Plan has been operating for several years under plan terms that were supposedly modified by an amendment. Problem is that amendment should have changed allocation requirments to no conditions, but did not. Plan languange still says 1000 Hours and Last Day required to receive allocation. Operationally, the plan allocated to all participants, regardless of hours and employment status. While this was exclusively a benefit for the NHCE, it was still an operational failure. This went on for over 5 years! How should this be corrected?

Thanks for any and all comments.

You might consider Larry's approach

Even the approach I describe, aggressive or not, has its limits. I would say that 5 years without correcting a "scrivener's error", even if correction occurs as soon as the error is discovered, is too long a time period.

I'd use EPCRS Section 4.05(1) to correct by amendment, since your OP indicates that such a retroactive amendment would benefit NHCEs and therefore it apparently would pass the non-discrimination standards of IRC Section 401(a)(4) and 410(b).

If, operationally, the amendment is not non-discriminatory, then a mere amendment would not properly correct, and more would be required (such as an additional allocation for prior years to the NHCEs).

Self-correction would not be available under EPCRS for this amendment (see Section 4.05(2)).

okay. thanks.