Reporting and Disclosure Under ERISA (Portfolio 361)

Tax Management Portfolio, No. 361-6th, Reporting and Disclosure Under ERISA, examines the reporting and disclosure requirements imposed by ERISA on administrators of employee benefit plans.

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Tax Management Portfolio, No. 361-6th, Reporting and Disclosure Under ERISA, examines the reporting and disclosure requirements imposed by ERISA on administrators of employee benefit plans. The Portfolio provides an overview of the types of plans subject to ERISA's reporting and disclosure requirements, as well as the statutory exclusions and exemptions under the Department of Labor Regulations. It examines the rules that require financial and other plan information to be reported to various agencies of the federal government and disclosed to plan participants and their beneficiaries, as well as the penalties that may be imposed for noncompliance.

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Michael G. Kushner, B.A., George Washington University (1974); J.D., University of Virginia School of Law (1977); LL.M. (Taxation), George Washington University (1982). Co-author, Employee Benefits Desk Encyclopedia (BNA Books, 1995); co-editor, ERISA Regulations (BNA Books). Member, New York, District of Columbia, Maryland and Virginia Bars. Adjunct faculty member, Georgetown University Certified Employee Benefits Specialist Program (1982–88); adjunct faculty member, The Dickinson College School of Law (1989–91). Chair, ABA Committee on Employee Welfare Benefit Plans (Real Property, Probate & Trusts Section (2007–2009); Vice Chair, ABA Committee on Executive Compensation and Deferred Compensation (2010); Member, ABA special task force on the valuation of life insurance products for tax purposes.


Detailed Analysis

I. Introduction

II. Plans Covered by ERISA's Reporting and Disclosure Requirements

A. Types of Plans

1. Pension Plans

2. Welfare Benefit Plans

3. Plans Without Employees

B. Statutory Exclusions

1. Government Plans

2. Church Plans

3. Plans Required by State Law

4. Foreign Plans

5. Unfunded Excess Benefit Plans

C. Exemption by DOL Regulations

1. Employer Practices and Arrangements

a. Payroll Practices

b. On-Premises Facilities

c. Holiday Gifts

d. Sales to Employees

e. Hiring Hall

f. Remembrance Funds

g. Strike Funds

h. Industry Advancement Programs

i. Unfunded Scholarship Programs

j. Group or Group-Type Insurance Programs

2. Severance Payments

3. Bonus Programs

4. Individual Retirement Accounts

5. Gratuitous Payments to Retirees

6. Tax-Sheltered Annuities

7. “Top-Hat” Plans

8. Plans Providing Day Care Centers

9. Dues-Financed Plans Maintained by Employee Organizations

10. Simplified Employee Pensions

a. Model SEPs

b. Non-Model SEPs

(1) General Rules

(2) Alternative Method of Compliance

11. Golden Parachute Arrangements

12. Funded Apprenticeship Plans

13. Discretionary Limited Reporting

D. Extensions Due to Disaster or Service in Combat Zone

III. Reporting Requirements

A. Filings with the EBSA and IRS

1. The Annual Report (Form 5500 Series)

a. Introduction

b. Who Must File the Annual Report

(1) Single Employer Plans

(2) Plans for Controlled Group of Corporations or Group of Trades or Businesses Under Common Control

(3) Multiemployer Plans

(4) Multiple-Employer, Collectively Bargained Plans

(5) Multiple-Employer Plans

(6) Group Insurance Arrangements

(7) Pension Plans

(8) Welfare Plans

c. Contents of Annual Report

(1) In General

(2) Schedule A (Insurance Information)

(3) Schedule B (Actuarial Information)

(4) Other Pension Schedules

(5) Financial Statement and Schedules

(6) Accountant's Audit and Report

(7) Statement of Plan Administrator

(8) Schedule SSA

(9) Notice of Change in Plan Status

2. Form 5310-A (Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan Assets or Liabilities)

3. Form 5498 (IRA Contribution Information)

4. Reporting Excess Deferrals and Contributions

5. Form 5330 (Return of Excise Taxes Related to Employee Benefit Plans)

6. Requirements for Small Plans

B. Filings with the PBGC

1. Introduction

2. PBGC Annual Premium Payment

3. Annual Report

4. Notice of Reportable Events

a. In General

b. Events for Which Post-Event Notice Is Required

c. Events for Which Pre-Event Notice Is Required

5. Notices Required for Termination

6. Notice of Adoption of Plan Amendment

7. Funding Notice

8. Other Information

C. Filings with the DOL

1. Plan Description and Summary Plan Description

2. Summary of Material Modifications

3. Plans Participating in Master Trusts

4. MEWA Annual Report

a. In General

b. Determining if an Entity is Established or Maintained Pursuant to a Collective Bargaining Agreement

