We have a 401(k)/PS plan. Although matching contributions are made quite often, PS contributions have never been made. Is this plan in violation of 1.401-1(b)(2) (substantial and recurring contribution requirement)?

Fun question. My approach is to consider any '401k' plan as a subset of PS. Therefore, contributions are in fact being made and this would satisfy the requirement. Now I realise each contribution type can be considered a 'plan' for various testing regimines, but that doesn't defeat the basic premise that this plan is recieving regular contributions.

Aside: as a practical matter, what would the IRS or DOL's position be regarding correction? Disqualification of a bona fide plan that serves the needs of employees is unlikely.

I guess I'd not worry too much about it. But then I'll wait for more informed responses.

Good luck.

No, it is not a violation.

It's not a violation because the 401(k) and the PS are merely components of the same plan?

401(k) deferrals and matching contributions are considered employer contributions.

Very nice. Thank you.

Is the profit sharing contribution at the employer's discretion? If it is, then there is no violation.

The match might even be discretionary.

It is discretionary, but don't believe that matters under1.401-1b)(2).