[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31427]


[[Page Unknown]]

[Federal Register: December 23, 1994]



List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

 

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 continues to read, 
in part, as follows:

    Authority: 26 U.S.C. 7805 * * *

    Par. 2. Section 1.401(k)-0 is amended as follows:
    1. The entries for Sec. 1.401(k)-1, paragraph (b)(3) and (b)(3)(i) 
and (ii) are revised.
    2. The entries for Sec. 1.401(k)-1, paragraph (b)(3)(ii)(A) and 
(B), and (b)(3)(iii) and (iv) are removed.
    3. The entry for Sec. 1.401(k)-1 paragraph (b)(4)(ii) is revised.
    4. An entry for Sec. 1.401(k)-1, paragraph (e)(6)(vi) is added.
    5. The entries for Sec. 1.401(k)-1, paragraph (g)(11)(i) and (ii) 
are revised.
    6. Entries for Sec. 1.401(k)-1, paragraphs (g)(11)(ii)(A) through 
(C) are added.
    7. The entries for Sec. 1.401(k)-1, paragraphs (g)(11)(iii), 
(g)(11)(iii)(A) through (D), (g)(11)(iii)(D)(1) and (2), and 
(g)(11)(iv) are removed.
    8. Entries for Sec. 1.401(k)-1, paragraph (g)(15) and (16) are 
added.
    9. The entry for Sec. 1.401(k)-1, paragraph (h)(4)(ii) is revised.
    The added and revised entries read as follows:


Sec. 1.401(k)-0  Certain cash or deferred arrangements, table of 
contents.

* * * * *

Sec. 1.401(k)-1 * * *

* * * * *
    (b) * * *
    (3) Aggregation.
    (i) Aggregation of arrangements and plans.
    (ii) Restructuring and Permissive Aggregation.
    (4) * * *
    (ii) Elective contributions and qualified nonelective 
contributions used to satisfy actual contribution percentage test.
* * * * *
    (e) * * *
    (6) * * *
    (vi) Examples.
* * * * *
    (g) * * *
    (11) * * *
    (i) Application of section 410(b) rules.
    (ii) Modifications to section 410(b) rules.
    (A) In general.
    (B) Plans benefiting collective bargaining unit employees.
    (C) Multiemployer plans.
* * * * *
    (15) Section 401(k) plan.
    (16) Section 401(m) plan.
    (h) * * *
    (4) * * *
    (ii) Plan years beginning before January 1, 1996.

* * * * *
    Par. 3. Section 1.401(k)-1 is amended as follows:
    1. Paragraph (a) is amended as follows:
    i. Paragraph (a)(3)(iv) is amended by adding a sentence immediately 
before the last sentence.
    ii. Paragraph (a)(3)(v) is revised.
    iii. Paragraph (a)(3)(vi), Example 3, is added.
    iv. Paragraphs (a)(4)(ii) and (iv), (a)(5)(iv), (a)(6)(ii)(C), and 
(a)(7)(i) are revised.
    2. Paragraph (b) is amended as follows:
    i. Paragraphs (b)(1)(i), (ii), and (b)(3) are revised.
    ii. Paragraph (b)(4)(ii) heading is revised and a sentence is added 
at the end of the paragraph.
    iii. Paragraphs (b)(4)(iv), (b)(5)(i) and (ii) are amended by 
adding a sentence at the end of each paragraph.
    iv. Paragraph (b)(5)(vi) is revised.
    v. Paragraph (b)(6) is amended by:
    a. Revising Example 2, paragraph (i).
    b. Revising Example 3, paragraph (i).
    c. Revising Example 4, paragraph (i).
    3. Paragraph (d) is amended as follows:
    i. Paragraphs (d)(2)(iv)(A)(3), (d)(3), and (d)(4)(i) are revised.
    ii. The last sentence of paragraph (d)(5) is revised.
    iii. A sentence is added at the end of paragraph (d)(6)(iv).
    4. Paragraph (e) is amended as follows:
    i. A sentence is added at the end of paragraph (e)(6)(ii).
    ii. Paragraph (e)(6)(vi) is added.
    iii. Paragraph (e)(7) is revised.
    5. Paragraph (f) is amended as follows:
    i. Paragraphs (f)(1)(iii), (f)(2), (f)(3)(ii), and (f)(3)(iii)(C) 
are revised.
    ii. In paragraph (f)(3)(v), paragraph (i) of the Example is 
revised.
    iii. Paragraph (f)(4)(ii)(B) is revised.
    iv. Paragraph (f)(7), paragraph (i) of Example 1, and Examples 2 
and 3 are revised.
    6. Paragraph (g) is amended as follows:
    i. Paragraphs (g)(1)(ii)(B)(1) and (C)(1), and (g)(2)(i) are 
revised.
    ii. A sentence is added at the end of paragraph (g)(4)(ii).
    iii. Paragraphs (g)(5), (6) and (11) are revised.
    iv. Paragraphs (g)(15) and (16) are added.
    7. Paragraphs (h)(3)(iii) (A) and (B)(2), and (h)(4)(ii) are 
revised.
    The added and revised provisions read as follows:


Sec. 1.401(k)-1  Certain cash or deferred arrangements.

    (a) * * *
    (3) * * *
    (iv) * * * In no event is an election made after December 23, 1994 
treated as one-time irrevocable election under this paragraph if the 
election is made by an employee who previously became eligible under 
another plan (whether or not terminated) of the employer. * * *
    (v) Tax treatment of employees. An amount generally is includible 
in an employee's gross income for the taxable year in which the 
employee actually or constructively receives the amount. But for 
section 402(e)(3) and section 401(k), an employee is treated as having 
received an amount that is contributed to a plan pursuant to the 
employee's cash or deferred election. This is the case even if the 
election to defer is made before the year in which the amount is 
earned, or before the amount is currently available. See Sec. 1.402(a)-
1(d).
    (vi) * * *
* * * * *
    Example 3. (i) Employer A establishes a qualified money purchase 
pension plan in 1986. This is the first qualified plan established 
by Employer A. All salaried employees are eligible to participate 
under the plan. Hourly-paid employees are not eligible to 
participate under the plan. In 1996, Employer A establishes a 
profit-sharing plan under which all employees (both salaried and 
hourly) are eligible. Employer A permits all employees on the 
effective date of the profit-sharing plan to make a one-time 
irrevocable election to have Employer A contribute five percent of 
compensation on their behalf to the plan and to any other plan of 
Employer A (including plans not yet established) for the duration of 
the employee's employment with Employer A, and have their salaries 
reduced by five percent.
    (ii) The election provided under the profit-sharing plan is not 
a one-time irrevocable election within the meaning of Sec. 1.401(k)- 
1(a)(3)(iv) with respect to the salaried employees of Employer A 
who, at any time before becoming eligible to participate under the 
profit-sharing plan, became eligible to participate under the money 
purchase pension plan. The election under the profit-sharing plan is 
a one-time irrevocable election within the meaning of Sec. 1.401(k)- 
1(a)(3)(iv) with respect to the hourly employees, because they were 
not previously eligible to participate under another plan of the 
employer.

