Revenue Procedure 2021-30
Internal Revenue Service
2021-31 I.R.B. 172
   
   
   
Rev. Proc. 2021-30 
   
TABLE OF CONTENTS   
   
                          
       
       
       
   
PART I.   
INTRODUCTION TO EMPLOYEE PLANS COMPLIANCE RESOLUTION SYSTEM   
     
SECTION 1. PURPOSE AND OVERVIEW.01 Purpose. This revenue procedure updates the comprehensive system of correction programs   
for sponsors of retirement plans that are intended to satisfy the requirements of § 401(a), 403(a),   
403(b), 408(k), or 408(p) of the Internal Revenue Code (the "Code"), but that have not met these   
requirements for a period of time. This system, the Employee Plans Compliance Resolution Sys-   
tem ("EPCRS"), permits Plan Sponsors to correct these failures and thereby continue to provide   
their employees with retirement benefits on a tax-favored basis. The components of EPCRS are   
the Self-Correction Program ("SCP"), the Voluntary Correction Program ("VCP"), and the Audit   
Closing Agreement Program ("Audit CAP")..02 General principles underlying EPCRS. EPCRS is based on the following general principles:   
     
-    Sponsors and other administrators of eligible plans should be encouraged to establish ad-   
  ministrative practices and procedures that ensure that these plans are operated properly in   
  accordance with the applicable requirements of the Code.   
     
-    Sponsors and other administrators of eligible plans should satisfy the applicable plan docu-   
  ment requirements of the Code.   
     
-    Sponsors and other administrators should make voluntary and timely correction of any plan   
  failures, whether involving discrimination in favor of highly compensated employees, plan   
  operations, the terms of the plan document, or adoption of a plan by an ineligible employer.   
  Timely and efficient correction protects participating employees by providing them with their   
  expected retirement benefits, including favorable tax treatment.   
     
-    Voluntary compliance is promoted by establishing limited fees for voluntary corrections ap-   
  proved by the Internal Revenue Service ("IRS"), thereby reducing employers' uncertainty   
  regarding their potential tax liability and participants' potential tax liability.   
     
-    Fees and sanctions should be graduated in a series of steps so that there is always an incentive   
  to correct promptly.   
     
-    Sanctions for plan failures identified on audit should be reasonable in light of the nature,   
  extent, and severity of the violation.   
     
-    Administration of EPCRS should be consistent and uniform.   
     
-    Sponsors should be able to rely on the availability of EPCRS in taking corrective actions to   
  maintain the tax-favored status of their plans..03 Overview. EPCRS includes the following basic elements:   
     
-       Self-correction (SCP). A Plan Sponsor that has established compliance practices and proce-   
  dures may, at any time without paying any fee or sanction, correct insignificant Operational   
  Failures under a Qualified Plan, a § 403(b) Plan, a SEP, or a SIMPLE IRA Plan. For a SEP or   
  SIMPLE IRA Plan, SCP is available only if the SEP or SIMPLE IRA Plan is established and   
  maintained on a document approved by the IRS. In addition, in the case of a Qualified Plan or   
  §403(b) Plan that satisfies the requirements of sections 4.03 or 4.04, the Plan Sponsor gen-   
  erally may correct significant Operational Failures and Plan Document Failures without pay-   
  ment of any fee or sanction if the correction is made within the time specified in section 9.02.   
     
-       Voluntary correction with IRS approval (VCP). A Plan Sponsor, at any time before audit,   
may pay a limited fee and receive the IRS's approval for correction of a Qualified Plan,   
§ 403(b) Plan, SEP, or SIMPLE IRA Plan failure. Under VCP, there are special procedures   
for anonymous submissions and group submissions. However, effective January 1, 2022, the   
anonymous submission procedure is eliminated. VCP submissions may not be submitted on   
an anonymous basis on or after that date. Additionally, an anonymous, no-fee, VCP pre-sub-   
mission conference procedure is added, effective January 1, 2022.   
     
     Correction on audit (Audit CAP). If a failure (other than a failure corrected through SCP or   
VCP) is identified on audit, the Plan Sponsor may correct the failure and pay a sanction. The   
sanction imposed will bear a reasonable relationship to the nature, extent, and severity of the   
failure, taking into account the extent to which correction occurred before audit.   
     
SECTION 2. EFFECT OF THIS REVENUE PROCEDURE ON PROGRAMS.01 Effect on programs. This revenue procedure modifies and supersedes Rev. Proc. 2019-19,   
2019-19 I.R.B. 1086, the most recent prior consolidated statement of the correction programs   
under EPCRS. This update to Rev. Proc. 2019-19 is a limited update and is published primarily to:   
     
(1) expand guidance on the recoupment of Overpayments;   
     
(2) eliminate the anonymous submission procedure under VCP, effective January 1, 2022;   
     
(3) add an anonymous, no-fee, VCP pre-submission conference procedure, effective January 1,   
2022;   
     
(4) extend the end of the SCP correction period for significant failures by one year (which has   
the result of also extending the safe harbor correction method for Employee Elective Deferral   
Failures lasting more than three months but not beyond the extended SCP correction period   
for significant failures);   
     
(5) expand the ability of a Plan Sponsor to correct an Operational Failure under SCP by plan   
amendment; and   
     
(6) extend by three years the sunset of the safe harbor correction method available for certain   
Employee Elective Deferral Failures associated with missed elective deferrals for eligible   
employees who are subject to an automatic contribution feature in a § 401(k) plan or § 403(b)   
Plan (from December 31, 2020, to December 31, 2023)..02 Correction of Overpayment (defined benefit plans). (1)   In general. Rev. Proc. 2015-27,     
2015-16 I.R.B. 914, clarified the permissible methods for correcting Overpayments under EP-   
CRS by noting that, depending on the facts and circumstances, correcting an Overpayment under   
EPCRS may not need to include requesting that Overpayments be returned to the plan by plan   
participants and beneficiaries. The Department of the Treasury ("Treasury Department") and the   
IRS also requested comments in Rev. Proc. 2015-27 on potential changes relating to the recoup-   
ment of Overpayments. In light of comments received, the Treasury Department and the IRS are   
modifying Rev. Proc. 2019-19 to further clarify and expand options available for the recoupment   
of Overpayments.   
     
(2)   Modifications to current correction methods. Sections 6.06(3), 6.06(4), and Appendix B, sec-       
tion 2.05, are revised to provide that Plan Sponsors may provide Overpayment recipients the   
option of repaying an Overpayment in a single sum payment, through an installment agreement,   
or through an adjustment in future payments.   
     
(3)   New correction methods. Section 6.06(3) is revised to provide two new Overpayment cor-   
rection methods, the funding exception correction method and the contribution credit correction   
method. These methods reduce the need for defined benefit plans to seek recoupment from Over-   
payment recipients and ease the process for Overpayment recipients repaying Overpayments,   
while balancing the interest of other participants in the plan.   
     
