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  • BC Network
    Wednesday, January 31, 2018

    Bryan Cave is proud to present the third version of our in-house counsel’s guide to data privacy and security. The guide provides an overview of laws relevant to a variety of data matters topics, statistics that illustrate data privacy and security issues, and a breakdown of these data-related issues. It covers a range of privacy and security issues that apply in the HR and employee benefits areas, including HIPAA compliance and enforcement.

    You may download a copy of the 2018 guide by clicking here.

    Thursday, January 18, 2018

    The Internal Revenue Service (“IRS”) has described its recent changes to its Voluntary Correction Program (“VCP”) user fees as “simplification.”  This simplification is achieved by significantly changing the way user fees are determined and by eliminating alternative and reduced fees that were previously available.   At first blush, this simplification appears to result in a general reduction in user fees, however, in certain circumstances, the changes will actually result in significantly higher fees.   If you are the person responsible for issuing or requesting checks for your plan’s VCP application(s), it is important to note the differences from the past fee structure so that you will know what your plan is in for (good or bad) the next time a VCP application is necessary.

    In case you are not familiar with the VCP, the IRS created the program under its Employee Plans Compliance Resolution System, to allow tax-favored retirement plans not currently under examination to correct certain failures that would otherwise result in the loss of tax-favored status.  If a plan sponsor elects to submit an application under the program, the fee that must be paid with each application is called a “user fee.”  This user fee has always been subject to change, but never before has the user fee structure undergone such an extreme makeover from one year to another.

    On the surface, the biggest change to the VCP user fee structure is that for applications submitted prior to January 2, 2018, the user fee was based on the number of plan participants, and for applications submitted on and after January 2, 2018, the user fee is based on the plan’s assets.  The current user fee structure is as follows:

    Plan AssetsUser Fee
    $501,000 - $10,000,000$3,000
    $10,000,001 or more$3,500

    Previously, the applicable user fee ranged from a low of $500 for plans with 20 or fewer participants to a high of $15,000 for plans with more than 10,000 participants.  As a result, capping user fees at $3,500 under the new fee structure results in a huge break for the largest plans since the prior applicable user fee was $15,000.  However, a plan with 51 participants and $10,000,001 in assets would have previously paid a $1,500 user fee and now it will be required to pay a $3,500 user fee.  In this example, “simple” is not good.

    In addition, the IRS eliminated special reduced user fees for certain common errors such as failures related to minimum distribution requirements or plan loans.  Again, this “simplification” is not good for plans that would previously have benefitted from the reduced user fees.  For example, where a plan would have previously paid a $300 user fee for its VCP application related to a plan loan failure which affected 13 or fewer participants, the applicable user fee is now $3,500 if the plan has $10,000,001 or more in assets.  Orphan plans and group submissions are still eligible for alternative VCP user fees, but gone are the failure-based exceptions to the standard VCP user fees.

    Take heed, and check your plans regularly for compliance, so that your plan isn’t another example of how “simple isn’t always good” with the new VCP application user fees!

    Monday, March 7, 2016

    ThinkstockPhotos-465512675 (2)ALERT, ALERT!!!! The IRS has renewed a consumer alert for e-mail schemes regarding phishing and malware incidents targeted at individuals. That renewal came after an approximate 400 percent surge in such incidents so far this tax season. The 400 percent surge was not the end of the phishing schemes this tax season, and now a phishing scheme is emerging to target payroll and HR.

    The IRS has also issued a second alert to warn about additional scams this tax season which are designed to trick HR and payroll professionals to provide personal information on employees. Unlike prior scams, the e-mails are no longer just designed to trick taxpayers into thinking the IRS is attempting to contact them for personal information. This latest phishing scheme is a variation known as a “spoofing” e-mail crafted to look as though it came from within the company being targeted – e.g., company executives.

    A common example described in the most recent alert indicates that the e-mail will use the actual name of the company chief executive officer so that the email appears to be from the “CEO” to a company payroll office employee. The “CEO” will ask that the employee provide a variety of personal information for “review”. Some of the reported requests include:

    • Kindly send me the individual 2015 W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review.
    • Can you send me the updated list of employees with full details (name, social security number, date of birth, home address, salary) as at 2/2/2016?
    • I want you to send me the list of W-2 copy of employees wage and tax statement for 2015, I need them in PDF file type, you can send it as an attachment. Kindly prepare the lists and email them to me ASAP.

