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CCH® PENSION AND BENEFITS — 01/23/09

EBSA issues guidance on filing of registration statement for controlled groups by administrator of top-hat plan

EBSA has issued an advisory opinion providing guidance to an administrator of a top-hat plan seeking to file a registration statement under ERISA Reg. §2520.104-23 for a single plan of a controlled group. Top-hat plans can use an alternative method of complying with the reporting and disclosure requirements by filing a registration statement with the Labor Department and providing any requested plan documents. EBSA has clarified that a plan covering a “controlled group of corporations” or a “group of trades or businesses under common control” can file a single registration statement, satisfying the alternative method of compliance, for participating employers.

The DOL indicates that there are circumstances under which companies in a controlled group will be treated as maintaining “separate plans” and circumstances under which a “single plan” is found to exist with respect to the controlled group as a whole. If a “single plan” is found to exist, according to the DOL, it would be required to file only a single registration statement for the plan rather than filing separate statements for each participating employer. Although ERISA Reg. §2520.104-23 does not specifically address how an employer is to be identified in the registration statement filed for a single plan of a controlled group of corporations or a group of trades or businesses under common control, EBSA offers guidance for how this could be done. One such option, for example, includes the identification of each employer maintaining the plan on the required statement.

EBSA also clarifies that the addition or removal of individual participating employers from the group would not necessitate the filing of an updated registration statement as long as the employer identified in the original registration statement continues to be an employer of employees covered by the plan and continues to be an authorized person from whom the DOL could request documents regarding the plan.

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