(i)   Funding exception correction method. Section 6.06(3)(d)(i) sets forth the new funding ex-   
ception correction method, which provides that corrective payments are not required for a plan   
subject to § 436, provided that the plan's certified or presumed adjusted funding target attainment   
percentage ("AFTAP") determined under § 436 that is applicable to the plan at the date of cor-   
rection is equal to at least 100 percent (or, in the case of a multiemployer plan, the plan's most   
recent annual funding certification indicates that the plan is not in critical, critical and declinning,   
or endangered status (as defined in  § 432), determined at the date of correction). Future benefit   
payments to an Overpayment recipient must be reduced to the correct benefit payment amount.   
For purposes of EPCRS, no further corrective payments from any party are required, no further   
reductions to future benefit payments to an Overpayment recipient, or any spouse or beneficiary   
of an Overpayment recipient, are permitted, and no further corrective payments from an Over-   
payment recipient, or any spouse or beneficiary of an Overpayment recipient, are permitted. See   
section 6.06(3)(d)(i) and Appendix B, section 2.05(3).   
     
(ii)   Contribution credit correction method. Section 6.06(3)(d)(ii) sets forth the new contribu-   
tion credit correction method, which provides that the amount of Overpayments required to   
be repaid to the plan is the amount of the Overpayments reduced (but not below zero) by:   
(A) the cumulative increase in the plan's minimum funding requirements attributable to the   
Overpayments (including the increase attributable to the overstatement of liabilities, whether   
funded through cash contributions or through the use of a funding standard carryover balance,   
prefunding balance, or funding standard account credit balance), beginning with (1) the plan   
year for which the Overpayments are taken into account for funding purposes, through (2) the   
end of the plan year preceding the plan year for which the corrected benefit payment amount is   
taken into account for funding purposes; and (B) certain additional contributions in excess of   
minimum funding requirements paid to the plan after the first of the Overpayments was made.   
This reduction is referred to as a "contribution credit." Future benefit payments to an Overpay-   
ment recipient must be reduced to the correct benefit payment amount. For purposes of EPCRS,   
if the amount of the Overpayments is reduced to zero after the contribution credit is applied,   
no further corrective payments from any party are required, no further reductions to future   
benefit payments to an Overpayment recipient, or any spouse or beneficiary of an Overpayment   
recipient, are permitted, and no further corrective payments from an Overpayment recipient, or   
any spouse or beneficiary of an Overpayment recipient, are permitted. However, if a net Over-   
payment remains after the application of the contribution credit, the Plan Sponsor or another   
party must take further action to reimburse the plan for the remainder of the Overpayment. See   
section 6.06(3)(d)(ii) and Appendix B, section 2.05(4)..03 Description of other modifications. The other modifications to Rev. Proc. 2019-19 that are   
made by this revenue procedure include the following--   
     
1.   
Eliminating the condition previously set forth in section 4.05(2)(a)(ii) (relating to correc-   
     
tion by plan amendment of Operational Failures under SCP for Qualified Plans and § 403(b)   
     
Plans) that requires a plan amendment that increases a benefit, right, or feature to apply to all   
     
participants eligible to participate under the plan.   
     
2.   
Increasing from $100 to $250 the threshold for certain de minimis amounts for which a Plan   
     
Sponsor is not required to implement correction. See sections 6.02(5)(c), 6.02(5)(e), and   
     
6.11(5)(c).   
     
3.   
Modifying the structure of section 6.06(4) and Appendix B, section 2.04, to be more consis-   
     
tent with changes made to section 6.06(3) and Appendix B, section 2.05, and to clarify the   
     
correction principles relating to Overpayment to from defined contribution plans and § 403(b)   
     
Plans.   
     
4. Extending the end of the SCP correction period for significant failures (set forth in section   
     
9.02) from the last day of the second plan year following the plan year for which the failure   
     
occurred to the last day of the third plan year following the plan year for which the failure   
     
occurred (which has the result of also extending the safe harbor correction method set forth   
     
in Appendix A, section.05(9)(b) for Employee Elective Deferral Failures lasting more than   
     
three months but not beyond the extended SCP correction period for significant failures) and   
     
modifying the examples in section 9.04 to reflect this extension.   
     
5.   
Revising section 10.01 to add an option, effective January 1, 2022, for Plan Sponsors to re-   
     
quest a no-fee anonymous VCP pre-submission conference under specified circumstances.   
     
6.   
Eliminating the anonymous submission procedure described in section 10.09 of Rev. Proc.   
     
2019-19, which permits submission of  a Qualified Plan, § 403(b) Plan, SEP, or SIMPLE IRA   
     
Plan under VCP without initially identifying the applicable plan, the Plan Sponsor, or the El-   
     
igible Organization, effective January 1, 2022, and making conforming revisions to sections   
     
11.04(16) and 11.08(2) to reflect the elimination of this procedure. See section 10.10 of this   
     
revenue procedure.   
     
7.   
Requiring that Audit CAP sanctions be paid through the Pay.gov website (instead of by certi-   
     
fied check or cashier's check) beginning January 1, 2022. See section 13.02.   
     
8.   
Revising Appendix A, section.05(8), to extend by three years (from December 31, 2020,   
     
to December 31, 2023) the sunset of the safe harbor correction method available for certain   
     
Employee Elective Deferral Failures associated with missed elective deferrals for eligible   
     
employees who are subject to an automatic contribution feature in a § 401(k) plan or § 403(b)   
     
Plan..04 Future enhancements.   
     
It is expected that the Treasury Department and the IRS will continue to update the EPCRS reve-   
nue procedure, in whole or in part, from time to time, including further improvements to EPCRS   
based on comments received. Accordingly, the Treasury Department and the IRS continue to in-   
vite further comments on how to improve EPCRS. For information on how to submit comments,   
see section 17.   
     
PART II.   
PROGRAM EFFECT AND ELIGIBILITY   
     
SECTION 3. EFFECT OF EPCRS; RELIANCE.01 Effect of EPCRS on retirement plans. For a Qualified Plan, a § 403(b) Plan, a SEP, or a SIM-   
PLE IRA Plan, if the eligibility requirements of section 4 are satisfied and the Plan Sponsor cor-   
rects a failure in accordance with the applicable requirements of SCP in section 7, VCP in section   
10, or Audit CAP in section 13, the IRS will not treat the plan as failing to satisfy the requirements   
of § 401(a), 403(b), 408(k), or 408(p), as applicable, because of the failure. For example, if the   
Plan Sponsor corrects a failure in accordance with the requirements of this revenue procedure, the   
plan will not thereby be treated as failing to satisfy § 401(a), 403(b), 408(k), or 408(p), as applica-   
ble, for purposes of applying §§ 3121(a)(5) (FICA taxes) and 3306(b)(5) (FUTA taxes)..02 Compliance statement. If a Plan Sponsor or Eligible Organization receives a compliance state-   
ment under VCP, the compliance statement is binding upon the IRS and the Plan Sponsor or Eli-   
gible Organization as provided in section 10.08..03 Excise and other taxes. See section 6.09 for rules relating to excise and other taxes..04 Reliance. Taxpayers may rely on this revenue procedure, including the relief described in   
section 3.01.   
     
SECTION 4. PROGRAM ELIGIBILITY.01 EPCRS Programs. (1)   SCP. SCP is available to correct Operational Failures and certain Plan   
Document Failures as follows:   
     
(a)   Operational Failures. A Plan Sponsor of a Qualified Plan or § 4.03(b) Plan that is otherwise   
eligible for correction under SCP may use SCP to correct significant and insignificant Operational   
Failures (including certain plan loan failures described in section 6.07). Operational Failures that   
are significant may be corrected under SCP only if the correction of the failure is completed or   
substantially completed (in accordance with section 9.03) by the last day of the correction period   
described in section 9.02.   
     
