QUESTION: Our company has a cafeteria plan that permits participants to pay for certain benefits using pre-tax dollars. Do we have to file Form 5500 for our cafeteria plan?
ANSWER: The short answer is that cafeteria plans are not required to file Form 5500. Although Code § 6039D requires employers to file annual returns for cafeteria plans, the IRS suspended that requirement in 2002.
Nevertheless, the DOL’s Form 5500 requirement continues to apply to many employee welfare benefit plans that are governed by ERISA. A cafeteria plan is merely a funding vehicle for its component benefit plans and is not itself an ERISA employee welfare benefit plan, but component plans that are ERISA plans (e.g., medical plans or health FSAs) must file Form 5500s unless exceptions apply. For example, DOL regulations exempt certain welfare benefit plans with fewer than 100 covered participants from the Form 5500 requirement if the plans are unfunded or if they pay benefits through insurance. For the component benefit plans under your cafeteria plan that are required to file Form 5500, Form 5500 filings must be made using EFAST2, the DOL’s electronic filing system.
For more information, see EBIA’s Cafeteria Plans manual at Sections XXXIV.C (“Cafeteria Plan Reporting Requirements”) and XXXIV.D (“Health FSA Reporting Requirements”). See also EBIA’s ERISA Compliance manual at Section XXII (“Annual Form 5500 Reporting to the DOL”).
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