    IRS Criminal Investigation is already reviewing several cases in which people have been tricked into sharing SSNs with what turned out to be cybercriminals.

    Payroll and HR professionals need to be vigilant this tax season, because now those phishing hope to lure you into providing them with sensitive employee information. When in doubt, politely verify the request before forwarding sensitive information, including W-2s, filing status and PIN information.

    Thursday, January 7, 2016

    MovingDeadlinesOn December 3, 2015, the President signed into law the Fixing America’s Surface Transportation Act (the “FAST Act”) which provides for five years of funding for highway projects.  If you just skimmed the news on this one, you may not have noticed that the FAST Act included a repeal of the extension to the Form 5500 filing deadline that was provided under the stop-gap Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 that was passed in August.

    As we reported in our previous blog post, the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 provided that, beginning in 2016, the automatic extension for the Form 5500 would be extended from 2½ months to 3½ months from the initial deadline.  Calendar year plans would be allowed to file as late as November 15th.

    In response to a luke-warm reception to the extended deadline (which was apparently viewed by many as serving only to prolong misery), the FAST Act provides that the old October 15th automatic extension deadline has been restored.

    Don’t get tripped up by this legislative game of “now-you-see-it-now-you-don’t.”  As we embark on the new year, mark your calendars for October 15th as the automatic extension due date for filing Form 5500.


    Wednesday, January 6, 2016

    Congress’s recent $1.8 trillion holiday shopping spree (aka The Consolidated Appropriations Act, 2016, which became law on December 18, 2015) included a few employee benefit packages. We recently unwrapped the packages. Here is what we found.


    1.   Cadillac Tax Delayed. The largest present under the employee benefits tree is a delay in the so-called “Cadillac” tax, which as originally enacted imposed a 40% nondeductible excise tax on insurers and self-funded health plans with respect to the cost of employer-sponsored health benefits exceeding statutory limits. The tax is now scheduled to take effect in 2020 rather than 2018. Once – or if – the delayed tax provision becomes effective, it will be deductible. The cost of this gift is $17.7 billion.

    Since the Cadillac tax is basically unadministrable in its current form, we can’t imagine there is even one person at Treasury who would champion it. Expect a full repeal of the tax shortly after a new administration, whether Republican or Democrat, takes office in January 2017.

    2.  Medical Device Excise Tax Suspended for 2016 and 2017 and Health Insurance Tax Suspended for 2017. The Affordable Care Act, as adopted in 2010, imposes an excise tax equal to 2.3% of the sales price of certain medical devices. Opponents of the medical device tax argued that it has been a drain on the economy and has halted investment in research and development for life-saving technologies. Many members of Congress agreed. Thus, a two-year suspension, with a price tag of $3.3 billion, became part of the holiday appropriations law.

    The health insurance tax (again, as originally imposed under the 2010 ACA) imposed a tax on insurance companies based on net premiums written for health insurance. This tax has been passed through to employers and insureds by the carriers. Accordingly, it has drawn criticism and a one-year moratorium on the tax was approved. The $12.2 billion price tag associated with this moratorium should lead to a corresponding decrease in health insurance premiums in 2017.

    3.  Parity Between Transit and Parking Benefits. The monthly limit on commuter vehicle and transit benefits which may be excluded from an employee’s income has been permanently increased to equal the same amount as qualified parking benefits. This added parity was made effective retroactive to January 1, 2015. As a result, the monthly exclusion limit on both commuter vehicle/transit benefits and qualified parking benefits is $250 for 2015 and $255 for 2016. Note that the qualified bicycle commuting reimbursement limitations remain at $20 per month.

    The Act’s retroactive increase of the commuter vehicle and transit benefit limit causes administrative issues with respect to employees who have utilized this benefit in 2015 in monthly amounts above $130 (the previously-applicable 2015 limit) on an after-tax basis. Expect IRS guidance this month regarding how employers should deal with the retroactive increase in the exclusion limits.

    Monday, November 2, 2015

    With all the rulemaking required under the Dodd-Frank Act, it can sometimes be hard to keep up with the status of the various rules.  Below is a handy chart that details the current status of the various executive compensation rulemakings.  We plan to update this periodically for additional rulemakings, so be sure to come back and visit from time to time.