    (4) * * *
    (ii) Treatment of elective contributions as employer contributions. 
Except as provided in paragraph (f) of this section, elective 
contributions under a qualified cash or deferred arrangement are 
treated as employer contributions. Thus, for example, elective 
contributions are treated as employer contributions for purposes of 
sections 401(a) and 401(k), 402, 404, 409, 411, 412, 415, 416, and 417.
* * * * *
    (iv) Application of nondiscrimination requirements to plan that 
includes a qualified cash or deferred arrangement. A plan that includes 
a qualified cash or deferred arrangement must satisfy the requirements 
of sections 401(a)(4) and 410(b). Thus, for example, the plan must 
satisfy section 401(a)(4) with respect to the amount of contributions 
or benefits and the availability of benefits, rights and features under 
the plan. See Sec. 1.401(a)(4)-1(b)(3). The right to make each level of 
elective contributions under a cash or deferred arrangement is a 
benefit, right or feature subject to this requirement, and each of 
these rights must therefore generally be available to a group of 
employees that satisfies section 410(b). See Sec. 1.401(a)(4)-
4(e)(3)(i) and (iii)(D). Thus, for example, if all employees are 
eligible to make a stated level of elective contributions under a cash 
or deferred arrangement, but that level of contributions can only be 
made from compensation in excess of a stated amount, such as the Social 
Security taxable wage base, the arrangement will generally favor highly 
compensated employees with respect to the availability of elective 
contributions and thus will generally not satisfy the requirements of 
section 401(a)(4). For plan years beginning after December 31, 1984, 
the amount of elective contributions under a qualified cash or deferred 
arrangement satisfies the requirements of section 401(a)(4) only if the 
amount of elective contributions satisfies the special 
nondiscrimination test of section 401(k)(3) and paragraph (b)(2) of 
this section. See Sec. 1.401(a)(4)-1(b)(2)(ii)(B). See also 
Sec. 1.401(a)(4)- 11(g)(3)(vii)(A), relating to corrective amendments 
that may be made to satisfy the minimum coverage requirements of 
section 410(b).
    (5) * * *
    (iv) Qualification of plan that includes a nonqualified cash or 
deferred arrangement. A profit-sharing, stock bonus, pre-ERISA money 
purchase pension, or rural cooperative plan does not fail to satisfy 
the requirements of section 401(a) merely because the plan includes a 
nonqualified cash or deferred arrangement. In determining whether the 
plan satisfies the requirements of section 401(a)(4), the special 
nondiscrimination tests of sections 401(k)(3) and 401(m)(2) may not be 
used. See Secs. 1.401(a)(4)-1(b)(2)(ii)(B) and 1.410(b)-9 (definition 
of section 401(k) plan).
    (6) * * *
    (ii) * * *
    (C) Transition rule for partnership cash or deferred elections. A 
one-time irrevocable election to participate or not to participate in a 
plan in which partners may participate is not a cash or deferred 
election if the election was made on or before the later of the first 
day of the first plan year beginning after December 31, 1988, or March 
31, 1989. This election may be made after the commencement of 
employment or after the employee's first becoming eligible under any 
plan of the employer. In no event, however, may the election be made 
after December 23, 1994. The election may be made even if the one-time 
irrevocable election in Sec. 1.401(k)-1(a)(3)(iv) was previously made.
* * * * *
    (7) * * * (i) In general. The amount of employer contributions 
under a nonqualified cash or deferred arrangement is treated as 
satisfying section 401(a)(4) if the arrangement is part of a 
collectively bargained plan (including a plan adopted by a state or 
local government before May 6, 1986) that automatically satisfies the 
requirements of section 410(b). See Secs. 1.401(a)(4)-1(c)(5) and 
1.410(b)-2(b)(7). Except as specifically provided otherwise, elective 
contributions under the arrangement are treated as employer 
contributions. See Sec. 1.401(k)-1(a)(5)(ii). However, elective 
contributions under the nonqualified cash or deferred arrangement are 
treated as employee contributions for purposes of section 402(a) for 
plan years beginning after December 31, 1992, and are therefore not 
excludable from gross income under section 402(e)(3). See 
Sec. 1.402(a)-1(d)(3)(iv).
* * * * *
    (b) * * *
    (1) * * *
    (i) The group of eligible employees under the section 401(k) plan 
and the group of employees benefiting under the plan to which the 
nonelective employer contributions are made separately satisfy the 
requirements of section 410(b) (including the average benefit 
percentage test, if applicable). For special rules governing the 
application of section 410(b) to a cash or deferred arrangement, see 
Secs. 1.410(b)-7(c)(1) and 1.410(b)-8(a)(1). See also Sec. 1.401(a)(4)- 
11(g)(3)(vii)(A), relating to corrective amendments that may be made to 
satisfy the minimum coverage requirements of section 410(b).
    (ii) The cash or deferred arrangement satisfies the actual deferral 
percentage test described in paragraph (b)(2) of this section. This is 
the exclusive nondiscrimination test applicable to the amount of 
elective contributions under a qualified cash or deferred arrangement. 
See Sec. 1.401(a)(4)-1(b)(2)(ii)(B).
* * * * *
    (3) Aggregation--(i) Aggregation of arrangements and plans. Except 
as otherwise specifically provided in this paragraph (b)(3), all cash 
or deferred arrangements included in a plan are treated as a single 
cash or deferred arrangement. Thus, for example, if two groups of 
employees are eligible for separate cash or deferred arrangements under 
the same plan, the two cash or deferred arrangements are treated as a 
single cash or deferred arrangement, even if they have significantly 
different features, such as significantly different limits on elective 
contributions. See Sec. 1.401(k)-1(g)(11) for the definition of plan 
used for purposes of this section. That definition contains the 
exclusive rules for aggregation and disaggregation of plans for 
purposes of this section. See also paragraph (g)(1)(ii) of this section 
for rules requiring the aggregation of elective contributions under two 
or more plans in computing the actual deferral ratios of certain 
employees.
    (ii) Restructuring and Permissive Aggregation. Effective for plan 
years beginning after December 31, 1991, restructuring under 
Sec. 1.401(a)(4)-9(c) may not be used to demonstrate compliance with 
the requirements of section 401(k). See Sec. 1.401(a)(4)-9(c)(3)(ii). 
For plan years beginning before January 1, 1992, see Sec. 1.401(k)- 
1(h)(3)(iii). An employer may, however, treat a plan benefiting 
otherwise excludable employees as two separate plans for purposes of 
sections 401(k) and 410(b) in accordance with Secs. 1.410(b)-6(b)(3) 
and 1.410(b)-7(c)(3).
    (4) * * *
    (ii) Elective contributions and qualified nonelective contributions 
used to satisfy actual contribution percentage test. * * * A qualified 
nonelective contribution that is treated as a matching contribution is 
subject to the actual contribution percentage test of section 401(m)(2) 
and is not taken into account as an elective contribution under 
paragraph (b)(2) or (5) of this section.
* * * * *
    (iv) * * * See Secs. 1.401(a)(4)-1(b)(2)(ii)(B); 1.410(b)-7(c)(1).
    (5) * * *
    (i) * * * See Sec. 1.401(a)(4)-1(b)(2).
    (ii) * * * See Sec. 1.401(a)(4)-1(b)(2).
* * * * *
    (vi) For plan years beginning after December 31, 1988, or such 
later date provided in paragraph (h) of this section, the section 
401(k) plan and the plan or plans to which the qualified nonelective 
contributions and qualified matching contributions are made, could be 
aggregated under Sec. 1.410(b)-7(d) after application of the mandatory 
disaggregation rules of Sec. 1.410(b)-7(c), as modified in 
Sec. 1.401(k)-1(g)(11). If the plan year of the section 401(k) plan is 
changed to satisfy the requirement under Sec. 1.410(b)-7(d)(5) that 
aggregated plans have the same plan year, the qualified nonelective 
contributions and qualified matching contributions may be taken into 
account in the resulting short plan year only if the contributions 
satisfy the requirements of paragraph (b)(4)(i) of this section with 
respect to the short year as if the contributions were elective 
contributions and the aggregated plans could otherwise be aggregated 
for purposes of section 410(b).
    (6) * * *
* * * * *
    Example 2. (i) The facts are the same as in Example 1, except 
that elective contributions are made pursuant to a salary reduction 
agreement and no bonuses are paid. Employer X includes elective 
contributions in compensation as permitted under Sec. 1.414(s)-
1(c)(4)(i). See Sec. 1.401(k)-1(g)(2)(i). In addition, A defers 
$2,025. Thus, the compensation and elective contributions for A, B, 
and C are:

------------------------------------------------------------------------
                                                                Actual  
                                                 Elective      deferral 
           Employee             Compensation  contributions     ratio   
                                                              (percent) 
------------------------------------------------------------------------
A.............................       $30,000        $2,025          6.75
B.............................        15,000           750          5.00
C.............................        10,000           450          4.50
------------------------------------------------------------------------

* * * * *
    Example 3. (i) Employees D through L are eligible employees in 
Employer A's profit-sharing plan that contains a cash or deferred 
arrangement. Employer A includes elective contributions in 
compensation as permitted under Sec. 1.414(s)-1(c)(4)(i). Each 
eligible employee may elect to defer up to six percent of 
compensation under the cash or deferred arrangement. Employees D and 
E are highly compensated. The compensation, elective contributions, 
and actual deferral ratios of these employees for the 1989 plan year 
are shown below:

------------------------------------------------------------------------
                                                                Actual  
                                                 Elective      deferral 
           Employee             Compensation  contributions     ratio   
                                                              (percent) 
------------------------------------------------------------------------
D.............................      $100,000        $6,000             6
E.............................        80,000         4,000             5
F.............................        60,000         3,600             6
G.............................        40,000         1,600             4
H.............................        30,000         1,200             4
I.............................        20,000           600             3
J.............................        20,000           600             3
K.............................        10,000           300             3
L.............................         5,000           150             3
------------------------------------------------------------------------

* * * * *
    Example 4. (i) Employer D maintains a profit-sharing plan that 
contains a cash or deferred arrangement. Employer D includes 
elective contributions in compensation as permitted under 
Sec. 1.414(s)-1(c)(4)(i). The following amounts are contributed 
under the plan:
* * * * *
    (d) * * *
    (2) * * *
    (iv) * * *
    (A) * * *
    (3) Payment of tuition, related educational fees, and room and 
board expenses, for the next 12 months of post-secondary education for 
the employee, or the employee's spouse, children, or dependents (as 
defined in section 152); or
* * * * *
    (3) Rules applicable to distributions upon plan termination. A 
distribution may not be made under paragraph (d)(1)(iii) of this 
section if the employer establishes or maintains a successor plan. For 
purposes of this rule, the definition of the term ``employer'' 
contained in paragraph (g)(6) of this section is applied as of the date 
of plan termination, and a successor plan is any other defined 
contribution plan maintained by the same employer. However, if at all 
times during the 24-month period beginning 12 months before the 
termination, fewer than two percent of the employees who were eligible 
under the defined contribution plan that includes the cash or deferred 
arrangement as of the date of plan termination are eligible under the 
other defined contribution plan, the other plan is not a successor 
plan. The term ``defined contribution plan'' means a plan that is a 
defined contribution plan as defined in section 414(i), but does not 
include an employee stock ownership plan as defined in section 4975(e) 
or 409(a) or a simplified employee pension as defined in section 
408(k). A plan is a successor plan only if it exists at any time during 
the period beginning on the date of plan termination and ending 12 
months after distribution of all assets from the terminated plan.
    (4) * * * (i) Seller must maintain the plan. A distribution may be 
made under section 401(k)(10) and paragraph (d)(1) (iv) or (v) of this 
section only from a plan that the seller continues to maintain after 
the disposition. This requirement is satisfied if and only if the 
purchaser does not maintain the plan after the disposition. A purchaser 
maintains the plan of the seller if it adopts the plan or otherwise 
becomes an employer whose employees accrue benefits under the plan. A 
purchaser also maintains the plan if the plan is merged or consolidated 
with, or any assets or liabilities are transferred from the plan to a 
plan maintained by the purchaser in a transaction subject to section 
414(l)(1). A purchaser is not treated as maintaining the plan merely 
because a plan that it maintains accepts elective transfers described 
in Sec. 1.411(d)-4, Q&A-3(b)(1), or rollover contributions of amounts 
distributed by the plan (including distributions that the recipient 
elects, under section 401(a)(31), to have paid in a direct rollover to 
the plan of the purchaser).
* * * * *
    (5) * * * The term lump sum distribution has the meaning provided 
in section 402(d)(4), without regard to subparagraphs (A) (i) through 
(iv), (B), and (F) of that section.
    (6) * * *
    (iv) * * * The limitations of paragraph (d) of this section also do 
not apply to amounts distributed from another plan that the recipient 
elects under section 401(a)(31) to have paid in a direct rollover to 
the plan.
* * * * *
    (e) * * *
    (6) * * *
    (ii) * * * Benefits under any other plan or arrangement (whether or 
not qualified) are not contingent upon an employee's electing to make 
or not to make elective contributions under a cash or deferred 
arrangement merely because the elective contributions are or are not 
taken into account as compensation under the other plan or arrangement 
for purposes of determining benefits.
* * * * *
    (vi) Examples. The provisions of this paragraph (e)(6) are 
illustrated by the following examples.