(1) Employee Welfare Benefit Plan

(2) “Nexus” Test

(3) Bona Fide Collective Bargaining Agreement

(4) Exclusions

5. Union-Interested Trust Reports

D. Disaster Relief

1. In General

2. Other Employee Benefit Disaster Relief

a. Plan Funding and Waivers

b. HIPAA and COBRA Relief

c. Loans and Hardship Distributions

d. Legislative Relief

IV. Disclosure Requirements

A. Introduction

B. Summary Annual Report

C. Summary Plan Description

1. Procedural Requirements

a. In General

b. Procedure for Amending Plan

c. Adequate Disclosure of Plan Limitations

d. Assistance for Non-English Speaking Participants

e. Model SPD Language

2. Distribution of the SPD

3. Contents of the SPD

a. Plan Name

b. Name and Address of Plan Sponsor

c. Employer Identification Number/Plan Number

d. Type of Plan

e. Information Concerning Plan Administration

f. Eligibility Requirements

g. Cost-sharing Provisions of Group Health Plans

h. Pension Plans: Rules for Computing Service

i. Possibility for Loss of Benefits

j. Collective Bargaining Agreements

k. Joint and Survivor Benefits

l. Statement of ERISA Rights

m. Source of Contributions

n. Amendment and Termination

o. Funding Medium

p. Plan Year and Fiscal Year

q. Claims and Appeals Procedures

r. Certain Health Statutes

4. Treatment of Documents that Plan Sponsor Did Not Intend to Constitute an SPD

5. Special Rule for Merged Plans

D. Plan Documents and Records

E. Summary of Material Modifications

F. Notice of Eligibility for Rollover Treatment

G. Notice Required for Termination

H. Notice of Failure to Meet Minimum Funding Standards

I. Notice of Reduction in Rate of Future Benefit Accrual

1. When Notice Must Be Provided

2. Who Is Entitled to Notice

3. Timing for Providing Notice

4. Method of Providing Notice

5. Content of Notice

6. Failure to Satisfy Notice Requirements

J. Funding Notices

1. Participant Notice Under ERISA § 4011

2. Participant Notice Under ERISA § 101(f)

K. Notices Transmitted Using Electronic Technology

1. Using Electronic Media in Plan Administration

2. Treasury Regulations

3. Electronic Disclosure - EBSA Safe Harbor

4. Electronic Recordkeeping

L. Plan “Blackout Periods” and Notice to Participants or Beneficiaries Under Individual Account Plans

1. Prohibition on Trading by Directors, Officers During Plan Blackout Periods

2. Notice to Plan Participants of Blackout Period

3. Penalty for Failure to Provide Notice

M. Notice of Investment Options Under Participant Directed Individual Account Plans

1. Change in Investment Options

2. Default Investment Arrangements

N. USERRA Notice

O. Joint and Survivor Annuity Notices

P. Periodic Pension Benefit Statements

Q. Divestiture of Employer Securities

R. Prohibited Tax Shelter Transactions

S. Fees Paid by Plans

V. Penalties

A. Civil Enforcement

B. Criminal Penalties

C. Penalties for Specific Violations

1. Failure to Comply with Request for Information

2. Failure to Maintain Records or Furnish Certain Information

3. Failure to File an Annual Report

4. Failure to File Actuarial Report

5. Failure to File or Distribute Schedule SSA

6. Failure to File a Notice of Change in Plan Status

7. Failure to Provide Notice of Minimum Funding Shortfall to Participants

8. Failure to Provide Required Notices to the PBGC

9. Other

VI. Conclusion


Working Papers

Table of Worksheets

Worksheet 1 Summary Plan Description - 401(k) Plan

Worksheet 2 Summary Plan Description - Group Health Plan

Worksheet 3 PBGC Annual Premium Payment Package

Worksheet 4 DOL Summary Plan Description Regulations (29 CFR Part 2520)

Worksheet 5 PBGC Estimated Premium Payment Package

Worksheet 6 Sample Summary Annual Report for Defined Benefit Pension Plan

Worksheet 7 Sample Summary Annual Report for Defined Contribution (§ 401k) Plan

Worksheet 8 Sample Summary Annual Report for Health and Welfare Benefit Plan

Worksheet 9 DOL Model Forms Under Mental Health Parity Act

Worksheet 10 Table of PBGC Maximum Guaranteed Pension Benefits (Appendix B to 29 CFR Part 4011)

Worksheet 11 PBGC Forms for Reportable Events and Failure to Make Contributions (includes PBGC Forms 10, 10–Advance and 200)

Worksheet 12 PBGC Annual Financial and Actuarial Information Reporting Regulations

Worksheet 13 PBGC Reportable Events Regulations (29 CFR Part 4043)

Worksheet 14 Summary of ERISA Reporting and Disclosure Requirements




Treasury Regulations:

Department of Labor (DOL) Regulations:

Pension Benefit Guaranty Corporation (PBGC) Regulations:


Legislative History:

IRS Notices:

IRS Announcements:

Treasury Rulings and Procedures:

DOL Advisory Opinion Letters:

DOL Field Assistance Bulletins:

DOL Technical Releases:

PBGC Technical Updates: