The Pension Benefit Guaranty Corporation is waiving certain penalties and extending certain deadlines in response to the major disaster declared by the President of the United States on account of Hurricane Claudette beginning July 15, 2003, in Texas. The PBGC is taking this action under its authority in section 4002(i) of ERISA, which was added by the Victims of Terrorism Tax Relief Act of 2001, Pub. L. No. 107-134, 115 Stat. 2427.
Persons Entitled to Relief
This Technical Update provides relief relating to PBGC deadlines as described below to Designated Persons. A "Designated Person" is any person responsible for meeting a PBGC deadline (for example, a plan administrator or contributing sponsor) that (1) is located in a disaster area for which the IRS has provided relief under AUS-03-15, July 23, 2003, in connection with filing extensions for Form 5500 series returns, or (2) cannot reasonably obtain information or other assistance needed to meet the deadline from a service provider, bank, or other person whose operations are directly affected by Hurricane Claudette.
In AUS-03-15, July 23, 2003, the IRS provided relief in connection with filing extensions for Form 5500 series returns as a result of Hurricane Claudette in the following Texas counties: Bee, Brazoria, Calhoun, Galveston, Goliad, Jackson, Matagorda, Refugio, and Victoria.
If additional areas are added in connection with those filing extensions, any person responsible for meeting a PBGC deadline that is located in those additional areas will also be a Designated Person. This Technical Update refers to an extension of a Form 5500 deadline relating to AUS-03-15, July 23, 2003, as a "Form 5500 Disaster Extension" and to the resulting extended deadline as a "Form 5500 Disaster Extension Date."
This Technical Update does not cover every situation in which PBGC disaster relief may be warranted. For example:
- This Technical Update does not capture every person that might experience difficulty in meeting a PBGC deadline for reasons relating to Hurricane Claudette.
- This Technical Update does not grant specific disaster relief for all filings. For example, it does not provide relief for certain filings that involve particularly important or time-sensitive information where there may be a high risk of substantial harm to participants or the PBGC insurance program, e.g., notices of large missed contributions under section 302(f) of ERISA (Form 200), advance notices of reportable events under ERISA section 4043, and annual financial and actuarial information reports from certain controlled groups under ERISA section 4010.
Those persons affected by Hurricane Claudette beginning July 15, 2003, in Texas, who need relief from the PBGC that is not covered by this Technical Update should contact the PBGC as soon as reasonably possible. The PBGC will work with them in ensuring that they receive appropriate relief. To request case-by-case relief, contact Diane Morstein at the PBGC by -
- calling 1-800-736-2444, extension 4136, or 202-229-4136 (for TTY and TDD, call 800-877-8339 and request connection to 202-229-4136);
- sending an email to firstname.lastname@example.org; or
- writing to Diane Morstein, Pension Benefit Guaranty Corporation, Suite 610, 1200 K Street, NW, Washington, DC 20005-4026, Re: Claudette-TX Disaster Relief Technical Update 03-15.
Claiming Disaster Relief
A person claiming disaster relief described in this Technical Update for a filing made with the PBGC should print or type the words "Claudette-TX" at the top of the filing. (On Form 1 or Form 1-EZ, also check the "disaster relief" box at the top of the form.) Similarly, if a person receives an inquiry or bill from the PBGC that appears not to take disaster relief into account, the inquiry or bill should be returned to the PBGC with the same wording written at the top. (The PBGC may, for example, generate such an inquiry or bill because it has not yet been alerted to the fact that the filer claims disaster relief.)
If the plan administrator of a plan is a Designated Person, the PBGC will, for purposes of assessing any late payment or late information penalty, treat as timely any premium filing required to be made for the plan on or after July 15, 2003, and before October 15, 2003, if the filing is made by October 15, 2003. Thus, for any such filing, the PBGC will waive the applicable penalty, but not the applicable interest charge.
|Example 1: Plan A's plan administrator is a Designated Person. Plan A's plan year begins on October 1. The due date for Plan A's 2002 Form 1 (or Form 1-EZ), along with the related premium payment, is July 15, 2003. The PBGC will, for penalty purposes, treat Plan A's Form 1 (or Form 1 EZ) filing as timely if it is made by October 15, 2003.|
|Example 2: Plan B's plan administrator is a Designated Person. Plan B's plan year begins on June 1. Plan B, a large plan, is required to make the flat rate premium filing that is due early in the plan year if the plan is a large plan (the "Form 1-ES filing") by July 31, 2003. The PBGC will, for penalty purposes, treat Plan B's Form 1-ES filing as timely if it is made by October 15, 2003.|
Single-Employer Plan Terminations
Standard terminations. If the plan administrator of a plan that is terminating in a standard termination is a Designated Person, any of the following plan termination deadlines for the plan that falls on or after July 15, 2003 and before October 15, 2003, is extended to October 15, 2003:
- The deadline for filing the standard termination notice (Form 500) (29 CFR Â§ 4041.25(a)). (Note that this automatically extends the deadline for providing notices of plan benefits to participants and beneficiaries (29 CFR Â§ 4041.24(a)) because that deadline is the date when the standard termination notice is filed.)
- The deadline for completing the distribution of plan assets (29 CFR Â§ 4041.28(a)).
- The deadline for filing the post-distribution certification (Form 501) without penalty (29 CFR Â§ 4041.29(b)). (Note that this automatically extends the deadline for filing missing participant information and certifications without penalty and for paying missing participants' designated benefits to the PBGC without interest (29 CFR Â§ 4050.6(b)(2)).)
Distress terminations. If the plan administrator of a plan that is terminating in a distress termination is a Designated Person and the deadline for filing the distress termination notice (Form 601) (29 CFR Â§ 4041.45(a)) falls on or after July 15, 2003 and before October 15, 2003, that deadline is extended to October 15, 2003. (Plan administrators of plans in distress terminations for which the PBGC has issued a distribution notice should contact the PBGC for case-by-case relief. See Case-by-Case Relief above.)
If the plan administrator of a plan is a Designated Person, any deadline for providing a Participant Notice that falls on or after July 15, 2003 and before October 15, 2003, is extended to October 15, 2003.
If the plan has a Form 5500 Disaster Extension for a plan year, the deadline for providing a Participant Notice for the following plan year is automatically extended to two months after the Form 5500 Disaster Extension Date.
Reportable Events Notices
If a Designated Person is responsible for filing a reportable event post-event notice (29 CFR Part 4043, Subparts A and B) for which the deadline falls on or after July 15, 2003 and before October 15, 2003, that person's deadline for filing the notice is extended to October 15, 2003.
In certain cases, the PBGC's regulation on post-event notices of reportable events extends the reporting deadline until 30 days after a plan's Form 5500 due date. (See 29 CFR Â§Â§ 4043.23(d)(2), .29(d)(2), .30(d)(2), .31(d)(2), and .34(d)(4).) If such a 30-day extension applies to a Form 5500 for which there is a Form 5500 Disaster Extension, the 30-day extension period in the PBGC's regulation automatically will begin to run on the Form 5500 Disaster Extension Date.
In the case of notices required in advance of the effective date of a reportable event (29 CFR Part 4043, Subparts A and C), the PBGC will grant relief where appropriate on a case-by-case basis. See Case-by-Case Relief above.
Annual Employer Reporting
The PBGC's regulation on Annual Financial and Actuarial Information Reporting (29 CFR Part 4010) requires annual financial and actuarial information reporting in certain cases by contributing sponsors (and their controlled group members) maintaining plans with large underfunding or certain missed contributions or funding waivers. The PBGC will grant relief where appropriate on a case-by-case basis for these reports. See Case-by-Case Relief above.
The regulation permits the filing of certain actuarial information by an alternative due date, which is 15 days after a plan's Form 5500 due date, if certain requirements are met (29 CFR Â§ 4010.10(b)). If such an alternative due date is based on a Form 5500 for which there is a Form 5500 Disaster Extension, the 15-day period in the PBGC's regulation will automatically be measured from the Form 5500 Disaster Extension Date.
Requests for Reconsideration or Appeals
The deadline for requesting review of a PBGC determination under the PBGC's regulation on Rules for Administrative Review of Agency Decisions (29 CFR Part 4003) is generally 45 days (for an appeal) or 30 days (for a request for reconsideration) after the date of the determination. If a Designated Person is aggrieved by a PBGC determination, and the deadline for filing an appeal or a request for reconsideration of the determination falls on or after July 15, 2003 and before October 15, 2003, that person's deadline for filing the appeal or request for reconsideration is extended to October 15, 2003.
Multiemployer Plan Deadlines
Multiemployer premium deadlines. The disaster relief relating to premium deadlines (discussed under Premiums above) also applies to multiemployer plans.
Other multiemployer deadlines. Under the PBGC's regulations governing multiemployer plans, various persons (e.g., the plan sponsor) are subject to deadlines for making filings with the PBGC, issuing notices to persons other than the PBGC, and taking other actions. If the person responsible for meeting the deadline is a Designated Person, and the deadline falls on or after July 15, 2003 and before October 15, 2003, the PBGC will neither assess a penalty under ERISA section 4302 nor take any other enforcement action with respect to any failure to comply with the deadline during the period ending on October 15, 2003.
The PBGC recognizes that persons other than the PBGC may have rights to enforce some of these deadlines. The PBGC expects these persons to act reasonably - fully taking into account the effects of Hurricane Claudette - in deciding whether and to what extent to exercise these rights.
The PBGC will grant other relief where appropriate on a case-by-case basis for deadlines relating to multiemployer plans. See Case-by-case Relief above.