    Example 1. Employer T maintains a cash or deferred arrangement 
for all of its employees. Employer T also maintains a nonqualified 
deferred compensation plan for two highly paid executives, Employees 
R and C. Under the terms of the nonqualified deferred compensation 
plan, R and C are eligible to participate only if they do not make 
elective contributions under the cash or deferred arrangement. 
Participation in the nonqualified plan is a contingent benefit for 
purposes of this paragraph (e)(6), because R's and C's participation 
is conditioned on their electing not to make elective contributions 
under the cash or deferred arrangement.
    Example 2. Employer T maintains a cash or deferred arrangement 
for all its employees. Employer T also maintains a nonqualified 
deferred compensation plan for two highly paid executives, Employees 
R and C. Under the terms of the arrangements, Employees R and C may 
defer a maximum of 10 percent of their compensation, and may 
allocate their deferral between the cash or deferred arrangement and 
the nonqualified deferred compensation plan in any way they choose 
(subject to the overall 10 percent maximum). Because the maximum 
deferral available under the nonqualified deferred compensation plan 
depends on the elective deferrals made under the cash or deferred 
arrangement, the right to participate in the nonqualified plan is a 
contingent benefit for purposes of paragraph (e)(6).

    (7) Coordination with other plans. For plan years beginning after 
December 31, 1988, or such later date provided in paragraph (h) of this 
section, a cash or deferred arrangement satisfies this paragraph (e) 
only if no elective contributions (or qualified matching contributions 
treated as elective contributions under paragraph (b)(5) of this 
section) under the arrangement are taken into account for purposes of 
determining whether any other contributions under any plan (including 
the plan to which the elective contributions are made) satisfy the 
requirements of section 401(a). Indeed, the portion of a plan that 
consists of elective contributions is treated as a separate plan for 
purposes of sections 401(a)(4) and 410(b). See Sec. 1.410(b)-7(c)(1). 
Similarly, elective contributions under a cash or deferred arrangement 
generally may not be taken into account in determining whether a plan 
satisfies the minimum contribution or benefit requirements of section 
416. See Sec. 1.416-1, M-20. However, qualified nonelective 
contributions that are treated as elective contributions for purposes 
of section 401(k)(3) under paragraph (b)(5) of this section may be used 
to enable a plan to satisfy the minimum contribution or benefit 
requirements under section 416. See Sec. 1.416-1, M-18. This paragraph 
(e) does not apply for purposes of determining whether a plan satisfies 
the average benefit percentage requirement of section 410(b)(2)(A)(ii). 
See also Sec. 1.401(m)-1(b)(5) for circumstances under which elective 
contributions may be used to determine whether a plan satisfies the 
requirements of section 401(m).
* * * * *
    (f) * * *
    (1) * * *
* * * * *
    (iii) Impermissible correction methods. Excess contributions for a 
plan year may not remain unallocated or be allocated to a suspense 
account for allocation to one or more employees in any future year. In 
addition, excess contributions may not be corrected using the 
retroactive correction rules of Sec. 1.401(a)(4)-11(g). See 
Sec. 1.401(a)(4)-11(g) (3)(vii) and (5). See paragraph (f)(6) of this 
section for the effects of a failure to correct excess contributions.
    (2) Amount of excess contributions. The amount of excess 
contributions for a highly compensated employee for a plan year is the 
amount (if any) by which the employee's elective contributions must be 
reduced for the employee's actual deferral ratio to equal the highest 
permitted actual deferral ratio under the plan. To calculate the 
highest permitted actual deferral ratio under a plan, the actual 
deferral ratio of the highly compensated employee with the highest 
actual deferral ratio is reduced by the amount required to cause the 
employee's actual deferral ratio to equal the ratio of the highly 
compensated employee with the next highest actual deferral ratio. If a 
lesser reduction would enable the arrangement to satisfy the actual 
deferral percentage test, only this lesser reduction may be made. This 
process must be repeated until the cash or deferred arrangement 
satisfies the actual deferral percentage test. The highest actual 
deferral ratio remaining under the plan after leveling is the highest 
permitted actual deferral ratio. Thus, for each highly compensated 
employee, the amount of excess contributions for a plan year is equal 
to the employee's elective contributions, plus qualified nonelective 
contributions and qualified matching contributions taken into account 
in determining the employee's actual deferral ratio under paragraph 
(g)(1) of this section, minus the amount determined by multiplying the 
employee's actual deferral ratio (determined after application of this 
paragraph (f)(2)) by the compensation used in determining the ratio. In 
no case may the amount of excess contributions to be recharacterized or 
distributed for a plan year with respect to any highly compensated 
employee exceed the amount of elective contributions made on behalf of 
the highly compensated employee for the plan year.
    (3) * * *
    (ii) Treatment of recharacterized excess contributions.
    (A) Excess contributions recharacterized under this paragraph 
(f)(3) are includable in the employee's gross income on the earliest 
dates any elective contribution made on behalf of the employee during 
the plan year would have been received by the employee had the employee 
originally elected to receive the amounts in cash, or on such later 
date permitted in paragraph (f)(3)(iv) of this section. The 
recharacterized excess contributions must be treated as employee 
contributions for purposes of section 72, section 401(a)(4) and 401(m), 
and paragraphs (b) and (d) of this section. This requirement is not 
treated as satisfied unless:
    (1) The payor or plan administrator reports the recharacterized 
excess contributions as employee contributions to the Internal Revenue 
Service and the employee by--
    (i) Timely providing such forms as the Commissioner may designate 
to the employer and to employees whose excess contributions are 
recharacterized under this paragraph (f)(3); and
    (ii) Timely taking such other action as the Commissioner may 
require; and
    (2) The plan administrator accounts for the amounts as 
contributions by the employee for purposes of sections 72 and 6047.
    (B) Recharacterized excess contributions continue to be treated as 
employer contributions that are elective contributions for all other 
purposes under the Internal Revenue Code, including sections 401(a) 
(other than 401(a)(4) and 401(m)), 404, 409, 411, 412, 415, 416, and 
417. Thus, for example, recharacterized excess contributions remain 
subject to the requirements of paragraph (c) of this section; must be 
deducted under section 404; and are treated as employer contributions 
described in section 415(c)(2)(A) and Sec. 1.415-6(b). In addition, 
these amounts are not treated as compensation for purposes of sections 
404 and 415, and may be treated as compensation for purposes of 
sections 401(a)(4), 401(a)(5), 401(k), 401(l) and 414(s) only to the 
extent that elective contributions may be treated, and are treated 
under the plan, as compensation. See Sec. 1.414(s)-1(c)(4)(i). 
Recharacterized excess contributions that relate to plan years ending 
on or before October 24, 1988, may be treated as either employer 
contributions or employee contributions for purposes of paragraph (d) 
of this section. The amount of excess contributions included in an 
employee's gross income is reduced as provided under paragraph 
(f)(5)(i)(B) of this section.
    (iii) * * *
    (C) Plans under which excess contributions may be recharacterized. 
For plan years beginning after December 31, 1991, elective 
contributions may be recharacterized under this paragraph (f)(3) only 
under the plan under which they are made or under a plan with which 
that plan could be aggregated under Sec. 1.410(b)-7(d) after 
application of the mandatory disaggregation rules of Sec. 410(b)-7(c), 
as modified in Sec. 1.401(k)-1(g)(11). For plan years beginning before 
that date and after December 31, 1988, or such later date provided 
under paragraph (h) of this section, elective contributions may be 
recharacterized under this paragraph (f)(3) only under the plan under 
which they are made or under a plan with the same plan year as that 
plan.
* * * * *
    (v) * * *

    Example. (i) Employer X maintains Plan Y, a calendar year 
profit-sharing plan that includes a qualified cash or deferred 
arrangement. Under Plan Y, each eligible employee may elect to defer 
up to 10 percent of compensation under a salary reduction agreement. 
An eligible employee may also make employee contributions of up to 
10 percent of compensation. X pays the amounts deferred to the trust 
on the last day of each month. Employer X includes elective 
contributions in compensation as permitted under Sec. 1.414(s)-
1(c)(4)(i). See Sec. 1.401(k)-1(g)(2)(i). Salaries are paid on the 
same date.

* * * * *
    (4) * * *
    (ii) * * *
    (B) Method of allocating income. A plan may use any reasonable 
method for computing the income allocable to excess contributions, 
provided that the method does not violate section 401(a)(4), is used 
consistently for all participants and for all corrective distributions 
under the plan for the plan year, and is used by the plan for 
allocating income to participants' accounts. See Sec. 1.401(a)(4)-
1(c)(8).
* * * * *
    (7) * * *

    Example 1. (i) The Y corporation maintains a cash or deferred 
arrangement. The plan year is the calendar year. For plan year 1989, 
all 10 of Y's employees are eligible to participate in the cash or 
deferred arrangement. The Y corporation includes elective 
contributions in compensation as permitted under Sec. 1.414(s)-
1(c)(4)(i). See Sec. 1.401(k)-1(g)(2)(i). The employees' 
compensation, elective contributions, and actual deferral ratios are 
shown in the following table:

------------------------------------------------------------------------
                                                               Actual   
                                                Elective      deferral  
           Employee            Compensation  contributions   ratio (ADR)
                                                              (percent  
------------------------------------------------------------------------
A............................      $160,000        $6,400           4.0 
B............................       140,000         7,000           5.0 
C............................        70,000         7,000          10.0 
D............................        65,000         6,500          10.0 
E............................        42,000         2,100           5.0 
F............................        35,000         3,500          10.0 
G............................        28,000         2,800          10.0 
H............................        21,000           700           3.33
I............................        21,000             0           0   
J............................        21,000             0           0   
------------------------------------------------------------------------