(b)   Plan Document Failures. A Plan Sponsor of a Qualified Plan or § 403(b) Plan may use SPC to   
correct certain Plan Document Failures, as defined in section 5.01(2)(a) for a Qualified Plan and   
section 5.02(2)(a) for a § 403(b) Plan, that are otherwise eligible for correction under SCP. A Plan   
Document Failure consisting of the initial failure to adopt a Qualified Plan, or the failure to adopt   
a written § 403(b) Plan timely in accordance with §1.403(b)-3(b)(3) and Notice 2009-3, 2009-2   
I.R.B. 250, is treated as a Plan Document Failure that is not eligible to be corrected under SCP. All   
Plan Document Failures that are eligible to be corrected under SCP are treated as significant; thus,   
the correction must be completed by the last day of the correction period described in section 9.02.   
     
(c)   SEPs and SIMPLE IRA Plans. SEPs and SIMPLE IRA Plans are eligible to be corrected under   
SCP only with respect to insignificant Operational Failures.   
     
(d)   Demographic Failures and Employer Eligibility Failures. Demographic Failures and Employ-   
er Eligibility Failures may not be corrected under SCP.   
     
(2)   VCP. Qualified Plans, § 403(b) Plans, SEPs, and SIMPLE IRA Plans are eligible for correc-   
tion under VCP. VCP provides general procedures for correction of all Qualification Failures:   
Operational, Plan Document, Demographic, and Employer Eligibility. VCP also provides general   
procedures for the correction of plan loan failures (see section 6.07). Effective January 1, 2022,   
VCP submissions may not be submitted on an anonymous basis.   
     
(3)   Audit CAP. Unless otherwise provided, Audit CAP is available for correction of Qualified   
Plans, § 403(b) Plans, SEPs, and SIMPLE IRA Plans for all failures found on examination that   
have not been corrected in accordance with SCP or VCP. Audit CAP also provides general proce-   
dures for the correction of plan loan failures (see section 6.07).   
     
(4)   Eligibility for other arrangements. The IRS may extend EPCRS to other arrangements.   
     
(5)   Appropriate use of programs. In a particular case, the IRS may decline to make available one   
or more correction programs under EPCRS in the interest of sound tax administration..02 Effect of examination. If the plan or Plan Sponsor is Under Examination, VCP is not available.   
SCP is available only as follows:   
     
(1)   Insignificant Operational Failures. While the plan or Plan Sponsor is Under Examination,       
insignificant Operational Failures may be corrected under SCP.   
     
(2)   Significant Operational Failures. If correction of significant Operational Failures has been       
substantially completed (as described in section 9.03) before the plan or Plan Sponsor is Under   
Examination, the Plan Sponsor may complete correction of those failures under SCP..03 SCP eligibility requirements relating to plan documents. (1)   Requirements for Qualified Plans    
 and § 403(b) Plans. The provisions of SCP relating to certain Plan Document Failures, as de-   
scribed in section 4.01(1)(b), and Significant Operational Failures, as described in section 9, are   
available for a Qualified Plan that, as of the date of correction, is the subject of a Favorable Letter.   
See section 5.01(4) for the definition of Favorable Letter for a Qualified Plan. The provisions of   
SCP relating to certain Plan Document Failures and significant Operational Failures are available   
for a § 403(b) Plan if the conditions for being treated as having a Favorable Letter in section   
6.10(2) are satisfied. See section 5.02(5) for the definition of Favorable Letter for a 403(b) Plan.   
     
(2)   Requirements for SEPs and SIMPLE IRAs. The provisions of SCP relating to insignificant   
Operational Failures (see section 8) are available for a SEP only if the plan document consists of   
either (i) a valid Model Form 5305-SEP, Simplified Employee Pension--Iindividual Retirement   
Accounts Contribution Agreement, or 5305A-SEP, Salary Reduction Simplified Employee Pen-   
sion--Individual Retirement Accounts Contribution Agreement, adopted by an employer in ac-   
cordance with the instructions on the applicable form (see Rev. Proc. 2002-10, 2002-1 C.B. 401)   
or (ii) a prototype SEP that has a current favorable opinion letter and that has been amended in   
accordance with the procedures set forth in Rev. Proc. 2002-10. The provisions of SCP relating   
to insignificant Operational Failures are available for a SIMPLE IRA Plan only if the plan docu-   
ment consists of either (i) a valid Model Form 5305-SIMPLE, Savings Incentive Match Plan for   
Employees of Small Employers (SIMPLE)--for Use with a Designated Financial Institution, or   
5304-SIMPLE, Savings Incentive Match Plan for Employees of Small Employers (SIMPLE)--   
Not for Use with a Designated Financial Institution, adopted by an employer in accordance with   
the instructions on the applicable form (see Rev. Proc. 2002-10) or (ii) a prototype SIMPLE IRA   
Plan that has a current favorable opinion letter and that has been amended in accordance with the   
procedures set forth in Rev. Proc. 2002-10..04 Established practices and procedures. To be eligible for SCP, the Plan Sponsor or administrator   
of a plan must have established practices and procedures (formal or informal) reasonably designed   
to promote and facilitate overall compliance in form and operation with applicable Code require-   
ments. For example, the plan administrator of a Qualified Plan that may be top-heavy under § 416   
may include in its plan operating manual a specific annual step to determine whether the Plan is   
top-heavy and, if so, to ensure that the minimum contribution requirements of the top-heavy rules   
are satisfied. A plan document alone does not constitute evidence of established procedures. In   
order for a Plan Sponsor or administrator to use SCP, these established procedures must have been   
in place and routinely followed, and an Operational Failure or Plan Document Failure must have   
occurred through an oversight or mistake in applying them. SCP also may be used in situations   
in which the Operational Failure or Plan Document Failure occurred because the procedures that   
were in place, while reasonable, were not sufficient to prevent the occurrence of the failure. A plan   
that provides for elective deferrals and nonelective employer contributions that are not matching   
contributions is not treated as failing to have established practices and procedures to prevent the   
occurrence of a § 415(c) violation in the case of a plan under which excess annual additions under   
§ 415(c) are regularly corrected by return of elective deferrals to the affected employee within   
91⁄2 months after the end of the plan's limitation year. The correction, however, should not violate   
another applicable Code requirement. In the case of a failure that relates to Transferred Assets or   
to a plan assumed in connection with a corporate merger, acquisition, or other similar employer   
transaction between the Plan Sponsor and the sponsor of the transferor plan or the prior Plan   
Sponsor of an assumed plan, the plan is considered to have established practices and procedures   
for the Transferred Assets if such practices and procedures are in effect for the Transferred Assets   
by the end of the first plan year that begins after the corporate merger, acquisition or other similar   
transaction. (See section 6.10(2) for special rules regarding established practices and procedures   
for § 403(b) Plans.).05 Correction by plan amendment. (1)   Availability of correction by plan amendment in VCP or    
 Audit CAP. A Plan Sponsor of a Qualified Plan or § 403(b) Plan may use VCP or Audit CAP to   
correct Plan Document, Demographic, and Operational Failures by plan amendment, including to   
correct an Operational Failure by plan amendment to conform the terms of the plan to the plan's   
prior operations, provided that the amendment complies with the applicable Code requirements   
(including the requirements of §§ 401(a)(4), 410(b), 411(d)(6), and 403(b)(12), as applicable). In   
addition, a Plan Sponsor may adopt a plan amendment to reflect corrective action. For example,   
if the plan failed to satisfy the actual deferral percentage ("ADP") test required under § 401(k)   
(3) and the Plan Sponsor must make qualified nonelection contributions not already provided for   
under the plan, the plan may be amended to provide for qualified nonelective contributions. As   
explained further in sections 6.05 and 10.08(2), the issuance of a compliance statement constitutes   
a determination that the failure identified has been corrected, but does not constitute a determina-   
tion that the terms of the plan, including the corrective plan amendment, satisfy the qualification   
requirements in form.   
     