    Last Updated: November 2, 2015

    Provision Summary Status of SEC Rulemaking
    Say on Pay; Say on Golden Parachutes
    § 951
    Requires advisory vote of shareholders on executive compensation and golden parachutes; advisory vote on frequency of say on pay
    • Final rule: adopted January 25, 2011; SEC Rel. No. 33-9178
    Compensation Committee Independence
    § 952(includes comp consultant conflicts)
    Requires stock exchanges to adopt listing standards that require:

    • compensation committee members to be “independent;”
    • each committee must   have the authority to engage compensation advisers and before selecting any adviser, the committee must take into consideration specific independence factors; and
    • the committee must be directly responsible for the appointment, comp and oversight of the advisers and the company must provide funding.

    Requires disclosure of whether the committee obtained advice of a comp consultant, and whether the work raised a conflict of interest and how it was addressed

    • Final rule: adopted June 20, 2012 requiring exchanges to adopt listing standards; SEC Rel. No. 33-9330
    • SEC approved listing standards in January 2013 exchanges subsequently adopted the required listing standards
    Clawback Policy
    § 954
    Requires the company to develop, implement and disclose its policy for recovery of excess incentive-based compensation
    • Proposed rule: released July 1, 2015; SEC Rel. No. 33-9861
    Pay versus Performance
    § 953(a)
    Requires disclosure of the relationship between executive compensation “actually paid” and the company’s financial performance
    • Proposed rule: released April 29, 2015; SEC Rel. No. 34-74835
    Pay Ratio – Internal Pay Equity
    § 953(b)
    Requires disclosure of: (1) the median of the annual total compensation of all employees (except the CEO); (2) the annual total compensation of the CEO; and (3) the ratio of the amount in (1) to the amount in (2).For purposes of the ratio, the amount in (1) equals one (1:450), or, the ratio may be expressed as a narrative (the CEO’s annual total compensation is 450 times that of the median annual total compensation of all employees)
    • Final rule: released August 5, 2015; SEC Rel. No. 33-9877 (first reporting period for fiscal year beginning January 1, 2017 – typically disclosed in the 2018 proxy statement); new Reg. S-K Item 402(u)
    § 955
    Requires disclosure of whether any employee or director may hedge or offset any decrease in the fair market value of company stock
    • Proposed rule: released February 9, 2015; SEC Rel. No. 33-9723
    Chair and CEO positions
    § 972
    Requires disclosure of chairman and CEO structure
    • No planned guidance for this provision; see Reg. S-K Item 407(h)
    Tuesday, January 20, 2015
    Written by and in: General

    Illinois Welcome Sign

    Earlier this month, Illinois became the first State to enact legislation that requires private-sector employers who do not offer qualified retirement plans to enroll their employees in individual retirement accounts (i.e., “IRAs”). Now-former Governor Pat Quinn signed the Illinois Secure Choice Savings Program Act (“Act”) into law on January 4, 2015.

    The Act, which will become effective with enrollment occurring sometime in the next 24 months, has a broad reach. The following provides a high-level summary of the applicability of (and requirements under) the Act:

    What Employers are Subject to the Act?

    For any given year, the Act applies to any employer that:

    • Is a private for-profit or non-for-profit company engaged in business in Illinois;
    • Has been in business for at least two years;
    • Has employed at least 25 employees in Illinois at all times during the previous calendar year; and
    • Has not offered a qualified retirement plan (for example, a 401(k) or 403(b) plan) in the preceding two years.

    An employer with fewer than 25 employees and/or that has been in business for less than two years may, but is not required to, participate in the program.

    What Does the Act Require?

    A private-sector employer that meets the above criteria will be required to either (i) set up a retirement plan for its employees, or (ii) automatically enroll its employees who are age 18 and older in the savings program created by the Act and set up payroll deductions for them to make deposits into the program.

    The program itself will be established and administered by a seven-member board (“Board”) established by the Act. Employee accounts under the program will be set as Roth IRAs under Internal Revenue Code (“Code”) section 408A (i.e., an after-tax IRA).

    The payroll deduction amount is set at a default 3% of the employee’s “wages” (generally, the amount shown in box 10 of Form W-2 (wages, tips, other compensation), less amount properly shown in box 14 (nonqualified plans)).

    Employees may select a payroll deduction amount higher or lower than 3% (subject to the deduction limits under Code section 219(b)(1)(A)) or, alternatively, opt-out of the program entirely. An employee who opts out may later enroll in the program during the applicable open enrollment period (to be set by the employer). An employee’s account will be portable from one employer to another.