* * * * *
    Example 2. A, B, and C are highly compensated employees of 
Employer R. Employer R maintains a cash or deferred arrangement. 
Employer R includes elective contributions in compensation as 
permitted under Sec. 1.414(s)-1(c)(4)(i). For the plan year 1990, A, 
B, and C each earns compensation of $100,000 and contributes $7,000 
to the plan during the period January through June. B retires in 
November of 1990 and makes a withdrawal of B's entire account 
balance of $200,000. In January of 1991, R computes the ADP test for 
its employees and learns that the highly compensated employees 
should have contributed only five percent of compensation. Since B 
made a contribution of $7,000 for 1990, B's contribution and 
compensation are used in determining the ADP despite the subsequent 
$200,000 withdrawal. A, B, and C must each receive a corrective 
distribution of $2,000 in order to meet the ADP test. Since B has 
already withdrawn B's total account balance under the plan, only A 
and C must receive a distribution of $2,000 each in order for the 
plan to meet the ADP test of section 401(k)(3)(A)(ii). Pursuant to 
the 1990 Form 1099-R Instructions, the plan must issue two Forms 
1099-R to B, one reporting the portion of the distribution that was 
necessary to correct the excess contribution (including income), and 
one reporting the balance of the distribution. If B had withdrawn 
less than the total account balance, B would have to withdraw the 
lesser of $2,000 or the remaining account balance.
    Example 3. Individual A has a child, B. Both participate in a 
cash or deferred arrangement maintained by Employer X. A is one of 
the 10 most highly compensated employees and B is a nonhighly 
compensated employee. Employer X includes elective contributions in 
compensation as permitted under Sec. 1.414(s)-1(c)(4)(i). A has 
compensation of $100,000 and defers $7,000 under the cash or 
deferred arrangement; B has compensation of $40,000 and defers 
$4,000 under the arrangement. The actual deferral ratio of the 
family unit is 7.86 percent, calculated by aggregating the 
contributions and compensation of A and B ($7,000 + $4,000)/
($100,000 + $40,000). For the plan, it is determined that under 
Sec. 1.401(k)-1(f)(2), the actual deferral ratio of the aggregate 
family unit must be reduced to 7.20 percent. This reduction is 
applied in proportion to A's and B's contributions. The excess 
contributions are $920 ($11,000 total contributions minus $10,080 
(7.20% x $140,000)). A's share of the excess contributions is 
$585.45 ($7,000/$11,000 x $920); B's share is $334.55 ($4,000/
$11,000 x $920).
* * * * *
    (g) * * *
    (1) * * *
    (ii) * * *
    (B) * * * (1) Highly compensated employees. For plan years 
beginning after December 31, 1984, the actual deferral ratio of a 
highly compensated employee who is eligible to participate in more than 
one cash or deferred arrangement of the same employer is generally 
calculated by treating all the cash or deferred arrangements in which 
the employee is eligible to participate as one arrangement. However, 
plans that are not permitted to be aggregated under Sec. 1.410(b)-7(c), 
as modified in paragraph (g)(11) of this section, are not aggregated 
for this purpose. For example, if a highly compensated employee with 
compensation of $80,000 could make elective contributions under two 
separate cash or deferred arrangements, the actual deferral ratio for 
the employee under each arrangement would generally be calculated by 
dividing the total elective contributions by the employee under both 
arrangements by $80,000. If one of the cash or deferred arrangements 
were part of an ESOP, however, while the other was not, the actual 
deferral percentage of the employee under each arrangement would be 
calculated by dividing the employee's elective contributions under each 
arrangement by $80,000 because the ESOP portion is mandatorily 
disaggregated from the non-ESOP portion.
* * * * *
    (C) * * * (1) Aggregation of elective contributions and other 
amounts. For plan years beginning after December 31, 1986, or any later 
date provided in paragraph (h) of this section, if a highly compensated 
employee is subject to the family aggregation rules of section 
414(q)(6) because that employee is either a five-percent owner or one 
of the 10 most highly compensated employees, the combined actual 
deferral ratio for the family group (which is treated as one highly 
compensated employee) must be determined by combining the elective 
contributions, compensation, and amounts treated as elective 
contributions of all family members.
* * * * *
    (2) * * * (i) Years beginning after December 31, 1986. For plan 
years beginning after December 31, 1986, or such later date provided in 
paragraph (h) of this section, the term compensation means compensation 
as defined in section 414(s) andP Sec. 1.414(s)-1. The period used to 
determine an employee's compensation for a plan year must be either the 
plan year or the calendar year ending within the plan year. Whichever 
period is selected must be applied uniformly to determine the 
compensation of every eligible employee under the plan for that plan 
year for purposes of this section. An employer may, however, limit the 
period taken into account under either method to that portion of the 
plan year or calendar year in which the employee was an eligible 
employee, provided that this limit is applied uniformly to all eligible 
employees under the plan for the plan year for purposes of this 
section. See also section 401(a)(17) and Sec. 1.401(a)(17)-1(c)(1).
* * * * *
    (4) * * *
    (ii) * * * In no event is an election made after December 23, 1994 
treated as a one-time irrevocable election under this paragraph if the 
election is made by an employee who previously became eligible under 
another plan (whether or not terminated) of the employer.
    (5) Employee. The term employee means an employee within the 
meaning of Sec. 1.410(b)-9.
    (6) Employer. The term employer means the employer within the 
meaning of Sec. 1.410(b)-9.
* * * * *
    (11) Plan--(i) Application of section 410(b) rules. The term plan 
means a plan within the meaning ofP Sec. 1.410(b)-7 (a) and (b), after 
application of the mandatory disaggregation rules of Sec. 1.410(b)-7(c) 
and the permissive aggregation rules of Sec. 1.410(b)-7(d), with the 
modifications provided in paragraph (g)(11)(ii) of this section. Thus, 
for example, two plans (within the meaning of Sec. 1.410(b)-7(b)) that 
are treated as a single plan pursuant to the permissive aggregation 
rules of Sec. 1.410(b)-7(d) are treated as a single plan for purposes 
of section 401(k). See also Sec. 1.401(k)-1(b)(3)(ii).
    (ii) Modifications to section 410(b) rules--(A) In general. For 
purposes of this paragraph (g)(11), Sec. 1.410(b)-7 (c) and (d) are 
applied without regard to Sec. 1.410(b)-7(c)(1), relating to section 
401(k) and 401(m) plans.
    (B) Plans benefiting collective bargaining unit employees. A plan 
that benefits employees who are included in a unit of employees covered 
by a collective bargaining agreement and employees who are not included 
in such a collective bargaining unit is treated as comprising separate 
plans. This paragraph (g)(11)(ii)(B) is generally applied separately 
with respect to each collective bargaining unit. At the option of the 
employer, however, two or more separate collective bargaining units can 
be treated as a single collective bargaining unit, provided that the 
combinations of units are determined on a basis that is reasonable and 
reasonably consistent from year to year. Thus, for example, if a plan 
benefits employees in three categories--employees included in 
collective bargaining unit A, employees included in collective 
bargaining unit B, and employees who are not included in any collective 
bargaining unit--the plan can be treated as comprising three separate 
plans, each of which benefits only one category of employees. However, 
if collective bargaining units A and B are treated as a single 
collective bargaining unit, the plan will be treated as comprising only 
two separate plans, one benefiting all employees who are included in a 
collective bargaining unit and another benefiting all other employees. 
Similarly, if a plan benefits only employees who are included in 
collective bargaining unit A and employees who are included in 
collective bargaining unit B, the plan can be treated as comprising two 
separate plans. However, if collective bargaining units A and B are 
treated as a single collective bargaining unit, the plan will be 
treated as a single plan. An employee is treated as included in a unit 
of employees covered by a collective bargaining agreement if and only 
if the employee is a collectively bargained employee within the meaning 
of Sec. 1.410(b)-6(d)(2).
    (C) Multiemployer plans. Consistent with section 413(b), the 
portion of the plan that is maintained pursuant to a collective 
bargaining agreement (within the meaning of Sec. 1.413-1(a)(2)) is 
treated as a single plan maintained by a single employer that employs 
all the employees benefiting under the same benefit computation formula 
and covered pursuant to that collective bargaining agreement. The rules 
of paragraph (g)(11)(ii)(B) of this section (including the optional 
aggregation of collective bargaining units) apply to the resulting 
deemed single plan in the same manner as they would to a single 
employer plan, except that the plan administrator is substituted for 
the employer where appropriate and appropriate fiduciary obligations 
are taken into account. The noncollectively bargained portion of the 
plan is treated as maintained by one or more employers, depending on 
whether the noncollective bargaining unit employees who benefit under 
the plan are employed by one or more employers.
* * * * *
    (15) Section 401(k) plan. The term section 401(k) plan means a 
section 401(k) plan within the meaning of Sec. 1.410(b)-9.
    (16) Section 401(m) plan. The term section 401(m) plan means a 
section 401(m) plan within the meaning of Sec. 1.410(b)-9.
    (h) * * *
    (3) * * *
    (iii) * * * (A) General rule. In determining whether the 
requirements of section 401(k) are satisfied for plan years beginning 
before January 1, 1992, a plan may be treated as consisting of two or 
more component plans, each consisting of all of the allocations and 
other benefits, rights, and features provided to a group of employees 
under the plan. See Sec. 1.401(a)(4)-9(c). An employee may not be 
included in more than one component plan of the same plan for a plan 
year under this method. If this method is used for a plan year, the 
requirements of section 401(k) are applied separately with respect to 
each component plan for the plan year. Thus, for example, the actual 
deferral ratio and the amount of excess contributions, if any, of each 
eligible employee under each component plan must be determined as if 
the component plan were a separate plan. This method applies solely for 
purposes of section 401(k). Thus, for example, the requirements of 
section 410(b) must still be satisfied by the entire plan.
    (B) * * *
    (2) Commonality requirement. The group of employees used to 
identify a component plan must share some common attribute or 
attributes, other than similar actual deferral ratios. Permissible 
common attributes include, for example, employment at the same work 
site, in the same job category, for the same division or subsidiary, or 
for a unit acquired in a specific merger or acquisition, employment for 
the same number of years, compensation under the same method, e.g., 
salaried or hourly, coverage under the same contribution formula, and 
attributes that could be used as the basis of a classification that 
would be treated as reasonable under Sec. 1.410(b)-4(b). Employees 
whose only common attribute is the same or similar actual deferral 
ratios, or another attribute having substantially the same effect as 
the same or similar actual deferral ratios, are not considered as 
sharing a common attribute for this purpose. This rule applies 
regardless of whether the component plan or the plan of which it is a 
part satisfies the ratio or percentage test of section 410(b).
    (4) * * *
    (ii) Plan years beginning before January 1, 1996. The following 
rules apply to a governmental plan described in section 414(d) that is 
not a collectively bargained plan and includes a nonqualified cash or 
deferred arrangement. These rules apply for plan years beginning before 
the later of January 1, 1996, or 90 days after the opening of the first 
legislative session beginning on or after January 1, 1996, of the 
governing body with authority to amend the plan, if that body does not 
meet continuously. For purposes of this paragraph (b)(1), the term 
governing body with authority to amend the plan means the legislature, 
board, commission, council, or other governing body with authority to 
amend the plan.
* * * * *
    Par. 4. Section 1.401(m)-0 is amended as follows:
    1. The entry for Sec. 1.401(m)-1, paragraph (b)(3)(ii) is removed.
    2. The entry for Sec. 1.401(m)-1, paragraph (b)(3)(iii) is revised 
and redesignated (b)(3)(ii).
    3. The entry for Sec. 1.401(m)-1, paragraph (b)(4)(ii)(B) is 
revised.
    4. An entry for Sec. 1.401(m)-1, paragraph (e)(3)(vii) is added.
    5. Entries for Sec. 1.401(m)-1, paragraph (f)(16) and (17) are 
added.
    The added and revised entries read as follows:


Sec. 1.401(m)-0  Employee and matching contributions, table of 
contents.

