The following is a statementfrom Craig P. Hoffman, General Counseland Director of Regulatory Affairs of The American Society ofPension Professionals & Actuaries to the U.S. Department ofLabor and the Internal Revenue Servicerequesting clarification and transitional relieffor filling of Forms 5500 and 8955-SSA for multiple employer plans(MEPs) obligated to report under both the Employee RetirementIncome Security Act and the Internal Revenue Code.“Our members tell us that over the last10 years multiple employer plans have become increasingly popular.Plan sponsors have been attracted to these arrangements for manyreasons, not the least of which is the goal of loweringadministrative costs that would otherwise be passed on toparticipants.Employee benefit plans adopted byunrelated employers have been part of the law since the enactmentof the Employee Retirement Income Security Act (ERISA).The Internal Revenue Code (IRC) contains specific rulesthat apply to these plans for purposes of the tax qualificationrequirements. No similar rules apply under Title I of ERISA.To be an employee benefit plan, however, the plan must beestablished or maintained by an employer, an employee organization,or both.On May 25, 2012, DOL issued twoadvisory opinions that have been read to mean that many of today’sMEPs may not qualify as a single plan under Title I of ERISA.Instead, the employers jointly sponsoring the MEP would be treatedas each sponsoring a separate plan and as a result, each would beobligated to file its own individual Form 5500.Unfortunately, nothing in the Form 5500instructions has ever indicated that a MEP, for purposes of filinga single Form 5500, must meet additional requirements beyond thefact that the sponsoring organizations were not part of the samecontrolled group. Additionally, it would appear that, for purposesof the reporting provisions of the IRC, MEPs should continue tofile a single Form 5500 covering all the employers jointlysponsoring the plan. To date, no guidance has been issued by eitherthe Department or the IRS advising plan sponsors on how to resolvethe inconsistent rules that apply to the singular reporting form(i.e., Form 5500) mandated by both agencies as the vehicle forsatisfying a plan sponsor’s statutory reporting obligation.This inconsistency between Title I andthe IRC puts plan sponsors in an impossible circumstance with noguidance from either the DOL or the IRS. As might be expected, thelack of guidance on how to deal with this inconsistency has causeda great deal of consternation. Many plan sponsors participating inMEPs have been relying on the guidance in Revenue Procedure 2001-21and view it as governmental approval of these arrangements. Theabsence of any indication in the Form 5500 instructions of a“commonality” requirement has led many plan sponsors to the goodfaith belief that this approach had been sanctioned by bothagencies. Even today, there still is no mention in the latestiteration of the Form 5500 instructions of a “commonality”requirement that must be satisfied in order for a MEP to file asingle Form 5500 for the entire arrangement.ASPPA recommends that the Departmentand IRS jointly provide guidance that clarifies and resolves theapparent inconsistent reporting obligations under Title I of ERISAand the IRC for plan sponsors participating in MEPs. ASPPA furtherrecommends that the IRS affirm through formal guidance that asingle Form 8955-SSA should be filed under IRC §6057 by the planadministrator for any plan subject to IRC §413(c).Until clarified, transitional reliefshould be provided that would deem a plan sponsor participating ina MEP to have satisfied its reporting obligations under Title I ofERISA and the IRC if a Form 5500 has been filed for the MEP as asingle plan. The relief should be made available for any plan yearthat begins on or before formal coordinated guidance is issued bythe Department and IRS. Affected plan sponsors should also be giventhe option to file individually prior to this deadline.”