    When Will Compliance Be Required?

    The legislation includes a 24-month implementation period following its adoption (i.e., an employer may not be required to comply until 2017). During this pre-implementation window, the Board is required to seek an opinion/ruling of the IRS and the Department of Labor regarding the applicability of the federal Employee Retirement Income Security Act (“ERISA”) to the program. The program may be derailed – and never implemented – if it is determined that the IRA arrangements offered under the program will fail to qualify for the favorable federal income tax treatment ordinarily accorded to IRAs under the Code or it is determined that the program is an employee benefit plan under ERISA.

    Assuming these federal hurdles can be overcome, then once the Board opens the program for enrollment, an employer will have up to nine months to establish the required payroll deduction program.

    What is the Penalty for Failing to Comply?

    An employer that fails to enroll an employee in the program as required by the Act may be hit by a penalty of $250 per employee for each calendar year (or portion thereof) that the employee was not enrolled in (and did not opt-out of) the program. For any calendar year beginning after an initial penalty has been assessed, an increased $500 penalty may be assessed for any portion of that calendar year during which the employee remains unenrolled in (or has not otherwise opted out) of the program.

    Thursday, January 1, 2015

    Happy New Year!

    As part of our annual tradition in helping retirement plan fiduciaries get started down the right path in the new year, we’re pleased to present our Top Ten New Year’s Countdown. But, wait, what’s better than a Top Ten Countdown list to kickoff 2015? How about a Top Ten list set to Pop Culture themes that dominated 2014? Well, here goes nothing…. Because we’re happy (clap along if you feel like a fiduciary without a roof):


    1. It’s all About The Fees, about the Fees, No trouble. Another year, another reminder (thank you, Meghan Trainor) that fees should be closely scrutinized by plan fiduciaries. Participant fee disclosures are not the new kid on the block anymore; however, fiduciaries should still ensure that all required fee disclosures are complete, accurate and made timely. Plan fiduciaries should also periodically monitor all fees charged against the plan’s assets to ensure reasonableness.

    2. The DOL Ice Bucket Challenge – I challenge you, within 24 hours – to get your payroll remittances in…. The DOL has not receded from its firm position that employee deferrals segregated from corporate assets should be paid into the plan “as soon as reasonably practicable”. So, now is as good a time as any to visit with payroll and/or HR to make sure an air-tight process is in place for timely transmitting employee contributions and loan repayments to the plan. Sure, 24 hours may not be a feasible deadline, but remember that the 15th business day of the following month is not a safe harbor for transmissions.

    3. “Game of Thrones” is our new “Sopranos”, “Orange Is the New Black” and “IPS is the new Plan Document”. With heightened scrutiny of plan fiduciaries flowing in part from the so-called 401(k) fee litigation, retirement plan fiduciaries should pay particular attention to the contents of the plan’s investment policy statement (IPS) – or adopt one if it is missing. The review should be focused on ensuring that the IPS is consistent with the fiduciaries’ intent, the other governing plan documents and actual practice (e.g., do we actually use a watch list for 1-year before removing an underperforming manager?).

    4. ‘Cause the players gonna play, play, play, play, play; And the haters gonna hate, hate, hate, hate, hate; Baby, I’m just gonna delegate, gate, gate gate. Delegate it all…. It all?? Being an ERISA fiduciary is hard and delegating certain responsibilities may seem attractive. Retirement plan fiduciaries are well-served to consider retaining professionals and service providers to help perform certain fiduciary tasks. Keep in mind, however, that the act of delegating is a fiduciary act – and even after delegating responsibilities, fiduciaries still have a duty to monitor plan service providers. Also, delegation needs to be permitted by the governing plan documents.

    5. Justin Bieber went to jail again, but this doesn’t have to happen to you. Get fiduciary liability insurance. Okay, so ERISA fiduciary jail is unlikely, but personal liability for restoring to the plan amounts lost due to a breach of ERISA’s complex rules is a real possibility. Remember, that ERISA fiduciary liability insurance serves as a first line of defense for potential breach of fiduciary duties. These policies often come as riders to D&O coverage; consider getting your company’s risk manager or counsel engaged to review the scope and amount of the coverage to assess its appropriateness. Remember that a fiduciary liability insurance is not the same as a fidelity bond. As discussed here, a fidelity bond is separate and distinct from fiduciary liability insurance – and bond coverage is specifically required by law.

