5500 Form Reporting

When an employer discovers a Form 5500 was due after the filing deadline has passed, what should they do? It is relatively common for employers to find a missed Form 5500 reporting obligation, sometimes years down the road. While this discovery can come as a shock, the DOL has a program that enables employers to bring their filings up to date. 

Their Delinquent Filer Voluntary Compliance Program (DFVCP) encourages employers to bring plans into compliance with past filings by offering reduced penalty amounts. The DFVCP outlines penalties of $10/day past the filing deadline, with a maximum of $2,000/year and a penalty cap of $4,000 per plan, despite the number of years filed. This program offers significant relief from the regular DOL penalties. 

Don’t let late Form 5500 filing cost your business thousands in penalties.

2021 Penalty Amount 

ERISA §209(b)

Failure to furnish reports (e.g., pension benefit statements) to certain former participants and beneficiaries or maintain records.

$31 per affected participant and beneficiary

ERISA §502(c)(2)

Failure or refusal to properly file an annual report (Form 5500) required by ERISA §104; and Failure of a multiemployer plan to certify endangered or critical status under ERISA §305(b)(3)(C) treated as a failure to file an annual report.

Up to $2,233 per day

ERISA §502(c)(4)

Failure to notify participants under ERISA §10(j) of certain benefit restrictions and/or limitations arising under Internal Revenue Code §436;

Failure to furnish certain multiemployer plan financial and actuarial reports upon request under ERISA §101(k);

Failure to furnish an estimate of withdrawal liability upon request under ERISA §101(l); and Failure to furnish automatic contribution arrangement notice under ERISA §514(e)(3).

Up to $1,767 per day per affected participant

ERISA §502(c)(5)

Failure of a multiple employer welfare arrangement to file a report required by regulations issued under ERISA §101(g).

Up to $1,625 per day

ERISA §502(c)(6)

Failure to furnish information requested by the Secretary of Labor under ERISA §104(a)(6).

Up to $159 per day, not to exceed $1,594 per request

ERISA §502(c)(7)

Failure of a defined contribution plan to furnish a blackout notice under ERISA §101(i) or a notice of the right to divest employer securities under ERISA §101(m).

Up to $141 per day per affected participant

ERISA §502(c)(8)

Failure by a plan sponsor of a multiemployer plan in endangered status to adopt a funding improvement plan or a multiemployer plan in critical status to adopt a rehabilitation plan. The penalty also applies to a plan sponsor of an endangered status plan (other than a seriously endangered plan) that fails to meet its benchmark by the end of the funding improvement period.

Up to $1,402 per day

ERISA §502(c)(9)(A)

Failure by an employer to inform employees of the Children’s Health Insurance Program (CHIP) coverage opportunities under ERISA §701(f)(3)(B)(i)(l).

Up to $119 per day per affected employee

ERISA §502(c)(9)(B)

Failure by a plan administrator to timely provide to any State the information required to be disclosed regarding coverage coordination under ERISA §701(f)(3)(B)(ii).

Up to $119 per day per affected participant and beneficiary

ERISA §502(c)(10)(B)(i)

Failure by any plan sponsor of a group health plan, or any health insurance issuer offering health insurance coverage in connection with the plan, to meet the requirements of ERISA §§702(a)(1)(F), (b)(3), (c) or (d); or §701; or §702(b)(1) with respect to genetic information.

$119 per day during the non-compliance period

ERISA §502(c)(10)(C)(i)

The minimum penalty for de minimis failures to meet genetic information requirements not corrected prior to notice from the Secretary of Labor.

$2,970 minimum

ERISA §502(c)(10)(C)(ii)

The minimum penalty for failures to meet genetic information requirements that are not corrected prior to notice from the Secretary of Labor and are more than de minimis.

$17,824 minimum

ERISA §502(c)(10)(D)(iii)(ll) Cap on penalty for unintentional failures to meet genetic information requirements.

$594,129 maximum

ERISA §502(c)(12)

Failure of Cooperative and Small Employer Charity Act (CSEC) plan sponsor to establish or update a funding restoration plan.

Up to $109 per day

ERISA §502(m)

Defined benefit distribution prohibited by ERISA §206(e) due to an impermissible forfeiture following the withdrawal of a participant’s contributions.

The amount distributed but not more than $17,213 per distribution

ERISA §715

Failure by a group health plan to provide Summary of Benefits Coverage under Public Health Services Act §2715(f), as incorporated into ERISA §715 and 29 CFR 2590.715-2715(e).

Up to $1,176 per failure

Code Penalty Section – Description of Code Violations Subject to Penalty

Code §6652(e)

Failure to timely file annual report (Form 5500) under Code §6058.

$250 per day, up to $150,000

Code §6652(e)

Failure to timely file a notice of plan merger, spin-off or asset transfer (Form 5310-A) under Code §6058.

$250 per day, up to $150,000

Code §6652(d)(1)

Failure to timely file the registration statement for deferred vested benefits (Form 8955-SSA) under Code § 6057(a).

$10 per participant per day, up to $50,000

Code §6652(d)(2)

Failure to timely file notification of certain changes (Form 5500) in a plan’s information (name, plan administrator, plan termination, plan merger or spin-off) under Code § 6057(b).

$10 per day, up to $10,000

Code §6652(h)

Failure to timely provide a required withholding notice (Form W-4P) under Code § 3405(e)(10)(B).

$100 per failure, up to $50,000 per year

src: DOL.gov