Reportable Events: Failure To Make a Required Minimum Funding Payment
All of us have them – plans that are underfunded and PBGC-covered. Each and every one of these plans is subject to required quarterly contributions, and like it or not, most small plans don’t make required quarterly contributions. According to the PBGC, each of these missed required contributions is a reportable event.
29 CFR §4043.25 states that a reportable event occurs when “(1) A contribution required under sections 302 and 303 of ERISA or sections 412 and 430 of the Code is not made by the due date for the payment under ERISA section 303(j) or Code section 430(j), or ( 2) Any other contribution required as a condition of a funding waiver is not made when due.”
Luckily, the PBGC has created a couple of exemptions in order to ease the reporting burden on small plans as well as to limit the number of non-critical reportable event notifications that they receive.
For all small plans – those with 100 or fewer participants – no reportable event notice is required for the failure to make a required quarterly contribution. This exemption was previously only for plans with 25 or fewer participants. Understanding that most small plans don’t budget for quarterly contributions and instead pay in a single contribution whenever it is most convenient for them, the PBGC has eliminated a huge number of Reportable Event Notifications for plans that are well funded but ignore required quarterly contributions.
It is very important to note that this exemption does not apply to the failure to make a minimum required contribution, but only to the failure to make a required quarterly contribution.
All plans are exempt from filing a reportable event notice for the failure to make a required contribution if the required contribution is made within 30 days of the original contribution due date. If the required contribution is deposited before the due date of the post-event filing notice, no notice is required. So even though small plans are exempt from notifying the PBGC of the failure to make a required quarterly contribution, they are still required to notify the PBGC for the failure to make a minimum required contribution if that contribution is not made within 30 days of the original due date.
If a plan doesn’t meet either of these exemptions, then a Form 10 must be filed electronically with the PBGC within 30 days of the reportable event. There are two ways to prepare and submit the Form 10. The standard method, which is still valid, is to fill out the PDF version of the form, assemble all of the required attachments and email them to email@example.com. New with the recent redesign of the PBGC website is a web-based form using the new e-Filing Portal. In order to access the portal you will need to create a new account; your current MyPAA account will not allow you access to the portal. Once an account is created, data entry screens very similar to those used to create a premium filing are used to enter all of the required information for Form 10 relating to a missed required contribution.
Currently the PBGC is very active in following up for Form 10. If you don’t file the form timely, you can expect to be hearing from them. In general, the penalty for not filing the Form 10 or filing it late is capped at $100 times the number of plan participants. The penalty also accrues at different rates for different sized plans; all plans over 100 participants are penalized at $25 per day for the first 90 days late and $50 per day for each day thereafter. For small plans this is prorated based on the number of participants in the plan – if a plan has 25 participants, they pay 25/100 of the daily penalty. Rest assured, though, that the PBGC will consider the facts and circumstances of each case in order to ensure that the penalty matches the violation. If the PBGC finds reasonable cause for the violation, the penalty may be waived entirely.
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