(2)   Availability of correction by plan amendment in SCP. SCP is available for corrections made   
by plan amendment, as provided in section 4.05(2)(a), (b), and (c). In addition, a Plan Sponsor   
may adopt a plan amendment to reflect corrective action. For example, if the plan failed to satisfy   
the ADP test required under § 401(k)(3) and the Plan Sponsor must make qualified nonelective   
contributions not already provided for under the plan, the plan may be amended to provide for   
qualified nonelective contributions.   
     
(a)   Correction of Operational Failure by plan amendment for a Qualified Plan or § 403(b) Plan.   
A Plan Sponsor of a Qualified Plan or § 403(b) Plan may correct an Operational Failure by plan   
amendment in order to conform the terms of the plan to the plan's prior operations only if the   
following conditions are satisfied:   
     
(i) The plan amendment would result in an increase of the benefit, right or feature.   
     
(ii) The provision of the increase in the benefit, right or feature to participants is permitted under   
the Code (including the requirements of §§ 401(a)(4), 410(b), 411(d)(6), and 403(b)(12), as ap-   
plicable), and satisfies the correction principles of section 6.02 and any other applicable rules of   
this revenue procedure.   
     
(b)   Operational Failure correction methods in accordance with Appendix B. In addition to cor-   
rection by plan amendment as described in section 4.05(2)(a), a Plan Sponsor of a Qualified Plan   
or § 403(b) Plan may use SCP to correct Operational Failures listed in Appendix B, section 2.07,   
by plan amendment to conform the terms of the plan to the plan's prior operations. Under SCP,   
these failures must be corrected in accordance with the correction methods set forth in Appendix   
B, section 2.07.   
     
(c)   Plan Document Failures. A Plan Sponsor of a Qualified Plan or § 403(b) Plan may use SCP to   
correct an eligible Plan Document Failure, as described in section 4.01(1)(b), only if the following   
conditions are satisfied:   
     
(i) The Qualified Plan or § 403(b) Plan has been issued a Favorable Letter, as respectively defined   
in sections 5.01(4) and 5.02(5).   
     
(ii) The Plan Sponsor satisfies the requirements in section 9 relating to correcting a Plan Docu-   
ment Failure. Thus, for example, the Plan Sponsor must adopt a corrective plan amendment by the   
end the correction period set forth in section 9.02..06 Availability of correction for Employer Eligibility Failures and Demographic Failures. SCP is   
not available for a Plan Sponsor to correct Employer Eligibility Failures or Demographic Failures..07 Availability of correction for a terminated plan. Correction of Qualification Failures and   
§ 403(b) Failures in a terminated plan may be made under VCP or Audit CAP, whether or not the   
plan trust or contract is still in existence..08 Availability of correction for an Orphan Plan. A failure in an Orphan Plan that is terminating   
may be corrected under VCP or Audit CAP if the party acting on behalf of the plan is an Eligible   
Party, as defined in section 5.03(2). See, generally, section 6.02(2)(e)(i). SCP is not available for   
correcting failures in Orphan Plans. In the case of a terminating Orphan Plan, the IRS may, in its   
discretion, waive the user fee. In such a case, the submission must include a request for a waiver   
of the user fee. See section 11.04(14)..09 Availability of correction for § 457(b) plans. The IRS will accept submissions relating to   
§ 457(b) plans on a provisional basis outside of EPCRS through standards that are similar to those   
that apply with respect to VCP filing under sections 10 and 11, as applicable, including proced-   
dures for filing a submission on the Pay.gov website. The availability of correction is generally   
limited to plans that are sponsored by governmental entities described in § 457(e)(1)(A). In the   
case of a § 457(b) plan that is an unfunded deferred compensation plan established for the benefit   
of top hat employees of a tax-exempt entity described in § 457(e)(1)(B), the IRS generally will not   
enter into an agreement to address problems associated with such a plan. However, the IRS may   
consider a submission for such a plan where, for example, the plan was erroneously established to   
benefit the entity's nonhighly compensated employees and the plan has been operated in a manner   
that is similar to a Qualified Plan..10 Egregious failures. (1)   In general. Egregious failures include: (a) a plan that has consistently   
and improperly covered only highly compensated employees; (b) a plan that provides more favor-   
able benefits for an owner of the employer based on a purported collective bargaining agreement   
where there has in fact been no good faith bargaining between bona fide employee representatives   
and the employer (see Notice 2003-24, 2003-1 C.B. 853, with respect to good faith bargaining and   
welfare benefit funds); or (c) a defined contribution plan where a contribution is made on behalf   
of a highly compensated employee that is several times greater than the dollar limit set forth in   
§ 415(c).   
     
(2)   SCP. SCP is not available to correct Operational Failures or Plan Document Failures that are   
egregious.   
     
(3)   VCP. VCP is available to correct egregious failures. However, the IRS reserves the right to   
impose a sanction that may be larger than the user fee described in Rev. Proc. 2021-4, 2021-1   
I.R.B. 157 (and its annual successors). For this purpose, an egregious failure would include any   
case in which the IRS concludes that the parties controlling the plan recognized that the action   
taken would constitute a failure and the failure either involves a substantial number of participants   
or beneficiaries or involves participants who are predominantly highly compensated employees.   
     
(4)   Audit CAP. Audit CAP is available to correct egregious failures..11 Diversion or misuse of plan assets. SCP, VCP, and Audit CAP are not available to correct fail-   
ures relating to the diversion or misuse of plan assets..12 Abusive tax avoidance transactions. (1)   Effect on Programs. (a)   SCP. With respect to SCP, in   
the event that the plan or the Plan Sponsor has been a party to an abusive tax avoidance transac-   
tion (as defined in section 4.12(2)), SCP is not available to correct any Operational Failure or Plan     
Document Failure that is directly or indirectly related to the abusive tax avoidance transaction.   
     
(b)   VCP. With respect to VCP, if the IRS determines that a plan or Plan Sponsor was, or may   
have been, a party to an abusive tax avoidance transaction (as defined in section 4.12(2)), then the   
matter will be discussed and coordinated with appropriate IRS personnel. The IRS may determine   
that the plan or the Plan Sponsor has been a party to an abusive tax avoidance transaction, and that   
the failures addressed in the VCP submission are related to that transaction. In those situations, the   
IRS will conclude the review of the submission without issuing a compliance statement and will   
refer the case for examination. However, if the IRS determines that the plan failures are unrelated   
to the abusive tax avoidance transaction or that no abusive tax avoidance transaction occurred,   
then the IRS will permit the VCP submission to address the failures identified in the VDP sub-   
mission, and may issue a compliance statement with respect to those failures. In no event may   
a compliance statement be relied on for the purpose of concluding that the plan or Plan Sponsor   
was not a party to an abusive tax avoidance transaction. In addition, even if it is concluded that   
the failures can be addressed pursuant to a VCP submission, the IRS reserves the right to make a   
referral of the abusive tax avoidance transaction matter for examination.   
     
