 Electronic Filing System”. You can also visit the DOL website.

Schedules Which May be Required

Below is a list of the various schedules that may need to be included as part of a Form 5500 filing. The type of plan involved generally determines which schedules are required. Please be sure to check with your Form 5500 preparer or legal counsel to confirm which schedules may need to be attached to your Form 5500 filling:

Schedule C is NOT required for payments made by the employer for plan-related expenses. Schedule C is required only when payments are made from the plan itself.

Related Forms Which May be Required

In addition to the above schedules, the forms listed below are related to the Form 5500 series and may or may not be required to be filed, depending upon your circumstances (here again, please consult with your Form 5500 preparer and/or legal counsel to confirm which forms may apply to you):

Correction Program for Late Filings

If a plan administrator fails to make a timely Form 5500 filing (other than a Form 5500-EZ for a one-participant plan), the Plan Administrator should file the delinquent return as soon as possible using the DOL Delinquent Filer Voluntary Correction Program (“DFVCP”).

The DOL has posted Frequently Asked Questions which provide details about the DFVCP.

Note that it is only possible to correct late or missing Form 5500 filings before the failure is noticed by the DOL – for example, upon audit – and the plan sponsor is notified in writing.

When Late Form 5500 Filings are Corrected Using DFVCP: If one or more Form 5500 returns (other than a Form 5500-EZ for a one-participant plan) are filed using the DFVCP before the DOL notifies the Plan Administrator in writing of the missing Form 5500 filing, the only DOL fees that will be applied will be the fees specified under the DFVCP program.

The fee under the DFVCP is generally $10 per day late (with a cap ranging from $750 to $2,000 per late filing — $4,000 for certain large plans). This amount is significantly less expensive than the penalties which could be imposed if the DOL notifies the plan administrator of a late Form 5500 filing before it is corrected under DFVCP.

Although the DOL program specifically applies to DOL penalties, the IRS has taken the position that it will not pursue its own late filing penalties if the DFVCP program is used, provide that certain conditions are met. These conditions include a separate filing with the IRS on Form 8955-SSA to report any participants who terminated employment during the plan year with vested benefits that had not been distributed before the end of the plan year.

When the DOL Notifies the Plan Administrator of the Late Form 5500 Filing: If the Plan Administrator is notified in writing by the DOL of a failure to file a timely Form 5500 before the failure is corrected by filing under the DFVCP, the DOL penalty for late filing can run up to $2,400 per day (for 2023, this amount is subject to cost-of-living increases), with no maximum, and the plan administrator cannot use the DFVCP to reduce the fee.

Avoiding Late Form 5500 Filings. To help avoid late Form 5500 filings, it is important to:

Special Rules for Form 5500-EZ filings

Because most Form 5500 filings are filed via EFAST2, most notifications of late filing originate from the DOL.  However, Form 5500-EZ filings (which are filed for one-participant plans with assets that exceed $250,000) are filed with the IRS using a paper form and are not eligible for DFVCP or electronic filing with the DOL. This is because the plans are not subject to Title I of ERISA.

The IRS released guidance in 2015 that establishes a permanent penalty relief program for Form 5500-EZ filers. The IRS penalty relief program allows late Form 5500-EZ filings to be made with the IRS, provided that the plan administrator has not already received a late filing notice from the IRS in which a penalty has been assessed.