* * * * *

Sec. 1.401(m)-1 * * *

* * * * *
    (b) * * *
    (3) * * *
    (ii) Restructuring and Permissive Disaggregation.
    (4) * * *
    (ii) * * *
    (B) Matching contributions and qualified nonelective 
contributions used to satisfy actual deferral percentage test.
* * * * *
    (e) * * *
    (3) * * *
    (vii) No corrective distribution of matching contributions other 
than excess aggregate contributions.
* * * * *
    (f) * * *
    (16) Section 401(k) plan.
    (17) Section 401(m) plan.
* * * * *
    Par. 5. Section 1.401(m)-1 is amended as follows:
    1. Paragraph (a) is revised.
    2. Paragraph (b) is amended as follows:
    i. Paragraph (b)(1) is revised.
    ii. Paragraphs (b)(3)(i) and (b)(3)(ii) are revised.
    iii. Paragraph (b)(3)(iii) is removed.
    iv. A sentence is added at the end of paragraph (b)(4)(ii)(A).
    v. Paragraph (b)(4)(ii)(B) is revised.
    vi. Paragraph (b)(5) (i) and (ii) are amended by adding a sentence 
at the end.
    vii. Paragraph (b)(5)(v) is revised.
    3. Paragraph (c)(1) is revised.
    4. Paragraph (d) is amended as follows:
    i. Paragraph (i) of Example 3 is revised.
    ii. Paragraph (i) of Example 4 is revised.
    5. Paragraph (e) is amended as follows:
    i. Paragraph (e)(1)(iii) is revised.
    ii. A sentence is added at the end of paragraph (e)(3)(ii)(B).
    iii. Paragraph (e)(3)(vii) is added.
    iv. Paragraph (e)(4) is revised.
    v. Paragraph (e)(6) is amended as follows:
    a. Examples 2 through 6 are revised.
    b. Example 8 is added.
    6. Paragraph (f) is amended as follows:
    i. Paragraphs (f)(1)(ii) (B) and (C)(1), and (f)(2) are revised.
    ii. A sentence is added at the end of paragraph (f)(4)(ii).
    iii. Paragraph (f)(12)(i)(B) is revised.
    iv. Paragraphs (f) (16) and (17) are added.
    7. Paragraph (g)(4), (g)(5)(ii) (A) and (B)(2) are revised.
    The added and revised provisions read as follows:


Sec. 1.401(m)-1  Employee and matching contributions.

    (a) General Rules--(1) Nondiscriminatory amount of contributions. A 
defined contribution plan does not satisfy section 401(a)(4) for a plan 
year unless the amount of employee and matching contributions to the 
plan for the plan year satisfies section 401(a)(4). See 
Sec. 1.401(a)(4)-1(b)(2)(ii). Except as specifically provided 
otherwise, for plan years beginning after December 31, 1986 (or such 
later date provided in paragraph (g) of this section) the amount of 
employee and matching contributions under a plan satisfies the 
requirements of section 401(a)(4) only if the employee and matching 
contributions under the plan satisfy the actual contribution percentage 
test of section 401(m)(2) and paragraph (b) of this section. See 
Sec. 1.401(a)(4)-1(b)(2)(ii)(B). Also, except as specifically provided 
otherwise, for plan years beginning after December 31, 1988 (or such 
later date provided in Sec. 1.401(m)-2(d)), the amount of employee and 
matching contributions under a plan satisfies the requirements of 
sections 401(m) and 401(a)(4) only if any multiple use of the 
alternative methods of compliance with sections 401 (k) and (m) 
(contained in sections 401(k)(3)(A)(ii)(II) and 401(m)(2)(A)(ii), 
respectively) is corrected under Sec. 1.401(m)- 2(c). See section 
401(m)(9) and Sec. 1.401(m)-2. For these purposes, the employee and 
matching contributions are combined with the elective and qualified 
nonelective contributions, if any, that are treated as matching 
contributions, and the recharacterized elective contributions, if any, 
that are treated as employee contributions for purposes of section 
401(m).
    (2) Other nondiscrimination rules. Nondiscrimination requirements 
in addition to those described in paragraph (a)(1) of this section 
apply to employee and matching contributions under sections 401(a)(4) 
and 410(b). For example, under section 401(a)(4) a plan may not 
discriminate with respect to the availability of benefits, rights, and 
features under the plan. See Sec. 1.401(a)(4)-1(b)(3). The right to 
make each level of employee contributions, and the right to each level 
of matching contributions, are benefits, rights, or features subject to 
this requirement, and each level must therefore generally be available 
to a group of employees that satisfies section 410(b). See 
Sec. 1.401(a)(4)-4(e)(3) (i) and (iii) (F) through (G). Thus, for 
example, a plan does not satisfy section 401(a)(4) if it provides a 
higher rate of matching contributions for highly compensated employees 
than for nonhighly compensated employees. See paragraph (e)(4) of this 
section for rules relating to the application of section 401(a)(4) to 
the correction of excess aggregate contributions. See Sec. 1.401(a)(4)-
11(g)(3)(vii) for special rules relating to correction of violations of 
the minimum coverage requirements or discriminatory rates of match in a 
section 401(m) plan. For special rules governing the application of 
section 410(b) to employee and matching contributions, see 
Secs. 1.410(b)-7(c)(1) and 1.410(b)-8(a)(1).
    (3) Rules applicable to collectively bargained plans. The 
requirements of this section are treated as satisfied by employee and 
matching contributions under a collectively bargained plan (or the 
portion of a plan) that automatically satisfies section 410(b). See 
Secs. 1.401(a)(4)-1(c)(5) and 1.410(b)-2(b)(7). There are no excess 
aggregate contributions under a plan (or a portion of a plan) that is 
treated under this paragraph (a)(3) as satisfying the requirements of 
this section. Thus, the provisions of section 4979 and Sec. 54.4979-1 
of this chapter do not apply to contributions described in the first 
sentence of this paragraph (a)(3).
    (b) Actual contribution percentage test--(1) General rule. (i) For 
plan years beginning after December 31, 1986, or such later date 
provided in paragraph (g) of this section, the actual contribution 
percentage test is satisfied if--
    (A) The actual contribution percentage for the group of eligible 
highly compensated employees is not more than the actual contribution 
percentage for the group of all other eligible employees multiplied by 
1.25; or
    (B) The excess of the actual contribution percentage for the group 
of eligible highly compensated employees over the actual contribution 
percentage for the group of all other eligible employees is not more 
than two percentage points, and the actual contribution percentage for 
the group of eligible highly compensated employees is not more than the 
actual contribution percentage for the group of all other eligible 
employees multiplied by two.
    (ii) A plan does not fail to satisfy the requirements of this 
paragraph (b)(1) merely because all of the eligible employees under the 
plan for a year are highly compensated employees.
* * * * *
    (3) * * * (i) General rule. See Sec. 1.401(m)-1(f)(14) for the 
definition of a plan used for purposes of this section and 
Sec. 1.401(m)-2. That definition contains the exclusive rules for 
aggregation and disaggregation of plans for purposes of this section 
and Sec. 1.401(m)-2.
    (ii) Restructuring and Permissive Disaggregation. Effective for 
plan years beginning after December 31, 1991, restructuring under 
Sec. 1.401(a)(4)-9(c) may not be used to demonstrate compliance with 
the requirements of section 401(m). See Sec. 1.401(a)(4)- 9(c)(3)(ii). 
For plan years beginning before January 1, 1992, see Sec. 1.401(m)-
1(g)(5)(ii). An employer may, however, treat a plan benefiting 
otherwise excludable employees as two separate plans for purposes of 
sections 401(m) and 410(b) in accordance with Secs. 1.410(b)-6(b)(3) 
and 1.410(b)-7(c)(3).
    (4) * * *
    (ii) * * * (A) * * * See Secs. 1.401(a)(4)-1(b)(2)(ii)(B); 
1.410(b)-7(c)(1).
    (B) Matching contributions and qualified nonelective contributions 
used to satisfy actual deferral percentage test. A matching 
contribution that is treated as an elective contribution is subject to 
the actual deferral percentage test of section 401(k)(3) and is not 
taken into account under paragraph (b)(1) of this section. See 
Sec. 1.401(k)-1(b)(5)(iii) for the rule relating to years before 
January 1, 1987. A qualified nonelective contribution that is treated 
as an elective contribution is subject to the actual deferral 
percentage test of section 401(k)(3) and is not taken into account as a 
matching contribution under paragraph (b)(1) or (5) of this section.
* * * * *
    (5) * * *
    (i) * * * See Sec. 1.401(a)(4)-1(b)(2).
    (ii) * * * See Sec. 1.401(a)(4)-1(b)(2).
* * * * *
    (v) For plan years beginning after December 31, 1988, or such later 
date provided in paragraph (g) of this section, the plan that takes 
qualified nonelective contributions and elective contributions into 
account in determining whether employee and matching contributions 
satisfy the requirements of section 401(m)(2)(A), and the plans to 
which the qualified nonelective contributions and elective 
contributions are made, could be aggregated under Sec. 1.410(b)-7(d) 
after application of the mandatory disaggregation rules of 
Sec. 1.410(b)-7(c), as modified in Sec. 1.401(k)-1(g)(11). If the plan 
year of the section 401(m) plan is changed to satisfy the requirement 
under Sec. 1.410(b)-7(d)(5) that the aggregated plans have the same 
plan year, the elective contributions may be taken into account in the 
resulting short plan year only if these contributions satisfy the 
requirements of Sec. 1.401(k)-1(b)(4) with respect to the short year, 
and the qualified nonelective contributions may be taken into account 
in the resulting short plan year only if these contributions satisfy 
the requirements of Sec. 1.401(k)-1(b)(4)(i)(A) with respect to the 
short year as if they were elective contributions.
    (c) * * * (1) Coordination with other plans. Except as expressly 
permitted under section 401(k) or 401(m), for plan years beginning 
after December 31, 1988, or such later date provided in paragraph (g) 
of this section, employee or matching contributions (or elective 
contributions treated as matching contributions under paragraph (b)(5) 
of this section) may not be taken into account for purposes of 
determining whether any other contributions under any plan (including 
the plan to which the employee or matching contributions are made) 
satisfy the requirements of section 401(a). Indeed, the portion of a 
plan that consists of employee and matching contributions is treated as 
a separate plan for purposes of sections 401(a)(4) and 410(b). See 
Sec. 1.410(b)-7(c)(1). Similarly, although matching contributions and 
qualified nonelective contributions may be used to enable a plan to 
satisfy the minimum contribution or benefit requirements under section 
416, matching contributions that are used in this way are not treated 
as matching contributions, and must therefore satisfy the 
nondiscrimination requirements of section 401(a)(4) without regard to 
section 401(k) or 401(m). See Sec. 1.416-1, M-18 & M-19 and paragraph 
(f)(12)(iii) of this section. See also Sec. 1.401(k)-1(b)(5) for 
circumstances under which matching contributions may be used to 
determine whether a plan satisfies the requirements of section 401(k). 
This paragraph does not apply for purposes of determining whether a 
plan satisfies the average benefit percentage test of section 
410(b)(2)(A)(ii).
* * * * *
    (d) * * *

    Example 3. (i) Employer N maintains a plan that contains a cash 
or deferred arrangement and permits employee contributions. Employer 
N includes elective contributions in compensation as permitted under 
Sec. 1.414(s)-1(c)(4)(i). See Sec. 1.401(k)-1(g)(2)(i). For the 1988 
plan year, the average percentages of compensation contributed to 
the plan by the highly compensated and nonhighly compensated 
employees as elective contributions and employee contributions are 
shown in the chart below. Elective contributions meet the 
requirements of paragraph (b)(5) of this section.

