Sometimes there are hardships that may make it difficult for a taxpayer to file certain reports electronically even where such filing is required. In Revenue Procedure 2015-47 the IRS has issued guidance on requesting such a hardship waiver for plan administrators that are required to file Forms 5500-EZ (Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan) and/or Form 8955-SSA (Annual Registration Statement Identifying Separated Participants With Deferred Vested Benefits).
The IRS is authorized under IRC §601(e) of the IRC to mandate electronic filing by an entity that is required to file at 250 returns during a calendar year. In response to that provision the IRS issued the following provisions regarding the retirement plan forms noted above:
Under § 301.6057-3 of the electronic filing regulations, a Form 8955-SSA registration statement must be filed electronically if the plan administrator is required to file at least 250 returns during the calendar year that includes the first day of the plan year. Under § 301.6058-2 of the electronic filing regulations, a Form 5500 series return must be filed electronically if the plan administrator and the employer maintaining the plan are, in the aggregate, required to file at least 250 returns during the calendar year that includes the first day of the plan year. These electronic filing regulations provide that if a filer is required to file electronically a Form 8955-SSA registration statement or a Form 5500 series return and fails to do so, the filer is deemed to have failed to file the registration statement or the return, respectively.
As noted, these requirements took effect during 2015. The revenue procedure notes:
The electronic filing requirement under § 301.6057-3 of the electronic filing regulations applies to Form 8955-SSA registration statements required to be filed for plan years that begin on or after January 1, 2014, but only for filings with a filing deadline (not taking into account extensions) on or after July 31, 2015. Filers of Form 8955-SSA registration statements due on July 31, 2015, would be eligible for an automatic extension until October 15, 2015, if they filed Form 5558, Application for Extension of Time to File Certain Employee Plan Returns. The electronic filing requirement under §301.6058-2 of the electronic filing regulations applies to Form 5500 series returns required to be filed for plan years that begin on or after January 1, 2015, but only for filings with a filing deadline (not taking into account extensions) after December 31, 2015. Form 8955-SSA registration statements that are filed electronically are filed using the Filing Information Returns Electronically (FIRE) system. Form 5500 series returns that are required to be filed electronically are generally filed under the Department of Labor's ERISA Filing Acceptance System (EFAST2). However, because Form 5500-EZ returns are paper-only returns that are filed with the IRS, filers of Form 5500-EZ returns that are required to file electronically must file Form 5500-SF returns using EFAST2 in lieu of the Form 5500-EZ.
The relief in this ruling is limited to those two forms only and thus does not apply to entities otherwise required to file Form 5500 and Form 5500-SF which were already required to be filed electronically via the EFAST2 system. The ruling also notes that the IRS expects to grant relief only in “unusual circumstances” and therefore taxpayers should not assume that such relief will be available. Thus, if at all possible, a taxpayer should endeavor to electronically file these forms if otherwise required.
While the ruling holds the IRS will consider the taxpayer’s specific facts and circumstances in deciding whether or not to grant relief, the ruling provides the IRS will consider the following specific facts:
In determining whether to approve or deny a request, the IRS will consider the filer's ability to file timely the registration statement or return electronically without incurring an undue economic hardship. The IRS will generally grant a waiver if the filer can demonstrate that undue economic hardship would occur by complying with the electronic filing requirement, including a demonstration of any incremental costs the filer would incur in filing electronically rather than using a paper form.
The request must be made in writing separately for each plan for which a waiver is being requested. The requests must contain the following information:
1. A notation at the top of the request stating, in large letters, the type of form followed by the words "e-file Waiver Request" (for example, "Form 8955-SSA e-file Waiver Request" or "Form 5500-EZ e-file Waiver Request").
2. The filer's name, employer identification number (EIN), mailing address, phone number, e-mail address, and a contact name.
3. The name and EIN of the employer maintaining the plan (if different from the filer).
4. The name of the plan and the plan number.
5. The plan year for which the waiver is requested.
6. A detailed statement that provides the following information:
a. the steps the filer has taken in an attempt to meet its requirement to timely file its registration statement or return electronically,
b. why the steps were unsuccessful, and
c. the undue economic hardship that would result by complying with the electronic filing requirement, including any incremental costs to the filer of complying with the electronic filing requirement. Incremental costs are those costs that are above and beyond the costs to file on paper. The incremental costs must be supported by a detailed computation that includes a schedule detailing the costs to file on paper and the costs to file electronically.
7. A statement as to what steps the filer will take to assure its ability to file future registration statements or returns electronically. If a subsequent waiver is requested for a registration statement or return for a later year, the IRS will consider the failure by the filer to take these steps in determining whether a waiver should be granted for the later year.
8. A statement signed by the filer with the following language:
Under penalties of perjury, I declare that I have reviewed the request and, to the best of my knowledge and belief, the information contained in this waiver request is true, correct, and complete.
The request are not to be submitted with the forms themselves, nor should they be included with an extension request or any payment.
While the request may be filed up through the due date of the forms (including extensions) the IRS encourages those seeking waivers to file the request at least 45 days before the due date to give the IRS time to process it and the administrator time to electronically file should the request be denied.
The ruling has addresses to send the request to along with a fax number to which requests may be sent.
The taxpayer will not have permission to file on paper unless the taxpayer receives an IRS approval. As the notice concludes:
The IRS will review and process waiver requests in a timely manner and will send the filer written notice of rejection or approval of the filer's waiver request. The written notice will provide additional information regarding any further steps to be taken by the filer. The IRS will not be considered to have waived the electronic filing requirement unless the filer receives written approval from the IRS that the waiver request has been granted. In the absence of written approval from the IRS that the waiver request has been granted, a failure to file electronically constitutes a failure to file. Under § 6652(d)(1) and (e), a failure to file timely either a Form 8955-SSA registration statement or a Form 5500-EZ return is subject to penalty unless it is shown that the failure was due to reasonable cause.
The ruling is effective September 28, 2015.