(c)   Audit CAP and SCP (for plans Under Examination). For plans Under Examination, if the IRS   
determines that the plan or Plan Sponsor was, or may have been, a party to an abusive tax avoid-   
ance transaction, the matter may be discussed and coordinated with appropriate IRS personnel.   
With respect to plans Under Examination, an abusive tax avoidance transaction includes a trans-   
action described in section 4.12(2) and any other transaction that the IRS determines was designed   
to facilitate the impermissible avoidance of tax. Upon receiving a response from the appropriate   
IRS personnel, (i) if the IRS determines that a failure is related to the abusive tax avoidance trans-   
action, the IRS reserves the right to conclude that neither Audit CAP nor SCP is available for that   
failure, or (ii) if the IRS determines that satisfactory corrective actions have not been taken with   
regard to the transaction, the IRS reserves the right to conclude that neither Audit CAP nor SCP   
is available to the plan.   
     
(2)   Abusive tax avoidance      transaction defined. For purposes      of section 4.12(1) (except to the   
extent otherwise provided in section 4.12(1)(c)), an abusive tax avoidance transaction means any   
listed transaction under  § 1.6011-4(b)(2) and any other transaction identified as an abusive trans-   
action on the IRS website entitled "EP Abusive Tax Transactions."   
     
PART III.   
DEFINITIONS, CORRECTION PRINCIPLES, AND RULES OF GENERAL APPLICABILITY   
     
SECTION 5. DEFINITIONS   
     
The following definitions apply for purposes of this revenue procedure..01 Definitions for Qualified Plans. The definitions in this section 5.01 apply to Qualified Plans.   
     
(1)   Qualified Plan. The term "Qualified Plan" means a plan intended to satisfy the requirements   
of § 401(a) or 403(a).   
     
(2)   Qualification Failure. The term "Qualification Failure" means any failure that adversely af-   
fects the qualification of a plan. There are four types of Qualification Failures: (a) Plan Document   
Failures; (b) Operational Failures; (c) Demographic Failures; and (d) Employer Eligibility Fail-   
ures.   
     
(a)   Plan Document Failure. (i)   In general. The term "Plan Document Failure" means a plan pro-   
vision (or the absence of a plan provision) that, on its face, violates the requirements of § 401(a)   
or 403(a). A Plan Document Failure includes any Qualification Failure that is a violation of the   
requirements of § 401(a) or 403(a) and that is not an Operational Failure, Demographic Failure,   
or Employer Eligibility Failure. This term includes a Nonamender Failure, a failure to adopt Good   
Faith Amendments, and a failure to adopt Interim Amendments. A Plan Document Failure does   
not include a failure to adopt a discretionary plan amendment by the plan amendment deadline   
set forth in section 8.02 of Rev. Proc. 2016-37, 2016-29 I.R.B.136, as modified by Rev. Proc.   
2017-41, 2017-29 I.R.B. 92, and Rev. Proc. 2020-40, 2020-38 I.R.B. 575 (or section 5.05(2)   
of Rev. Proc. 2007-44, 2007-28 I.R.B. 54, as applicable). Pursuant to section 4.01(1)(b), a Plan   
Document Failure consisting of the initial failure to adopt a Qualified Plan may not be corrected   
under SCP.   
     
(ii)   Specific definitions relating to Plan Document Failures:   
     
(A) "   Good Faith Amendment   " includes the EGTRRA good faith amendments described in Notice   
2001-42, 2001-2 C.B.70, the amendment required for the plan to comply with the final regula-   
tions under § 401(a)(9) (see Rev. Proc. by 2002-29, 2002-1 C.B. 1176, as modified Rev. Proc.   
2003-10, 2003-1 C.B. 259), the amendment updating the mortality table to reflect the guidance   
in Rev. Rul. 2001-62, 2001-2 C.B.632, and the amendment updating the definition of compensa-   
tion, for purposes of § 415(c)(3), to include "deemed § 125 compensation" pursuant to Rev. Rul.   
2002-27, 2002-1 C.B. 925. For rules relating to a failure to adopt a Good Faith Amendment, see   
Rev. Proc. 2013-12.   
     
(B) "   Interim Amendment   " means an amendment with respect to a disqualifying provision that   
results in the failure of the plan to satisfy the qualification requirements of the Code by reason   
of a change in those requirements that is effective after December 31, 2001, or that is integral to   
such disqualifying provision. See section 15.02 of Rev. Proc. 2016-37, as modified, for Interim   
Amendment requirements for Pre-approved Plans. For Interim Amendments required to be adopt-   
ed in individually designed plans before January 1, 2017 (or before February 1, 2017, for Cycle A   
plans), see section 5.04 of Rev. Proc. 2007-44.   
     
(C) "   Nonamender Failure   " means a failure to adopt an amendment that corrects a disqualifying   
provision described in §1.401(b)-1(b) within the applicable remedial amendment period. In gener-   
al, a disqualifying provision includes a provision in the plan document that violates a qualification   
     requirement of the Code or the absence of a provision that causes the plan to fail to satisfy a quali-   
     fication requirement of the Code. A disqualifying provision also includes any provision designated   
     by the Commissioner as a disqualifying provision under §1.401(b)-1(b)(3). See sections 5 and   
     15 of Rev. Proc. 2016-37, as modified. For an individually designed plan, a Nonamender Failure   
     includes the failure to timely amend for provisions that appear on the Required Amendments List,   
     as described in Rev. Proc. 2016-37, as modified. For purposes of VCP, the initial failure to adopt   
     a Qualified Plan is not considered a Nonamender Failure.   
     
     (b)   Operational Failure. The term "Operational Failure" means a Qualification Failure (other than   
     an Employer Eligibility Failure) that arises solely from the failure to follow plan provisions. A   
     failure to follow the terms of the plan providing for the satisfaction of the requirements of § 401(k)   
     and (m) is considered to be an Operational Failure. A plan does not have an Operational Failure   
     to the extent the plan is permitted to be amended retroactively to reflect the plan's operations (for   
     example, pursuant to § 401(b)). In the situation where a Plan Sponsor timely adopted an amend-   
     ment and the plan was not operated in accordance with the terms of such amendment, the plan is   
     considered to have an Operational Failure.   
     
     (c)   Demographic Failure. The term "Demographic Failure" means a failure to satisfy the require-   
     ments of § 401(a)(4), 401(a)(26), or 410(b) that is not an Operational Failure or an Employer El-   
     igibility Failure. The correction of a Demographic Failure generally requires a corrective amend-   
     ment to the plan adding more benefits or increasing existing benefits (see § 1.401(a)(4)-11(g)).   
     
     (d)   Employer Eligibility Failure. The term "Employer Eligibility Failure" means the adoption of a   
     plan intended to include a qualified cash or deferred arrangement under § 401(k) by an employer   
     that fails to satisfy the employer eligibility requirements to establish a § 401(k) plan. An Employer   
     Eligibility Failure is not a Plan Document, Operational, or Demographic Failure.   
     