    6. It’s not just for Actors at the Oscars, Take a “Group Selfie” when your committee next meets (Yes, that’s a thing now – and a real word according to the Oxford Dictionary). Sure, it may not be as exciting as the red carpet or post-Academy Awards parties, but holding regular plan fiduciary/committee meetings can be a grand ole’ time. Plan fiduciaries should meet periodically (we 179862805generally recommend at least quarterly) to consider information regarding performance, selection, and oversight of plan investments, investment managers, service providers, and other plan administrative matters. Minutes of the meetings should be kept to help demonstrate that the fiduciaries have engaged in a prudent process of analyzing and assessing relevant issues.

    7. Avoid “Scandals” and Having to Call Olivia Pope’s Crisis Management Firm…. Provide fiduciary education and training to plan fiduciaries. It is another one of our favorite taglines – the simple act of providing fiduciary training to your organization’s ERISA fiduciaries is a major step in minimizing fiduciary liability. Training will educate fiduciaries as to their responsibilities and help establish a record of procedural prudence. There are some really nifty fiduciary training programs which can be easily customized for any group of plan fiduciaries.

    8. I’m so fancy, You already know… I’ve reviewed my plan docs, and I’m good to go. Since fiduciaries should make decisions by following the applicable plan documents (e.g., plan, summary plan description, IPS, trust, committee charters, delegations, etc.), fiduciaries should make sure plan documents are consistent with intended plan design, with one another and with actual practice. This can be an arduous undertaking, but can pay huge dividends down the road in the event of litigation or an in-depth plan audit by the IRS or DOL.

    9. “How I Met Your Mother” ends, but fee litigation continues. The list of 401(k) fee cases left on the docket is dwindling, but the Supreme Court has agreed to weigh in on a standard of review issue in the Tibble case. Moral of the story??? Stay tuned, pay close attention to items 1-7 above, pay really close attention to item 10 below and, when in doubt, get the help of retirement plan experts.122517346

    10. Let it Go, Let it Go, Can’t Let ERISA Concerns Hold you Back anymore…. If we’ve said it once, we’ve said it a thousand times – being a good fiduciary is all about having a procedurally prudent process. For each fiduciary decision you should: inquire; analyze; consider alternatives; get help and advice if needed; and document the process, actions and basis for the decision. Completing these tasks will help establish and demonstrate procedural prudence, and ERISA stress will melt away. Pop the bubbly once more!


    Wednesday, September 3, 2014

    Forty years ago yesterday, September 2, 1974, Congress passed the Employees Retirement Income Security Act of 1974.  Most, maybe all, of the people reading this blog owe their careers to a single piece of legislation that has spawned growth industries and cottage industries.  The acronym “ERISA” has special meaning to all who work in the employee benefits industry.

    ERISA exists in no small measure due to three factors:  (1) the ineptitude and greed of those running the automobile manufacturer, Studebaker–Packard Corporation back in the early 1960s; (2) the mismanagement and abuse (likely theft with no federal recourse to protect participants) of the world’s then largest pension fund by the executives of the Teamsters Union; and (3) the legislative tenacity of Senators Jacob Javits and Harrison Williams.  These factors forged together over a decade to get ERISA passed.  The legislative debate was one of the most significant management versus labor debates in Congressional history, and the result is a compromise, or series of compromises, that demonstrate the ability of members of Congress, lobbyists and those holding on to “sacred cows” to come to a resolution in the best interest of the country.

    ERISA has created jobs for numerous government employees in the agencies that write and enforce its broad and complex rules and their exceptions.  Attorneys, accountants, and actuaries who daily address these complex rules on behalf of clients have developed specialty practices in employee benefits.  RIAs, broker-dealers, investment advisors, third-party administrators, insurance salesmen,  and many others who spend their time working with pension and welfare benefit plans owe their professional existence to a single piece of legislation, ERISA.

    ERISA is oft-criticized in no small measure due to its uncompromising complexity in labor law, tax law, and pension insurance law.  ERISA has struggled at times to keep up with societal changes and certainly with the change from traditional defined benefit plans to 401(k) plans.  ERISA’s coverage of welfare benefit plans was somewhat of an after-thought in 1974, and the law itself and particularly the courts have struggled to apply ERISA’s complexity to traditional health plans, HMOs and other types of welfare benefit arrangements.

