Would a plan amendment that says that participants hired after a certain date are ineligible for a plan be a disqualifying provision under 410(a)(1)(A)(ii) after say two and 1/2 years have passed, even if the group still in the plan passes 410(b)?

This assumes an active, not frozen plan.

Is the only way around this to make this group eligible but give them nothing?

I don't think so. This is just another class of excluded employees, like if you excluded hourly employees or people with giant heads.

of course, the net result is that you start losing good help, cuz they will quit. Imagine, excluding people with giant heads or even those with three eyes!

Well, then, can a plan have eligibility requirements of age 25 with 5 years of service if it would pass the 410(b) ratio/percentage test?

Could those age 22-24 and those with 2-4 years of service be considered an excluded class?

I don't disagree with your answers, I'm just trying to better understand the relationship between 410(a) and 410(b).

Andy, there is a good discussion on the topic on page 2.4 of the 2003 Edition of the ERISA Outline Book. If you don't have access, then consult 1.410(a)-3(e)(1).

I found something better. Specifically look at example 6 in the above cite. It is right on point.

Perfect, Blinky, thank you.

p.s. The regulation sure takes liberties with the Code.