Multiple employer plans, -i.e., a plan maintained by two or more employers that don’t have sufficient overlapping ownership to be considered a single employer for purposes of the Internal Revenue Code (Code) or other laws-can be attractive options for some plan sponsors to minimize their individual costs for offering qualified deferred compensation or other employee benefit plans. Sponsors, fiduciaries and participating employers involved with these arrangements need to keep in mind, however, that these arrangements also often trigger special legal rules, exposures and operational challenges under the Internal Revenue Code (Code), the Employee Retirement Income Security Act (ERISA) and other laws.

One of these issues can be the scope of protection that a determination letter issued to a plan sponsor of a multiple employer plan. To help clarify some common questions about the treatment of multiple employer plans in its determination letter program, the Internal Revenue Service (IRS) on March 30, 2015 published a new set of “Frequently Asked Questions” (FAQs) that provide some insights about the IRS’ current position on some of these issues, subject to the understanding that IRS does not consider its answers to frequently asked questions as appropriate for citation as legal authority. Subject to this disclaimer, the new FAQ states:

Does each adopting employer have to come in for an individual determination letter?

No, it’s not necessary for all adopting employers to apply for a determination letter on Form 5300, Application for Determination for Employee Benefit Plan. The sponsors of the plan have two choices:

1. Submit just for a determination letter on the plan; or
2. Submit for letter on the plan and a letter for each employer maintaining the plan who wants an individual letter. See Revenue Procedure 2015-6, section 10.

Are the adopting employers required to give Notice to Interested Parties if they are not coming in for individual letters?

Yes, each employer must provide notice to interested parties. The rule permitting one consolidated determination letter for a multiple employer plan does not change the “Notice to Interested Parties” requirement.

Do the employers maintaining the plan have reliance on the determination letter issued to the plan?

Yes. Revenue Procedure 2015-6, section 10, states: “An employer maintaining a multiple employer plan can rely on a favorable determination letter issued for the plan except with respect to the requirements of §§ 401(a)(4), 401(a)(26), 401(l), 410(b) and 414(s), and, if the employer maintains or has ever maintained another plan, §§ 415 and 416.”

Is a volume submitter plan’s submission cycle affected if it changes to a multiple-employer plan?

No, conversion of a volume submitter (VS) plan to a multiple-employer plan does not take the plan off of the 6-year remedial amendment cycle. A VS plan may be designed to be used as either a single-employer or as a multiple-employer plan. Conversion occurs when the adopting employer decides to allow an unrelated employer to also adopt its VS plan. Even if the employer had to modify the VS plan to allow it to be used as a multiple-employer plan, this would not remove the employer from the 6-year cycle because a multiple employer plan is not an impermissible plan type for a VS plan.

What form is used to request a determination letter for a VS plan that was modified to be a multiple-employer plan?

An employer requesting a determination letter for a VS plan that was modified for use as a multiple-employer plan should file Form 5300 (not Form 5307). The Form 5300 has to be used because the Form 5307 does not accommodate filings by multiple- employer plans. If the employer has not modified the VS plan at all, for example, because the VS plan allows for use as either a single-employer or as a multiple-employer plan, the employer has reliance on the VS advisory letter issued to the document provider and should not file for its own determination letter.

 For  Advice, Representation, Training & Other Resources

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law, Ms. Stamer is a practicing attorney Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, author, pubic speaker,management policy advocate and thought leader with more than 25 years’ experience advising government contractors and other employers, their management, benefit plans and plan fiduciaries, vendors and service providers and others about OFCCP, EEOC, and other employment discrimination, government contracting compliance, and other workforce and operational performance, compliance, risk management, compensation, and benefits matters. As a part of this involvement, Ms. Stamer throughout her career specifically has advised and represented a broad range of employers across the U.S., their employee benefit plans and plan fiduciaries, insurers, health care providers and others about the implications of DOMA and other rules relating to rights and expectations of LBGT community members and others in federally protected classes under Federal and state employment, tax, discrimination, employee benefits, health care and other laws.

In addition to her extensive client work Ms. Stamer also is a widely published author, management policy advocate and thought leader, and management policy advocate on these and other workforce and related matters who shares her experience and leadership in a wide range of contexts.  A current or former author and advisory board member of HR.com, Insurance Thought Leadership, SHRM, BNA and several other the prominent publications, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, former President of the Richardson Development Center Board of Directors, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, An American College of Employee Benefit Counsel, American Bar Association (ABA) and State Bar of Texas Fellow, Martindale Hubble Premier AV Rated (the highest), Ms. Stamer publishes and speaks extensively on these and other staffing and human resources, compensation and benefits, technology, health care, privacy, public policy, and other operations and risk management concerns.  Her publications and insights appear in the ABA and other professional publications, HR.com, SHRM, Insurance Thought Leadership, Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile www.cynthiastamer.com or by registering to participate in the distribution of these and other updates on our HR & Employee Benefits Update here including:

• OSHA Rules Requires New Construction Industry Close Space Safeguards 
• 2016 & 2017 Health Plan Budgets, Workplans Should Anticipate Expected Changes To SBCs
• $1.4M FLSA Back Pay Award Demonstrates Worker Misclassification Risks
• National Infant Immunization Week Great Time To Review Your Family’s Immunizations
• Discrimination Rules Create Risks For Employer Reliance On Injunction Of FMLA Rule On Same-Sex Partners’ Marital Status
• Obama Executive Order’s Prohibition Of Government Contractor Sexual Orientation & Gender Identity Discrimination Creates Challenges For All US Employers
• Congress Passes Joint Resolution Overturning NLRB “Quickie Election Rule”
• IRS Changes Plan Correction Procedures
• Texas Employers Top Target For EEOC Charges
• ACA Prohibits Employer Paying Individual Health Premiums For Employees, IRS Says Again
• New Excepted Benefits Final Rule May Allow Some Employers Limited Opportunity To Offer Individually Insured Wraparound Coverage
• Stamer, Others Discuss Fiduciary Challenges Arising From Health Plan Vendor Data Breaches On 4/2
• Health Plans, Sponsoring Employers & Others Urged To Act Immediately In Response To Premera, Anthem Blue Cross Breaches 

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