    Year after year, it is fascinating to see the Supreme Court issue a number of opinions analyzing ERISA.  Not only does this speak to ERISA’s complexity, but it also demonstrates how important ERISA is to the nation and certainly to the economic well-being of Americans.

    Most of us would agree that the policies ERISA attempts to address necessarily give rise to its complexity.  The web of ERISA coverage is vast and sometimes contradictory since the policy issues themselves are so complex.  But overall, the construct of ERISA presents one of the most exceptional pieces of federal legislation ever enacted.  Looking at it over forty years, it has withstood the test of time, but most would agree that it needs refinement in order to improve the employer-based retirement system and assist in providing working Americans with a dignified retirement.

    Happy birthday, ERISA.  May you continue to provide employers with the ability to attract, incentivize and retain quality employees and provide employees with retirement security and economic benefits needed to promote the ideals of hard-working Americans and a productive society for generations to come.

    Thursday, June 12, 2014

    ERISA Plans.     Plan administrators who fail to timely file an annual report on Form 5500 are subject to penalties under both ERISA and the Code.  In 1995, the Department of Labor (DOL) adopted the Delinquent Filer Voluntary Compliance program (DFVC), which permits late filers to file  delinquent Forms 5500 (including all required schedules) and pay a reduced penalty.  The IRS announced, in Notice 2002-23, that it will not impose penalties under the Code on plan administrators who are eligible for and follow the DFVC procedures.  Since 2002, the Department of Labor revised its procedures to require electronic filing of all Form 5500s beginning with the 2009 plan year.  Last year the DOL revised the DFVC program to require electronic filing for delinquent filings. In addition, beginning with the 2009 plan year Schedule SSA was replaced by Form 8955-SSA, which is a standalone form that is filed only with the IRS.  In its most recent guidance on DFVC, the DOL announced that delinquent filers may not submit a Schedule SSA or a Form 8955-SSA under the DFVC program, even for 2008 and prior years.

    In light of these changes in procedure, the IRS recently issued Notice 2014-35 to provide that a plan administrator who has not timely filed Form 5500 and all schedules and Form 8955-SSA for a year or years will not be subject to penalties under the Code if the plan administrator:

    1. Is eligible for and satisfies all of the requirements of the DFVC program for the applicable year or years, and
    2. Files separately with IRS a Form 8955-SSA for the year or years to which the DFVC filing relates.  The filing with the IRS must be on paper.

    The filing with the IRS must be completed by the later of the 30th calendar day after the plan administrator completes the DFVC filing or December 1, 2014.  For example, if a plan administrator previously used the DFVC program to correct a delinquent filing for 2008, but did not file Form 8955-SSA, the plan administrator must file Form 8955-SSA with the IRS on paper no later than December 1, 2014 to be eligible for waiver of the Code’s late filing penalties for the 2008 plan year.

    Non-ERISA Plans.     The procedure described in Notice 2014-35 and its predecessor does not apply to non-ERISA plans.  In Notice 2014-32, the IRS announced a one-year pilot program to provide penalty relief for non-ERISA plans.  The program opened on June 2 2014 and will end on June 2, 2015.

    The pilot program is available to (a) one-participant plans, defined as plans that cover only the owner of a business (and the spouse), one or more partners (and their spouses), and does not cover anyone else (such as common law employees) and (b) foreign plans.  There is no fee for submitting delinquent filings under the pilot program. The submission is to be filed on paper at the addresses specified in Notice 2014-35 and include the following:

    1. The Form 5500 for the applicable year and all required schedules, reports, and attachments.  For returns for 2008 and earlier years, the filer should submit the Form 5500 for that year.  For returns for 2009 and later years, the filer should submit the Form 5500-EZ for that year.  Prior year forms are available online at or by calling 1-800-TAX-Form.
    2. Each delinquent return must include the following in red letters at the top of the first page above the title:  “Delinquent return submitted under Rev. Proc. 2014-32, Eligible for Penalty Relief.”
    3. The filer must attach the Transmittal Schedule (Attachment A to Notice 2014-32) to the front of each delinquent return. For example, if there are 3 delinquent returns, the filer must complete 3 Transmittal Schedules, one for each return.

    The Notice states that the failure to follow the procedures, for example, not marking the first page in red or failing to attach a Transmittal Schedule to each return) may cause the IRS to treat the submission as ineligible for relief and to assess all of the penalties.