I work on the 5500 for an ESOP that hasn't made a contribution in years. Every one is 100% vested. There are around 50 participants with balances but that number would be over 100 eligibles which would share in a contribution if one were made. So we've filed a Schedule H with an audit.

Now they have decided to freeze the plan. Since the extra eligibles will never receive a contribution or have a balance in the plan can we go to a small plan 5500? Technically are those who were once eligible but will now never receive a contribution still counted as "participants" for 5500 count purposes?

Thanks