------------------------------------------------------------------------
                                               Elective       Employee  
                                            Contributions  Contributions
                                              (percent)      (percent)  
------------------------------------------------------------------------
Highly compensated........................           10             10  
Nonhighly compensated.....................           10              6  
------------------------------------------------------------------------

* * * * *
    Example 4. (i) Employer P maintains a plan that includes a cash 
or deferred arrangement. Elective contributions, qualified 
nonelective contributions (QNCs), employee contributions, and 
matching contributions are made to the plan. Employer P includes 
elective contributions in compensation as permitted under 
Sec. 1.414(s)-1(c)(4)(i). The elective contributions and QNCs meet 
the requirements of paragraph (b)(5) of this section. For the 1989 
plan year, the QNCs, elective contributions, and employee and 
matching contributions, expressed as a percentage of compensation, 
are shown in the following table:

------------------------------------------------------------------------
                                                             Employee/  
                                   QNCs        Elective       Matching  
                                (percent)   Contributions  Contributions
                                              (percent)      (percent)  
------------------------------------------------------------------------
Highly compensated...........            3             5              6 
Nonhighly compensated........            3             4              2 
------------------------------------------------------------------------

* * * * *
    (e) * * *
    (1) * * *
    (iii) Impermissible correction methods. Excess aggregate 
contributions may not be corrected by forfeiting vested matching 
contributions, recharacterizing matching contributions, or not making 
matching contributions required under the terms of the plan. Excess 
aggregate contributions for a plan year may not remain unallocated or 
be allocated to a suspense account for allocation to one or more 
employees in any future year. In addition, excess aggregate 
contributions may not be corrected using the retroactive correction 
rules of Sec. 1.401(a)(4)-11(g). See Sec. 1.401(a)(4)-11(g)(3)(vii) and 
(5). See paragraph (e)(5) of this section for the effects of a failure 
to correct excess aggregate contributions. See Sec. 1.411(a)-4(b)(7) 
regarding permissible forfeitures of matching contributions.
* * * * *
    (3) * * *
    (ii) * * *
    (B) * * * See Sec. 1.401(a)(4)-1(c)(8).
* * * * *
    (vii) No corrective distribution of matching contributions other 
than excess aggregate contributions. A matching contribution that is an 
excess aggregate contribution may be distributed as provided in section 
401(m)(6) and Sec. 1.401(m)-1(e)(3). A matching contribution may not be 
distributed merely because the contribution to which it relates is 
treated as an excess contribution, excess deferral, or excess aggregate 
contribution. See Secs. 1.401(k)-1(f)(5)(iii) and 1.411(a)-4(b)(7) 
regarding permissible forfeitures of matching contributions that relate 
to excess contributions, excess deferrals, or excess aggregate 
contributions.
    (4) Coordination with section 401(a)(4). A matching contribution is 
taken into account under section 401(a)(4) even if it is distributed, 
unless the distributed contribution is an excess aggregate 
contribution. However, the method of distributing excess aggregate 
contributions provided in the plan must satisfy the requirements of 
section 401(a)(4). This requires that after correction each level of 
matching contributions be currently and effectively available to a 
group of employees that satisfies section 410(b). See Sec. 1.401(a)(4)-
4(e)(3)(iii)(G). Thus, a plan that provides the same rate of matching 
contributions to all employees will not meet the requirements of 
section 401(a)(4) if employee contributions are distributed under this 
paragraph (e) to highly compensated employees to the extent needed to 
meet the requirements of section 401(m)(2), while matching 
contributions attributable to employee contributions remain allocated 
to the highly compensated employees' accounts. See Sec. 1.411(a)-
4(b)(7) for a rule that allows forfeiture of these matching 
contributions to avoid a violation of section 401(a)(4). See also 
Sec. 1.401(a)(4)-11(g)(3)(vii)(B) regarding the use of additional 
allocations to the accounts of nonhighly compensated employees for the 
purpose of correcting a discriminatory rate of matching contributions. 
A method of distributing excess aggregate contributions will not be 
considered discriminatory solely because, in accordance with the terms 
of the plan, unmatched employee contributions that exceed the highest 
rate at which employee contributions are matched are distributed before 
matched employee contributions, or matching contributions are 
distributed (or forfeited) prior to employee contributions. See Example 
6 in paragraph (e)(6) of this section.
* * * * *
    (6) * * *
* * * * *
    Example 2. (i) Employee A is the sole highly compensated 
participant in a cash or deferred arrangement maintained by Employer 
X. The plan that includes the arrangement, Plan X, provides a fully 
vested matching contribution equal to 50 percent of elective 
contributions. Plan X is a calendar year plan. Employer X includes 
elective contributions in compensation as permitted under 
Sec. 1.414(s)-1(c)(4)(i). See Sec. 1.401(k)-1(g)(2)(i). Plan X 
corrects excess contributions by recharacterization. For the 1988 
plan year, A's compensation is $58,333, and A's elective 
contributions are $7,000. The actual deferral percentages and actual 
contribution percentages of A and other employees under Plan X are 
shown below:

------------------------------------------------------------------------
                                                  Actual       Actual   
                                                 deferral   contribution
                                                percentage   percentage 
------------------------------------------------------------------------
Employee A....................................         12            6  
Nonhighly compensated.........................          8            4  
------------------------------------------------------------------------

    (ii) In February 1989, Employer X determines that A's actual 
deferral ratio must be reduced to 10 percent, or $5,833, which 
requires a recharacterization of $1,167 as an employee contribution. 
This increases A's actual contribution ratio to eight percent 
($3,500 in matching contributions plus $1,167 recharacterized as 
employee contributions, divided by $58,333 in compensation). Since 
A's actual contribution ratio must be limited to six percent for 
Plan X to satisfy the actual contribution percentage test, Plan X 
must distribute $1,167 of A's employee and matching contributions. 
If $1,167 in matching contributions is distributed, this will 
correct the excess aggregate contributions and will not result in a 
discriminatory rate of matching contributions. See Example 8.
    Example 3. Same as Example 2, except that in 1988 A also had 
elective contributions of $1,313 under Plan Y, maintained by an 
employer unrelated to X. In January 1989, A requests and receives a 
distribution of $1,000 in excess deferrals from Plan X. Pursuant to 
the terms of Plan X, A forfeits the $500 match on the excess 
deferrals to correct a discriminatory rate of match (see Example 8). 
The $1,167 that would otherwise have been recharacterized for Plan X 
to satisfy the actual deferral percentage test is reduced by the 
$1,000 already distributed as an excess deferral, leaving $167 to be 
recharacterized. See Sec. 1.401(k)-1(f)(5)(i). Pursuant to the terms 
of Plan X, A forfeits the $83.50 match on the recharacterized $167 
to correct a discriminatory rate of match. A's actual contribution 
ratio is now 5.29 percent ($2,916.50 ($3,500-$500-$83.50)) in 
matching contributions plus $167 in employee contributions, divided 
by $58,333 in compensation). Since Plan X satisfies the actual 
contribution percentage test, no further distribution is required or 
permitted.
    Example 4. Same as Example 3, except that A does not request a 
distribution of excess deferrals until March 1989. Employer X has 
already recharacterized $1,167 as employee contributions. Under 
Sec. 1.402(g)-1(e)(6), the amount of excess deferrals is reduced by 
the amount of excess contributions that are recharacterized. Because 
the amount recharacterized is greater than the excess deferrals, 
Plan X is neither required nor permitted to make a distribution of 
excess deferrals, and the recharacterization has corrected the 
excess deferrals.
    Example 5. For the 1987 plan year, Employee B defers $7,000 
under Plan C and $1,000 under plan D. Plans C and D are maintained 
by unrelated Employers C and D; both Plans C and D have calendar 
plan years. Plan C provides a fully vested, 100 percent matching 
contribution and does not take elective contributions into account 
under section 401(m) or take matching contributions into account 
under section 401(k). Employer C determines that B has excess 
contributions of $600 and excess aggregate contributions of $1,600. 
B timely requests and receives a distribution of the $1,000 excess 
deferral from Plan C, and pursuant to the terms of Plan C, forfeits 
the corresponding $1,000 matching contribution to correct a 
discriminatory rate of match (see Example 8). Plan C provides that 
excess contributions and excess aggregate contributions are 
corrected by distribution. No distribution is required or permitted 
to correct the excess contributions because $1,000 has been 
distributed from this plan as excess deferrals. The distribution 
required to correct the excess aggregate contributions (after 
forfeiting the matching contribution) is $600 ($1,600 in excess 
aggregate contributions minus $1,000 in forfeited matching 
contributions). If B had corrected the excess deferrals of $1,000 by 
withdrawing $1,000 from Plan D, Plan C would have had to correct the 
$600 excess contributions in Plan C by distributing $600. Since B 
then would have forfeited $600 (instead of $1,000) in matching 
contributions, B would have had $1,000 ($1,600 in excess aggregate 
contributions minus $600 in forfeited matching contributions) 
remaining of excess aggregate contributions in Plan C. These would 
have been corrected by distributing an additional $1,000 from Plan 
C.
    Example 6. Employee B is the sole highly compensated employee in 
a thrift plan under which the employer matches 100 percent of 
employee contributions up to two percent of compensation, and 50 
percent of employee contributions up to the next four percent of 
compensation. For the 1988 plan year, B has compensation of 
$100,000. B makes an employee contribution of $7,000, or seven 
percent, and receives a four percent matching contribution of 
$4,000. Thus, B's actual contribution ratio (ACR) is 11 percent. The 
actual contribution percentage for the nonhighly compensated 
employees is five percent, and the employer determines that B's ACR 
must be reduced to seven percent to comply with the rules of section 
401(m). In this case, the plan satisfies the requirements of this 
paragraph if it distributes the unmatched employee contributions of 
$1,000, and $2,000 of matched employee contributions with their 
related matches of $1,000. This would leave B with four percent 
employee contributions, and three percent matching contributions, 
for an ACR of seven percent. The plan could instead distribute all 
matching contributions. The plan would fail to meet the requirements 
of this paragraph if it distributed $4,000 (four percent) of B's 
employee contributions and none of B's matching contributions 
because this would result in a discriminatory rate of matching 
contributions. See Sec. 1.401(m)-1(e)(2) and (4). See also Example 
8.
* * * * *
    Example 8. (i) Employer B maintains a calendar year profit 
sharing plan that includes a cash or deferred arrangement. Elective 
contributions are matched at the rate of 100 percent. After-tax 
employee contributions are permitted under the plan only for 
nonhighly compensated employees and are matched at the same rate. No 
employees make excess deferrals. Employee A, a highly compensated 
employee, makes an $8,000 elective contribution and receives an 
$8,000 matching contribution.
    (ii) Employer B performs the actual deferral percentage (ADP), 
the actual contribution percentage (ACP), and the multiple use 
tests. To correct failures of the ADP and ACP tests, the plan 
distributes to A $1,000 of excess contributions and $500 of excess 
aggregate contributions. After the distributions, A's contributions 
for the year are $7,000 of elective contributions and $7,500 of 
matching contributions. As a result, A has received a higher 
effective rate of matching contributions than nonhighly compensated 
employees ($7,000 of elective contributions matched by $7,500 is an 
effective matching rate of 107 percent). If this amount remains in 
A's account without correction, it will cause the plan to fail to 
satisfy section 401(a)(4), because only a highly compensated 
employee receives the higher matching contribution rate. The 
remaining $500 matching contribution may be forfeited (but not 
distributed) under section 411(a)(3)(G), if the plan so provides. 
The plan could instead correct the discriminatory rate of matching 
contributions by making additional allocations to the accounts of 
nonhighly compensated employees. See Sec. 1.401(a)(4)-
11(g)(3)(vii)(B) and (6), Example 7.