     (3)   Excess Amount; Excess Allocations; Overpayment. (a)   Excess Amount. The term "Excess   
     Amount" means a Qualification Failure due to a contribution, allocation, or similar credit that is   
     made on behalf of a participant or beneficiary to a plan in excess of the maximum amount per-   
     mitted to be contributed, allocated, or credited on behalf of the participant or beneficiary under   
     the terms of the plan or that exceeds a limitation on contributions or allocations provided in the   
     Code or regulations. Excess Amounts include: (i) an elective deferral or after-tax employee con-   
     tribution that is in excess of the maximum contribution under the plan; (ii) an elective deferral   
     or after-tax employee contribution made in excess of the limitation under § 415; (iii) an elective   
     deferral in excess of the limitation of § 402(g); (iv) an excess contribution or excess aggregate   
     contribution under § 401(k) or (m); (v) an elective deferral or after-tax employee contribution   
     that is made with respect to compensation in excess of the limitation of § 401(a)(17); and (vi)   
     any other employer contribution that exceeds a limitation under § 401(m) (but only with respect   
     to the forfeiture of nonvested matching contributions that are excess aggregate contributions),   
     411(a)(3)(G), or 415, or that is made with respect to compensation in excess of the limitation   
     under § 401(a)(17). However, an Excess Amount does not include a contribution, allocation, or   
     other credit that is made pursuant to a correction method provided under this revenue procedure   
     for a different Qualification Failure. Excess Amounts are limited to contributions, allocations, or   
     annual additions under a defined contribution plan, after tax employee contributions to a defined   
     benefit plan, and contributions or allocations that are to be made to a separate account (with actual   
     Earnings) under a defined benefit plan. See generally section 6.06 for the treatment and correction   
     of certain Excess Amounts.   
     
     (b)   Excess Allocation. The term "Excess Allocation" means an Excess Amount for which the   
     Code or regulations do not provide any corrective mechanism. Excess Allocations include Excess   
     Amounts as defined in section 5.01(3)(a)(i), (ii), (v), and (vi) (except with respect to § 401(m) or   
     411(a)(3)(G) violations). Excess Allocations must be corrected in accordance with section 6.06(2).   
     
     (c)   Overpayment. The term "Overpayment" means a Qualification Failure due to a payment being   
     made to a participant or beneficiary ("Overpayment recipient") that exceeds the amount payable   
     to the Overpayment recipient under the terms of the plan or that exceeds a limitation provided in   
     the Code or regulations. Overpayments include both payments from a defined benefit plan and   
     payments from a defined contribution plan that are either not made from the Overpayment recip-   
     ient's account under the plan or not permitted to be paid under the Code, the regulations, or the   
     terms of the plan. However, an Overpayment does not include a payment that is made pursuant to   
     a correction method provided under this revenue procedure for a different Qualification Failure.   
     Overpayments must be corrected in accordance with section 6.06(3) for defined benefit plans and   
     section 6.06(4) for defined contribution plans.   
     
     (4)   Favorable Letter. With respect to a Qualified Plan, the term "Favorable Letter" is defined in   
     the following manner.   
     
     (a)   Favorable Letter for individually designed Qualified Plans. In the case of an individually       
     designed Qualified Plan, the term "Favorable Letter" means a determination letter issued with   
     respect to the plan.   
     
     (b)   Favorable Letter for Pre-approved Plans. In the case of a Pre-approved Plan, the term "Favor-   
     able Letter" means a favorable opinion or advisory letter issued with respect to the most recently   
     expired six-year remedial amendment cycle under Rev. Proc. 2016-37, as modified. In the case of   
     a terminated Pre-approved Plan, the plan is treated as having a favorable opinion letter or advisory   
     letter if the plan is terminated prior to the expiration of the plan's current remedial amendment cy-   
     cle determined under the provisions of Rev. Proc. 2016-37, as modified, and the plan was amend-   
     ed to reflect the qualification requirements that applied as of the date of termination.   
     
     (5)   Maximum Payment Amount. The term "Maximum Payment Amount" means a monetary   
     amount that is approximately equal to the tax the IRS could collect upon plan disqualification and   
     is the sum for the open taxable years of the:   
     
     (a) tax on the trust (Form 1041, U.S. Income Tax Return for Estates and Trusts) (and any interest   
     or penalties applicable to the trust return);   
     
     (b) additional income tax resulting from the loss of employer deductions for plan contributions   
     (and any interest or penalties applicable to the Plan Sponsor's return);   
     
     (c) additional income tax resulting from income inclusion for participants in the plan (Form 1040,   
     U.S. Individual Income Tax Return), including the tax on plan distributions that have been rolled   
     over to other qualified trusts (as defined in 402(c)(8)(A)) or eligible retirement plans (as defined   
     in § 402(c)(8)(B)) and any interest or penalties applicable to the participants' returns;   
     
     (d) in the case of any participant loan that did not comply with the requirements of § 72(p)(2),   
     the tax the IRS could collect as a result of the loan not being excluded from gross income under   
     § 72(p)(2); and   
     
     (e) any other tax that results from a Qualification Failure that would apply but for the correction under   
     this revenue procedure.   
     
     (6)   Plan Sponsor. The term "Plan Sponsor" means the employer that establishes or maintains a   
     Qualified Plan for its employees.   
     
     (7)   Transferred Assets. The term "Transferred Assets" means plan assets that were received, in   
     connection with a corporate merger, acquisition, or other similar employer transaction, by the plan   
     in a transfer (including a merger or consolidation of plan assets) under § 414(l) from a plan spon-   
     sored by an employer that was not a member of the same controlled group as the Plan Sponsor   
     immediately prior to the corporate merger, acquisition, or other similar employer transaction. If a   
     transfer of plan assets related to the same employer transaction is accomplished through several   
     transfers, then the date of the transfer is the date of the first transfer.   
         
(8)   Pre-approved Plan. For purposes of this revenue procedure, the term "Pre-approved Plan"   
means:   
     
(a) a master plan, a prototype plan, or a volume submitter plan as described in Rev. Proc. 2015-36,   
2015-27 I.R.B. 20, sections 4.01, 4.02 and 13.01, respectively; and   
     
(b) a pre-approved plan described in section 4.07 of Rev. Proc. 2017-41, 2017-29 I.R.B. 92..02 Definitions for § 403(b) Plans. The definitions in this section 5.02 apply to § 403(b) Plans. For   
§403(b) Plans, the definitions under Rev. Proc. 2008-50 apply to failures that occurred in the taxable   
years beginning before January 1, 2009.   
     
(1)   Section 403(b) Plan. The term "§ 403(b) Plan" means a plan or program intended to satisfy the   
requirements of § 403(b).   
     
(2)   Section 403(b) Failure. The term "§ 403(b) Failure" means a failure that adversely affects   
the exclusion from income provided by § 403(b). There are four types of § 403(b) Failures: (a)   
Plan Document Failures; (b) Operational Failures; (c) Demographic Failures; and (d) Employer   
Eligibility Failures.   
     
