Form 5500 late filing penalty in 2026: DOL, DFVCP, IRS

ERISA §502(c)(2) lets the Secretary of Labor assess a civil penalty of up to $1,000 a day against a plan administrator who fails or refuses to file a complete and accurate annual report. That $1,000 is adjusted for inflation every year under 29 CFR 2575.3; the January 10, 2025 notice set it at $2,739 for penalties assessed after January 15, 2025, and the May 27, 2026 notice made no adjustment for 2026 because the Bureau of Labor Statistics never published the October 2025 CPI-U figure the formula needs. The 2025 Form 5500 instructions print the same number: “a penalty of up to $2,739 a day for each day a plan administrator fails or refuses to file.” There is no annual cap and it runs per filing, so three missing years are three clocks.

The DOL does not open with the maximum. Under 29 CFR 2560.502c-2 the amount is set by “the degree and/or willfulness” of the failure, and the Department may waive all or part of it for reasonable cause. EBSA's DFVCP FAQ says administrators who stay outside the program “may be assessed” $50 a day with no limit for a report filed late, and $300 a day up to $30,000 a year for a report not filed at all. A year of lateness at the statutory rate is more than $999,000 on paper; the number the notice is likely to carry is in the tens of thousands. Either is why the notice matters, and what happens when it arrives is in the DOL missing Form 5500 letter guide.

IRC §6652(e) imposes $250 for each day a return required under §6058, §6047, or §6039D is late, up to $150,000 per return, unless the failure is due to reasonable cause. Section 6058(a) is the annual-return requirement for an employer that maintains “a pension, annuity, stock bonus, profit-sharing, or other funded plan of deferred compensation.” A 401(k), a defined benefit plan, an ESOP, or a 403(b) that files Form 5500 is filing that return, and its sponsor faces both the DOL and the IRS clock.

A medical, dental, vision, life, or disability plan is not a plan of deferred compensation. Its Form 5500 is required by Title I of ERISA, not by §6058, so the §6652(e) penalty does not attach. The IRS says the same thing two ways: the 2025 Form 5500 instructions describe the $250 penalty as applying to “certain plans of deferred compensation, trusts and annuities, and bond purchase plans,” and the IRS's own CP403/CP406 notice page carries a table that marks pension plans for both penalties and welfare plans for the DOL penalty alone.

For retirement plans, the IRS penalty goes away with the DOL one. Under Notice 2014-35 the IRS will not impose §6652(d), §6652(e), or §6692 penalties on a Title I plan that satisfies the DFVC Program, provided any required Form 8955-SSA is filed with the IRS on paper within 30 days. No separate application is needed. The details are in IRS penalty relief after DFVCP.

The Delinquent Filer Voluntary Compliance Program replaces the open-ended §502(c)(2) penalty with $10 for every day past the original due date, counted without regard to any Form 5558 extension (DFVCP FAQ Q11), and caps it:

• Small plan (fewer than 100 participants at the start of the plan year): $750 per annual report, $1,500 per plan when several years go in one submission.
• Large plan (100 or more): $2,000 per annual report, $4,000 per plan.
• Small plan sponsored by a 501(c)(3): $750 for the whole submission, however many late years.
• Top hat plans, apprenticeship and training plans, and late Form M-1 filers (MEWAs and ECEs): $750 flat. The M-1 extension is new, from the DOL's December 31, 2025 program notice at 90 FR 61411.

The per-plan cap only applies if every late year for the plan goes in the same online transaction. The penalty is the administrator's personal liability and cannot be paid from plan assets (FAQ Q15), and paying it waives the right to a notice of assessment and to contest the amount. Price a submission at askebsa.dol.gov/dfvcepay before engaging counsel; the step-by-step is in the DFVCP cure timeline.

DFVCP is available only if the required filings are made before the date the administrator is notified in writing by the Department of Labor of a failure to file (DFVCP FAQ Q2). The DOL's FAQ is blunt about which letter counts: “An IRS late-filer letter will not disqualify a plan from participating in the DFVCP. A Department of Labor Notice of Intent to Assess a Penalty will always disqualify a plan” (Q12). Once that notice arrives, the program closes for the years it names and the exposure goes back to the §502(c)(2) rate, with 30 days to respond.

Sponsors who learn of a gap on their own, for example while preparing a new filing or switching TPAs, should file under the program first and sort out blame later. The full eligibility rules are in DFVCP eligibility.

Illustrative only. A calendar-year welfare plan with 40 participants that is required to file (a small welfare plan that is fully insured or unfunded is exempt under 29 CFR 2520.104-20, so assume this one holds assets in a trust) missed its 2024 Form 5500. The return was due July 31, 2025; the administrator files it on September 30, 2026, 426 days late.

• Self-correcting under DFVCP: $10 × 426 = $4,260 before the cap, so the small-plan cap of $750 applies.
• If a DOL Notice of Intent had arrived first: the statutory ceiling is 426 × $2,739, about $1.17 million. EBSA's own FAQ figure for a non-filer, $300 a day capped at $30,000 for each year of delinquency, puts the likely notice in the tens of thousands, forty times the DFVCP fee. The DOL decides the actual amount.
• IRS: nothing. A welfare plan's Form 5500 is not a §6058 return.

1. Pull the filing history: the EFAST2 filing search, or the free penalty check, which walks every welfare Form 5500 on record for a sponsor and flags gaps.
2. List every plan year with no filing, including a wrap plan that should have produced one and years when the participant count crossed 100.
3. Confirm with the plan administrator, the mailroom, and the registered agent that no DOL Notice of Intent has arrived for any of those years.
4. Prepare each missing return on that year's form, check the DFVC box in Part I, and file through EFAST2.
5. Pay at askebsa.dol.gov/dfvcepay in one transaction for all years of the plan, and keep the EFAST2 acknowledgments and the payment receipt in the permanent file.

Is the DOL penalty really $2,739 a day with no cap?

Up to that amount, per ERISA §502(c)(2) as adjusted at 90 FR 1854, with no annual maximum, and unchanged for 2026 per the DOL's May 27, 2026 notice. The DOL sets the actual amount in a Notice of Intent and can reduce it for reasonable cause; EBSA's published non-DFVCP figures are $50 a day for late filers and $300 a day up to $30,000 a year for non-filers.

Does the IRS $250-a-day penalty apply to my health plan?

No. IRC §6652(e) reaches returns required under §6058, which covers funded plans of deferred compensation. The IRS's notice page lists welfare plans under the DOL penalty only. If the same sponsor also has a 401(k) with late years, that plan faces the IRS penalty, and DFVCP plus a paper Form 8955-SSA clears it under Notice 2014-35.

How much does the DFVCP cost?

$10 a day from the original due date, capped at $750 per report for a small plan and $2,000 per report for a large plan, with per-plan maximums of $1,500 and $4,000 when all late years are submitted together. A small plan sponsored by a 501(c)(3) pays at most $750 for the whole submission.

Can I still use the DFVCP after the DOL sends a letter?

Not for the years the letter names. The program is open only until the administrator is notified in writing by the DOL of a failure to file; a Notice of Intent to Assess a Penalty always disqualifies, an IRS letter never does. After a DOL notice, see the DOL missing Form 5500 letter guide for the 30-day response.

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