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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Rules and Regulations
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being added beginning with the 2021
reporting year are discussed below.
II. 2021 Form 5500 Annual Return/
Report Changes for MEPs and Pooled Empoyer Plans SECURE Act section 101 amended ERISA section 32 and added ERISA
sections 343 and 344 to allow for a new type of ERISA-covered multiple employer pension plan MEP for plan years beginning on or after January 1, 2021a defined contribution pension plan called a pooled employer plan operated by a pooled plan provider.
Pooled employer plans allow multiple unrelated employers to participate without the need for any common interest among the participating employers other than having adopted the plan. Under section 32 of ERISA, as amended by the SECURE Act, a pooled employer plan is treated for purposes of ERISA as a single plan that is a multiple employer plan. New section 344 of ERISA establishes requirements for pooled plan providers, including a requirement to register with the DOL before beginning operations as a pooled plan provider. A parallel requirement to file a registration statement with the Secretary of Treasury is in section 413e3Aii of the Code.
On November 16, 2020, the DOL
published a notice of final rulemaking establishing the registration requirement for pooled plan providers. 85 FR 72934
Nov. 16, 2020. The Treasury Department and the IRS have advised that filing the Form PR with the DOL
will satisfy the requirement to register with the Secretary of the Treasury. The instructions to the Form PR Pooled Plan Provider Registration Form PR
advised registrants to use the same identifying information on the Forms 5500 Annual Return/Report filed by the pooled employer plans, particularly name; EIN for the pooled plan provider;
any identified affiliates providing services; trustees; and plan name and number for each pooled employer plan.
Section 101 of the SECURE Act also amended ERISA section 103g, effective for plan years beginning on or after January 1, 2021. Section 103g was added to ERISA by the Cooperative and Small Employer Charity Pension Flexibility Act CSEC Act in 2014.4
Prior to the SECURE Act amendment, section 103g required multiple employer plans to include with their annual reports a list of participating employers and, with respect to each participating employer, a good faith estimate of the percentage of total contributions made by such 4 Public
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participating employer during the plan year. In response to the CSEC Act, the Form 5500 instructions for 2014 and later were amended to provide for all multiple employer plans to include the section 103g information as a nonstandard attachment.5 SECURE Act section 101d amended ERISA section 103g by providing that annual reports for any plan to which ERISA section 210a applies including a pooled employer plan also must include two additional pieces of information: 1 The aggregate account balances attributable to each employer in the plan determined as the sum of the account balances of the employees of such employer and the beneficiaries of such employees, and 2 with respect to a pooled employer plan, identifying information for the person designated under the terms of the plan as the pooled plan provider.
As discussed in the NPFR, the statutory establishment of pooled employer plans as a type of multiple employer plan under Title I of ERISA
requires some adjustments to the Form 5500 Annual Return/Report to acknowledge the existence of this new type of plan and to confirm that pooled employer plans must file a Form 5500
Annual Return/Report in accordance with the requirements that apply to other MEPs that file the Form 5500. The adjustments to accommodate pooled employer plan reporting on the Form 5500 were presented in the NPFR
largely in the form of a new proposed Schedule MEP and its instructions that would be a required part of the Form 5500 Annual Return/Report for various types of MEPs, including pooled employer plans. As proposed, however, the Schedule MEP would not be effective until plan years beginning on or after January 1, 2022, but under the SECURE Act, pooled employer plans could begin operating for plan years beginning on or after January 1, 2021. In order to implement core elements of the SECURE Act section 101d reporting requirements on a timely basis, the NPFR included proposed amendments to the instructions for the 2021 Form 5500 and Form 5500SF, specifically for the multiple-employer plan check box that is currently on Part I, line A of the Form 5500 and Form 5500SF. Upon review of the public comments, the Department continues to believe that amending those instructions is an efficient and appropriate way to provide for the reporting of ERISA section 103g information for the 2021 reporting year.
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Specifically, the instructions to the 2021 Form 5500 6 for Part I, Line A the multiple-employer plan checkbox are being amended to note that 1 a pooled employer plan operated by a pooled plan provider that meets the definition under ERISA section 343 is a multiple employer plan, and 2 like other ERISA-covered pension MEPs, a single Form 5500 Annual Return/Report is required to be filed for a pooled employer plan.7 The 2021 instructions to the Form 5500 and Form 5500SF for the multiple-employer plan check box are being further amended to require MEPs to include a new data element on the currently required 2021 nonstandard attachment, specifically the Aggregate Account Balances Attributable to Participating Employer element 4. The instructions to the multiple-employer plan check box currently provide that the Annual Return/Report filed for a multipleemployer plan MEPs and multiple employer welfare plans must include a non-standard attachment that identifies the participating employers in the plan by name and employer identification number EIN and include for each participating employer an estimate of 6 As noted above, pooled employer plans are not eligible to file the Form 5500SF so the instructions describing the pooled employer plans status as a MEP are not being added to the Form 5500SF
instructions.
7 A commenter presenting itself as representing accounting industry interests asked for clarification regarding audit requirements for pooled employer plans. To some extent, however, the comment incorrectly assumed that a pooled employer plan operates as an aggregation of many plans, rather than as a single ERISA-covered plan. For example, the commenter asked If a pooled employer plan is comprised of hundreds of plans, will each plan be required to be audited annually? The commenter also asked If the DOL permits rotation of audit procedures for plans participating in a pooled employer plan, how will that be determined? The commenter also asked Will the DOL provide guidance for the auditor if there are one or more plans within the pooled employer plan that are not compliant with the plan document or with ERISA?
A pooled employer plan, like other MEPs, is a single plan covering the employees of multiple employers. It is not comprised of multiple separate plans, as would be true of the proposed new direct filing entity the DCG. The Department notes that nothing in the SECURE Act changed the ERISA
independent qualified public accountant IQPA
audit requirements as they apply to pooled employer plans. Rather, under ERISA, pooled employer plans are subject to the Form 5500
Annual Return/Report requirements that apply generally to employee pension benefit plans, including the audit requirements under ERISA that apply to employee pension benefit plans generally.
As such, the audit must be performed in accordance with Generally Accepted Auditing Standards GAAS, which are established by the accounting industry not the Department. How GAAS applies to pooled employer plans, including any differences in audit procedures that may be required under GAAS, are issues that are beyond the scope of these forms revisions.

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