    (f) * * *
    (1) * * *
    (ii) * * *
    (B) Highly compensated employee eligible under more than one plan. 
The actual contribution ratio of a highly compensated employee who is 
eligible to participate in more than one plan of an employer to which 
employee or matching contributions are made is calculated by treating 
all the plans in which the employee is eligible to participate as one 
plan. However, plans that are not permitted to be aggregated under 
Sec. 1.410(b)-7(c), as modified in Sec. 1.401(k)-1(g)(11), are not 
aggregated for this purpose. For example, if a highly compensated 
employee with compensation of $80,000 may receive matching 
contributions under two plans of an employer, the employee's actual 
contribution ratio under each plan is calculated by dividing the 
employee's total matching contributions under both plans by $80,000, 
unless the plans are required to be disaggregated. In that case, the 
actual contribution ratio of the employee under each plan is to be 
calculated by dividing the employee's matching contributions under that 
plan by $80,000. See paragraph (b)(3) of this section for the treatment 
of certain multiple plans. For plan years beginning after December 31, 
1988, or such later date provided in paragraph (g) of this section, if 
a highly compensated employee participates in two or more plans that 
have different plan years, this paragraph (f)(1)(ii) is applied by 
treating all plans whose plan years end with or within the same 
calendar year as a single plan.
    (C) Employees subject to family aggregation rules--(1) Aggregation 
of employee contributions and other amounts. For plan years beginning 
after December 31, 1986, or such later date provided in paragraph (g) 
of this section, if a highly compensated employee is subject to the 
family aggregation rules of section 414(q)(6) because that employee is 
either a five-percent owner or one of the 10 most highly compensated 
employees, the combined actual contribution ratio for the family group 
(treated as one highly compensated employee) must be determined by 
combining the employee contributions, matching contributions, amounts 
treated as matching contributions, and compensation of all family 
members.
* * * * *
    (2) Compensation. The term compensation means compensation as 
defined in Sec. 1.401(k)-1(g)(2)(i).
* * * * *
    (4) * * *
    (ii) * * * In no event is an election made after December 23, 1994 
treated as a one-time irrevocable election under this paragraph if the 
election is made by an employee who previously became eligible under 
another plan (whether or not terminated) of the employer.
* * * * *
    (12) * * *
    (i) * * *
    (B) Any employer contribution (including a contribution made at the 
employer's discretion) to a defined contribution plan on account of an 
elective deferral (as defined in Sec. 1.402(g)-1(b)); and
* * * * *
    (16) Section 401(k) plan. The term section 401(k) plan means a 
section 401(k) plan within the meaning of Sec. 1.410(b)-9.
    (17) Section 401(m) plan. The term section 401(m) plan means a 
section 401(m) plan within the meaning of Sec. 1.410(b)-9.
    (g) * * *
    (4) State and local government plans. A governmental plan described 
in section 414(d), including a plan subject to section 403(b)(12)(A)(i) 
(nonelective plan) is treated as satisfying section 401(m) for plan 
years beginning before the later of January 1, 1996, or 90 days after 
the opening of the first legislative session beginning on or after 
January 1, 1996, of the governing body with authority to amend the 
plan, if that body does not meet continuously. For purposes of this 
paragraph (g)(4), the term governing body with authority to amend the 
plan means the legislature, board, commission, council, or other 
governing body with authority to amend the plan.
    (5) * * *
    (ii) * * * (A) General rule. In determining whether the 
requirements of section 401(m) are satisfied for plan years beginning 
before January 1, 1992, a plan may be treated as consisting of two or 
more component plans, each consisting of all of the allocations and 
other benefits, rights, and features provided to a group of employees 
under the plan. See Sec. 1.401(a)(4)-9(c). An employee may not be 
included in more than one component plan of the same plan for a plan 
year under this method. If this method is used for a plan year, the 
requirements of section 401(m) are applied separately with respect to 
each component plan for the plan year. Thus, for example, the actual 
contribution ratio and the amount of excess aggregate contributions, if 
any, of each eligible employee under each component plan must be 
determined as if the component plan were a separate plan. This method 
applies solely for purposes of section 401(m). Thus, for example, the 
requirements of section 410(b) must still be satisfied by the entire 
plan.
    (B) * * *
    (2) Commonality requirement. The group of employees used to 
identify a component plan must share some common attribute or 
attributes, other than similar actual contribution ratios. Permissible 
common attributes include, for example, employment at the same work 
site, in the same job category, for the same division or subsidiary, or 
for a unit acquired in a specific merger or acquisition, employment for 
the same number of years, compensation under the same method (e.g., 
salaried or hourly), coverage under the same contribution formula, and 
attributes that could be used as the basis of a classification that 
would be treated as reasonable under Sec. 1.410(b)-4(b). Employees 
whose only common attribute is the same or similar actual contribution 
ratios, or another attribute having substantially the same effect as 
the same or similar actual contribution ratios, are not considered as 
sharing a common attribute for this purpose. This rule applies 
regardless of whether the component plan or the plan of which it is a 
part satisfies the ratio or percentage test of section 410(b).
    Par. 6. Section 1.401(m)-2 is amended as follows:
    1. A sentence is added at the end of paragraph (a).
    2. Paragraph (b)(1) is revised.
    3. Paragraph (c)(1) and (c)(4), Example 1 (i), is revised.
    4. The added and revised provisions read as follows:


Sec. 1.401(m)-2  Multiple use of alternative limitation.

    (a) * * * The consequences of multiple use of the alternative 
methods of compliance are described in Sec. 1.401(m)-1(a)(1).
    (b) General rule for determination of multiple use--(1) In general. 
(i) Multiple use of the alternative limitation occurs if all of the 
conditions of this paragraph (b)(1) are satisfied:
    (A) One or more highly compensated employees of the employer are 
eligible employees in both a cash or deferred arrangement subject to 
section 401(k) and a plan maintained by the employer subject to section 
401(m).
    (B) The sum of the actual deferral percentage of the entire group 
of eligible highly compensated employees under the arrangement subject 
to section 401(k) and the actual contribution percentage of the entire 
group of eligible highly compensated employees under the plan subject 
to section 401(m) exceeds the aggregate limit of paragraph (b)(3) of 
this section.
    (C) The actual deferral percentage of the entire group of eligible 
highly compensated employees under the arrangement subject to section 
401(k) exceeds the amount described in section 401(k)(3)(A)(ii)(I).
    (D) The actual contribution percentage of the entire group of 
eligible highly compensated employees under the arrangement subject to 
section 401(m) exceeds the amount described in section 401(m)(2)(A)(i).
    (ii) The actual deferral percentage and actual contribution 
percentage of the group of eligible highly compensated employees are 
determined after use of qualified nonelective contributions and 
qualified matching contributions to meet the requirements of section 
401(k)(3)(A)(ii) and after use of qualified nonelective contributions 
and elective contributions to meet the requirements of section 
401(m)(2)(A). The actual deferral percentage and actual contribution 
percentage of the group of eligible highly compensated employees are 
determined after any corrective distribution or forfeiture of excess 
deferrals, excess contributions, or excess aggregate contributions and 
after any recharacterization of excess contributions required without 
regard to this section. Only plans and arrangements maintained by the 
same employer are taken into account under this paragraph (b)(1). If 
the employer maintains two or more plans after application of the rules 
under Sec. 1.401(k)- 1(g)(11), multiple use is tested separately with 
respect to each plan. Thus, for example, if an employer maintains a 
cash or deferred arrangement with matching contributions, under which 
elective contributions may be made under either an ESOP or a non-ESOP, 
multiple use is tested separately with respect to elective 
contributions and matching contributions under the ESOP, and with 
respect to elective contributions and matching contributions under the 
non-ESOP.
* * * * *
    (c) * * * (1) In general. If multiple use of the alternative 
limitation occurs with respect to two or more plans or arrangements 
maintained by an employer, it must be corrected by reducing the actual 
deferral percentage, the actual contribution percentage of highly 
compensated employees, or a combination of the two, in the manner 
described in paragraph (c)(3) of this section. Instead of making this 
reduction, the employer may eliminate the multiple use of the 
alternative limitation by making qualified nonelective contributions in 
accordance with Sec. 1.401(k)-1(b)(5) and (f)(1) or Sec. 1.401(m)-
1(b)(5) and (e)(1).
* * * * *
    (4) * * *