(a)   Plan Document Failure. The term "Plan Document Failure" means a plan provision (or the   
absence of a plan provision) that, on its face, violates the requirements of § 403(b). Thus, for   
example, the failure of a plan to be adopted in written form or to be amended to reflect a new re-   
quirement within the plan's applicable remedial amendment period is a Plan Document Failure. If   
a plan has not been timely or properly amended during an applicable remedial amendment period   
with respect to provisions required to maintain the status of the plan under § 403(b), the plan has   
a Plan Document Failure. For purposes of this revenue procedure, a Plan Document Failure in-   
cludes any § 403(b) Failure that adversely affects the status of the plan under § 403(b) and that is   
not an Operational Failure, Demographic Failure, or Employer Eligibility Failure. Pursuant to sec-   
tion 4.01(1)(b), a Plan Document Failure consisting of the failure to adopt a written § 403(b) Plan   
timely in accordance with §1.403(b)-3(b)(3) and Notice 2009-3 may not be corrected under SCP.   
     
(b)   Operational Failure. The term "Operational Failure" means a § 403(b) Failure (other than an   
Employer Eligibility Failure) that arises solely from the failure to follow plan provisions. A fail-   
ure to follow the terms of the plan providing for the satisfaction of the requirements of §§ 403(b)   
(12)(ii) (relating to the availability of elective deferral contributions) and 401(m) (as applied to   
§ 403(b) Plans pursuant to § 403(b)(12)(A)(i)) is an Operational Failure. A plan does not have an   
Operational Failure to the extent the plan is permitted to be amended retroactively to reflect the   
plan's operations.   
     
(c)   Demographic Failure. The term "Demographic Failure" means a failure to satisfy the require-   
ments of § 401(a)(4), 401(a)(26), or 410(b) (as applied to § 403(b) Plans pursuant to § 403(b)(12)   
(A)(i)) that is not an Operational Failure or an Employer Eligibility Failure. The correction of a   
Demographic Failure generally requires a corrective amendment to the plan adding more benefits   
or increasing existing benefits (see §1.401(a)(4)-11(g)).   
     
(d)   Employer Eligibility Failure. The term "Employer Eligibility Failure" means the adoption of   
a plan intended to satisfy the requirements of § 403(b) by a Plan Sponsor that is not a tax-exempt   
organization described in § 501(c)(3) or a public educational organization described in § 170(b)   
(1)(A)(ii). An Employer Eligibility Failure is not a Plan Document, Operational, or Demographic   
Failure.   
     
(3)   Excess Amount. The term "Excess Amount" means a contribution or other credit that is made   
on behalf of a participant or beneficiary to a plan in excess of the maximum amount permitted to   
be contributed or credited on behalf of the participant or beneficiary under the terms of the plan   
or that exceeds a limitation on contributions provided in the Code or regulations. The term "Ex-   
cess Amount" includes any amount in excess of the amount permitted under the requirements of   
§ 402(g), 401(m), or 415. A contribution in excess of the limitation of § 415(c) is not an Excess   
Amount (or a § 403(b) Failure) if that excess is maintained in a separate account in accordance   
with the rules in the regulations under §§ 403(b) and 415. Such separate account is considered to   
be a § 403(c) annuity contract (or, if applicable, an amount to which § 61, 83, or 402(b) applies).   
A contribution in excess of the limitation of § 415(c) that is not maintained in a separate account   
in accordance with the rules set forth in regulations under §§ 403(b) and 415 is an Excess Amount.   
Thus, the correction principles in section 6.06 apply.   
     
(4)   Overpayment. The term "Overpayment" means a § 403(b) Failure due to a payment being   
made to a participant or beneficiary ("Overpayment recipient") that exceeds the amount payable   
to the Overpayment recipient under the terms of the plan or that exceeds a limitation provided in   
the Code or regulations. Overpayments include payments made from the Overpayment recipient's   
§ 403(b) custodial account or annuity contract under the plan that are not permitted to be paid un-   
der the Code, the regulations, or the terms of the plan. However, an Overpayment does not include   
a payment that is made pursuant to a correction method provided under this revenue procedure for   
a different § 403(b) Failure. Overpayments must be corrected in accordance with section 6.06(4).   
     
(5)   Favorable Letter. The term "Favorable Letter" means a Favorable Letter as described in sec-   
tion 6.10(2).   
     
(6)   Maximum Payment Amount. The term "Maximum Payment Amount" means a monetary   
amount that is approximately equal to the tax the IRS could collect as a result of the § 403(b)   
Failure and is the sum for the open taxable years of the:   
     
(a) additional income tax resulting from income inclusion for employees or other participants   
(Form 1040), including the tax on distributions that have been rolled over to other qualified trusts   
(as defined in § 402(c)(8)(A)) or eligible retirement plans (as defined in § 402(c)(8)(B)) and any     
interest or penalties applicable to the participants' returns; and   
     
(b) any other tax that results from a § 403(b) Failure that would apply but for correction under this   
revenue procedure.   
     
(7)   Plan Sponsor. The term "Plan Sponsor" means the employer that offers a § 403(b) Plan to its   
employees.   
     
(8)   Section 403(b) Pre-approved Plan. The term "§ 403(b) Pre-approved Plan" means a plan de-   
scribed in section 3.17 of Rev. Proc. 2013-22, 2013-18 I.R.B. 985..03 Definitions for Orphan Plans.   
     
(1)   Orphan Plan. With respect to VCP and Audit CAP, the term "Orphan Plan" means any Quali-   
fied Plan, § 403(b)Plan, or other plan with respect to which an "Eligible Party" (defined in section   
5.03(2)) has determined that the Plan Sponsor (a) no longer exists, (b) cannot be located, or (c) is   
unable to maintain the plan. However, the term "Orphan Plan" does not include any plan subject   
to Title I of the Employee Retirement Income Security Act of 1974 ("ERISA") that is terminated   
pursuant to 29 CFR 2578.1 of the Department of Labor regulations governing the termination of   
abandoned individual account plans.   
     
(2)   Eligible Party. The term "Eligible Party" means:   
     
(a) A court appointed representative with authority to terminate the plan and dispose of the plan's   
assets;   
     
(b) In the case of an Orphan Plan under investigation by the Department of Labor, a person or   
entity determined by the Department of Labor to have accepted responsibility for terminating the   
plan and distributing the plan's assets; or   
     
(c) In the case of a Qualified Plan to which Title I of ERISA has never applied, a surviving spouse   
who is the sole beneficiary of a plan that provided benefits to a participant who was (i) the sole   
owner of the business that sponsored the plan and (ii) the only participant in the plan..04 Earnings. The term "Earnings" refers to the adjustment of a principal amount to reflect subse-   
quent investment gains and losses, unless otherwise provided in a specific section of this revenue   
procedure..05 IRA. The term "IRA" means an individual retirement account (as defined in § 408(a)) or an   
individual retirement annuity (as defined in § 408(b))..06 SEP. The term "SEP" means a plan intended to satisfy the requirements of § 408(k). For pur-   
poses of this revenue procedure, the term SEP also includes a salary reduction SEP ("SARSEP")   
described in § 408(k)(6), if applicable..07 SIMPLE IRA Plan. The term "SIMPLE IRA Plan" means a plan intended to satisfy the re-   
quirements of § 408(p)..08 Under Examination. (1) The term "Under Examination" means: (a) a plan that is under an Em-   
ployee Plans examination (that is, an examination of a Form 5500 series or other Employee Plans   
examination); (b) a Plan Sponsor that is under an Exempt Organizations examination (that is, an   
examination of a Form 990 series or other Exempt Organizations examination); or (c) a plan that   
is under investigation by the Criminal Investigation Division of the IRS.   
     
