As the Form 5500 filing deadline for most calendar year plans is quickly approaching, please note that the Form 5500 instructions have changed for 2013 to incorporate Form M-1 filing information. A Form M-1 is required to be filed by most Multiple Employer Welfare Arrangements (MEWAs). In general terms, a MEWA is a plan that offers benefits to employees of employers that are not within the same controlled group or under common control as set for the in Internal Revenue Code section 414(b) or (c). One common exception from the Form M-1 filing requirement for a MEWA is if the MEWA provides coverage to the employees of two or more trades or business that share a common control interest of at least 25 percent.
Significantly, even small plans that constitute MEWAs and that are required to file a Form M-1 must file a Form 5500 now (the small plan exemption for such plans no longer applies).
Regardless of whether your plan constitutes a MEWA, the 2013 Form 5500 Instructions require that each health and welfare benefit plan answer certain questions about the Form M-1. In that regard, please see page 18 of the 2013 Instructions.
Page 18 sets forth how to comply with the new Form M-1 Compliance Information section, which specifically requires an attachment to the Form 5500 with the Form M-1 information. A portion of that section states as follows:
“Form M-1 Compliance Information (to be provided by all welfare plans). All welfare plans must provide an attachment that is clearly labeled at the top of the attachment “Form M-1 Compliance Information.” The attachment must state:
- If the plan provides welfare benefits, whether the plan was subject to the Form M-1 filing requirements during the plan year;
- If the plan was subject to the Form M-1 filing requirements, whether the plan is currently in compliance with the Form M-1 filing requirements;
- Provide the Receipt Confirmation Code for the 2013 Form M-1 annual report. If the plan was not required to file the 2013 Form M-1 annual report, enter the Receipt Confirmation Code for the most recent Form M-1 that was required to be filed under the Form M-1 filing requirements. (Failure to enter a valid Receipt Confirmation Code will subject the Form 5500 filing to rejection as incomplete.)” Emphasis added.
A section goes on to state ramifications for failure to comply:
“A welfare benefit plan’s failure to attach a statement indicating whether it is subject to the Form M-1 filing requirements, and if so, whether they are currently in compliance with such requirements and failure to provide a valid Receipt Confirmation Code, will subject the Form 5500 filing to rejection as incomplete and civil penalties may be assessed pursuant to ERISA Section 502(c)(2) and 29 CFR 2560.502c-2.” Id.
If you should have any questions regarding your plan’s status, or the Form M-1/Form 5500 filing requirements, please contact attorney Elizabeth H. Latchana at 517.377.0826 or elatchana@fraserlawfirm.com.