    Example 1. (i) All employees of Employer Q are eligible in both 
an arrangement subject to section 401(k) and a plan subject to 
section 401(m). Both plans have a calendar plan year. The plans 
provide that multiple use of the alternative limitation will be 
corrected in the plan subject to section 401(m) and that any 
required reduction in actual contribution ratios will apply only to 
employees eligible to participate in both arrangements. Employer Q 
includes elective contributions in compensation as permitted under 
Sec. 1.414(s)-1(c)(4)(i). See Sec. 1.401(k)-1(g)(2)(i). Employees X 
and Y are highly compensated. Each received compensation of 
$100,000, deferred $6,000, received a $3,000 matching contribution, 
and made employee contributions of $3,000. Actual deferral and 
contribution percentages under the arrangement and plan for the 1989 
plan year are shown below. No excess deferrals, excess 
contributions, or excess aggregate contributions have yet been 
required to be distributed, forfeited, or recharacterized under the 
plan.

------------------------------------------------------------------------
                                                  Actual       Actual   
                                                 deferral   contribution
                                                percentage   percentage 
------------------------------------------------------------------------
Highly compensated............................          6            6  
Nonhighly compensated.........................          4            4  
------------------------------------------------------------------------

* * * * *
    Par. 7. Section 1.402(a)-1 is amended as follows:
    1. Paragraph (d)(3)(iv) is revised.
    2. Paragraph (d)(3)(v) is added.
    3. The added and revised provisions read as follows:


Sec. 1.402(a)-1  Taxability of beneficiary under a trust which meets 
the requirements of section 401(a).

* * * * *
    (d) * * *
    (3) * * *
    (iv) Special rule for collectively bargained plans. For plan years 
beginning before January 1, 1993, a nonqualified cash or deferred 
arrangement will be treated as satisfying section 401(k)(3) solely for 
purposes of paragraph (d)(2)(i) of this section if it is part of a plan 
(or portion of a plan) that automatically satisfies section 401(a)(4) 
under Sec. 1.401(k)-1(a)(7), relating to certain collectively bargained 
plans.
    (v) Special rule for governmental plans. For plan years beginning 
before the later of January 1, 1996, or 90 days after the opening of 
the first legislative session beginning on or after January 1, 1996, of 
the governing body with authority to amend the plan, if that body does 
not meet continuously, in the case of governmental plans described in 
section 414(d), a nonqualified cash or deferred arrangement will be 
treated as satisfying section 401(k)(3) solely for purposes of 
paragraph (d)(2)(i) of this section if it is part of a plan adopted by 
a state or local government before May 6, 1986. For purposes of this 
paragraph (d)(3)(v), the term governing body with authority to amend 
the plan means the legislature, board, commission, council, or other 
governing body with authority to amend the plan.
    Par. 8. Section 1.402(g)-1 is amended as follows:
    1. Paragraph (e)(5)(ii) is revised.
    2. In paragraph (e)(11), paragraph (iv) of Example 2, is revised 
and paragraph (v) is removed.
    3. The added and revised provisions read as follows:


Sec. 1.402(g)-1  Limitation on exclusion for elective deferrals.

    (e) * * *
    (5) * * *
    (ii) Method of allocating income. A plan may use any reasonable 
method for computing the income allocable to excess deferrals, provided 
that the method does not violate section 401(a)(4), is used 
consistently for all participants and for all corrective distributions 
under a plan for the plan year, and is used by the plan for allocating 
income to participants' accounts. See Sec. 1.401(a)(4)-1(c)(8).
* * * * *
    (11) * * *
    Example 2. * * *

    (iv) In February 1990, B notifies X that B made elective 
deferrals of $2,000 under a qualified cash or deferred arrangement 
maintained by an unrelated employer in 1989, and requests 
distribution of $2,000 from X's plan. However, since B has already 
received a distribution of $2,002 to meet the ADP test, no 
additional amounts are required or are permitted to be distributed 
as excess deferrals by this plan, and the prior distribution of 
excess contributions has corrected the excess deferrals. But X must 
report $2,000 as a distribution of an excess deferral and $2 as a 
distribution of an excess contribution.
* * * * *
    Par. 9. In Sec. 1.411(d)-4, A-2 is amended by revising paragraph 
(b)(2) (x) and (xi) to read as follows:


1.411(d)-4  Section 411(d)(6) protected benefits.

* * * * *
    A-2: * * *
    (b) * * *
    (2) * * *
    (x) Amendment of hardship distribution standards. A qualified cash 
or deferred arrangement that permits hardship distributions under 
Sec. 1.401(k)-1(d)(2) may be amended to specify or modify 
nondiscriminatory and objective standards for determining the existence 
of an immediate and heavy financial need, the amount necessary to meet 
the need, or other conditions relating to eligibility to receive a 
hardship distribution. For example, a plan will not be treated as 
violating section 411(d)(6) merely because it is amended to specify or 
modify the resources an employee must exhaust to qualify for a hardship 
distribution or to require employees to provide additional statements 
or representations to establish the existence of a hardship. A 
qualified cash or deferred arrangement may also be amended to eliminate 
hardship distributions. The provisions of this paragraph also apply to 
profit-sharing or stock bonus plans that permit hardship distributions, 
whether or not the hardship distributions are limited to those 
described in Sec. 1.401(k)-1(d)(2).
    (xi) Section 415 benefit limitations. Accrued benefits under a plan 
as of the first day of the first limitation year beginning after 
December 31, 1986, that exceed the benefit limitations under section 
415 (b) or (e), effective on the first day of the plan's first 
limitation year beginning after December 31, 1986, because of a change 
in the terms and conditions of the plan made after May 5, 1986, or the 
establishment of a plan after that date, may be reduced to the level 
permitted under section 415 (b) or (e).
* * * * *
    Par. 10. Section 1.415-6 is amended by revising paragraph 
(b)(6)(iv) to read as follows:


Sec. 1.415-6  Limitation for defined contribution plans.

* * * * *
    (b) * * *
    (6) * * *
    (iv) Notwithstanding paragraph (b)(6) (i), (ii), or (iii) of this 
section, the plan may provide for the distribution of elective 
deferrals (within the meaning of section 402(g)(3)) or the return of 
employee contributions (whether voluntary or mandatory), and for the 
distribution of gains attributable to those elective deferrals and 
employee contributions, to the extent that the distribution or return 
would reduce the excess amounts in the participant's account. These 
distributed or returned amounts are disregarded for purposes of section 
402(g), the actual deferral percentage test of section 401(k)(3), and 
the actual contribution percentage test of section 401(m)(2). However, 
the return of mandatory employee contributions may result in 
discrimination in favor of highly compensated employees. If the plan 
does not provide for the return of gains attributable to the returned 
employee contributions, such earnings will be considered as an employee 
contribution for the limitation year in which the returned contribution 
was made. For limitation years beginning after December 31, 1995, if a 
plan does not provide for the distribution of gains attributable to the 
distributed elective deferrals, such earnings will be considered as an 
employer contribution for the limitation year in which the distributed 
elective deferral was made. If a suspense account is in existence at 
any time during the limitation year in accordance with this 
subparagraph, investment gains and losses and other income may, but 
need not, be allocated to the suspense account. To the extent that 
investment gains or other income or investment losses are allocated to 
the suspense account, the entire amount allocated to participants from 
the suspense account, including any such gains or other income or less 
any such losses, is considered as the annual addition. See 
Sec. 1.401(a)-2(b) for provisions relating to the disposition of a 
suspense account in existence upon termination of a plan.
* * * * *

PART 54--PENSION EXCISE TAXES

    Par. 11. The authority citation for part 54 continues to read in 
part as follows:

    Authority: 26 U.S.C. 7805. * * *

    Par. 12. Section 54.4979-0 is amended as follows:
    1. The entry for Sec. 54.4979-1, paragraph (d)(4) is revised.
    2. The entry for Sec. 54.4979-1, paragraph (d)(5) is removed.
    The revised entry reads as follows:


Sec. 54.4979-0.  Excise tax on certain excess contributions and excess 
aggregate contributions, table of contents.

* * * * *

Sec. 54.4979-1* * *

    (d) * * *
    (4) Plan years beginning before January 1, 1992.

    Par. 13. Section 54.4979-1 is amended as follows:
    1. Paragraph (d)(1) is revised.
    2. Paragraph (d)(3) is revised.
    3. Paragraph (d)(4) is removed.
    4. Paragraph (d)(5) is redesignated as paragraph (d)(4).
    The revised provisions read as follows:


Sec. 54.4979-1  Excise tax on certain excess contributions and excess 
aggregate contributions.

    (d) Effective date--(1) General rule. Except as provided in 
paragraphs (d)(2) through (4), this section is effective for plan years 
beginning after December 31, 1986.
* * * * *
    (3) Collectively bargained plans and plans of state or local 
governments. For plan years beginning before January 1, 1993, the 
provisions of this section do not apply to a collectively bargained 
plan that automatically satisfies the requirements of section 410(b). 
See Secs. 1.401(a)(4)-1(c)(5) and 1.410(b)-2(b)(7) of this chapter. In 
the case of a plan (including a collectively bargained plan) maintained 
by a state or local government, the provisions of this section do not 
apply for plan years beginning before the later of January 1, 1996, or 
90 days after the opening of the first legislative session beginning on 
or after January 1, 1996, of the governing body with authority to amend 
the plan, if that body does not meet continuously. For purposes of this 
paragraph (d)(3), the term governing body with authority to amend the 
plan means the legislature, board, commission, council, or other 
governing body with authority to amend the plan.
    (4) Plan years beginning before January 1, 1992. * * *
Margaret Milner Richardson,
Commissioner of Internal Revenue.
    Approved: December 13, 1994.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 94-31427 Filed 12-22-94; 8:45 am]
BILLING CODE 4830-01-U