(2) A plan that is under an Employee Plans examination includes any plan for which the Plan   
Sponsor, or an authorized representative, has received verbal or written notification from Em-   
ployee Plans of an impending Employee Plans examination, or of an impending referral for an   
Employee Plans examination, and also includes any plan that has been under an Employee Plans   
examination and is in Appeals or in litigation for issues raised in an Employee Plans examination.   
A plan is considered to be Under Examination if it is aggregated for purposes of satisfying the   
nondiscrimination requirements of § 401(a)(4), the minimum coverage requirements of § 410(b),   
or the requirements of § 403(b)(12)(A)(i), with any plan that is Under Examination. In addition, a   
plan is considered to be Under Examination with respect to a failure of a qualification requirement   
(other than those described in the preceding sentence) if the plan is aggregated with another plan   
for purposes of satisfying that qualification requirement (for example, § 401(a)(30), 415, or 416)   
and that other plan is Under Examination. For example, assume Plan A has a § 415 failure, Plan   
A is aggregated with Plan B only for purposes of § 415, and Plan B is Under Examination. In this   
case, Plan A is considered to be Under Examination with respect to the § 415 failure. However,   
if Plan A has a failure relating to the spousal consent rules under § 417 or the vesting rules of   
§ 411, Plan A is not considered to be Under Examination with respect to the § 417 or 411 failure.   
For purposes of this revenue procedure, the term aggregation does not include consideration of   
benefits provided by various plans for purposes of the average benefits test set forth in § 410(b)(2).   
     
(3) An Employee Plans examination also includes a case in which a Plan Sponsor has submitted   
any Form 5300 (Application for Determination for Employee Benefit Plan), Form 5307 (Appli-   
cation for Determination for Adopters of Modified Volume Submitter Plans), or Form 5301 (Ap-   
plication for Determination for Terminating Plan) and the Employee Plans agent notifies the Plan   
Sponsor, or an authorized representative, of possible failures, whether or not the Plan Sponsor   
is officially notified of an "examination." This would include a case where, for example, a Plan   
Sponsor has applied for a determination letter on plan termination, and an Employee Plans agent   
notifies the Plan Sponsor that there are partial termination concerns. In addition, if, during the   
review process, the agent requests additional information that indicates the existence of a failure   
not previously identified by the Plan Sponsor, the Plan is considered to be under an Employee   
Plans examination. If, in such a case, the determination letter request under review is subsequently   
withdrawn, the plan is nevertheless considered to be under an Employee Plans examination for   
purposes of eligibility under SCP and VCP with respect to those issues raised by the agent review-   
ing the determination letter application. The fact that a Plan Sponsor voluntarily submits a deter-   
mination letter application does not constitute a voluntary identification of a failure to the IRS. In   
order to be eligible for VCP, the Plan Sponsor (or the authorized representative) must identify each   
failure, in writing, to the reviewing agent before the agent recognizes the existence of the failure or   
addresses the failure in communications with the Plan Sponsor (or the authorized representative).   
     
(4) A Plan Sponsor that is under an Exempt Organizations examination includes any Plan Sponsor   
that has received (or whose authorized representative has received) verbal or written notification   
from Exempt Organizations of an impending Exempt Organizations examination or of an impend-   
ing referral for an Exempt Organizations examination and also includes any Plan Sponsor that has   
been under an Exempt Organizations examination and is now in Appeals or in litigation for issues   
raised in an Exempt Organizations examination.   
     
SECTION 6. CORRECTION PRINCIPLES AND RULES OF GENERAL APPLICABILITY.01 Correction principles; rules of general applicability. The general correction principles in sec-   
tion 6.02 and rules of general applicability in sections 6.03 through 6.13 apply for purposes of this   
revenue procedure..02 Correction principles. Generally, a failure is not corrected unless full correction is made with   
respect to all participants and beneficiaries, and for all taxable years (whether or not the taxable   
year is closed). Even if correction is made for a closed taxable year, the tax liability associated   
with that year will not be redetermined because of the correction. Correction is determined taking   
into account the terms of the plan at the time of the failure. Correction should be accomplished   
taking into account the following principles:   
     
(1)   Restoration of benefits. The  correction method should restore the plan to the position it would       
have been in had the failure not occurred, including restoration of current and former participants   
and beneficiaries to the benefits and rights they would have had if the failure had not occurred.   
     
(2)   Reasonable and appropriate correction. The correction should be reasonable and appropriate   
for the failure. Depending on the nature of the failure, there may be more than one reasonable   
and appropriate correction for the failure. For Qualified Plans and § 403(b) Plans, any correction   
method permitted under Appendix A or Appendix B is deemed to be a reasonable and appropriate   
method of correcting the related failure. Any correction method permitted under Appendix A or   
Appendix B applicable to a SEP, or a SIMPLE IRA Plan is similarly deemed to be a reasonable   
and appropriate method of correcting the related failure. If a plan has a different but analogous   
failure to one set forth in Appendix A or B (such as the failure to provide a matching contribution   
by a governmental plan that is not subject to § 401(m)), then the analogous correction method   
under Appendix A or B is generally available to correct the failure. Whether any other particular   
correction method is reasonable and appropriate is determined taking into account the applicable   
facts and circumstances and the following principles:   
     
(a) The correction method should, to the extent possible, resemble one already provided for in the   
Code, regulations, or other guidance of general applicability. For example, for Qualified Plans and   
§ 403(b) Plans, the correction method set forth in §1.402(g)-1(e)(2) would be the typical means of   
correcting a failure under § 402(g).   
     
(b) The correction method should keep plan assets in the plan, except to the extent the Code, regu-   
lations, or other guidance of general applicability provide for correction by distribution to partici-   
pants or beneficiaries or return of assets to the employer. For example, if an excess allocation (not   
in excess of the § 415 limits) made under a Qualified Plan was made for a participant under a plan   
(other than a § 401(k) plan), the excess should be reallocated to other participants or, depending   
on the facts and circumstances, used to reduce future employer contributions.   
     
(c) The correction method for failures relating to nondiscrimination should provide benefits for   
nonhighly compensated employees. For example, for Qualified Plans, the correction method set   
forth in §1.401(a)(4)-11(g) (rather than methods making use of the special testing provisions set   
forth in §1.401(a)(4)-8 or §1.401(a)(4)-9) would be the typical means of correcting a failure to   
satisfy nondiscrimination requirements. Similarly, the correction of a failure to satisfy the require-   
ments of § 401(k)(3) or 401(m)(2), or, for plan years beginning on or before December 31, 2001,   
the multiple use test of § 401(m)(9) (relating to nondiscrimination), solely by distributing excess   
amounts to highly compensated employees would not be the typical means of correcting such a   
failure.   
     
(d) The correction method should not violate another applicable specific requirement of § 401(a)   
or 403(b) (for example, § 401(a)(4), 411(d)(6), or 403(b)(12), as applicable), 408(k) for SEPs, or   
408(p) for SIMPLE IRA Plans, or a parallel requirement in Part 2 of Subtitle B of Title I of ERISA   
(for plans that are subject to Part 2 of Subtitle B of Title I of ERISA). If an additional failure is   
nevertheless created as a result of the use of a correction method in this revenue procedure, then   
that failure also must be corrected in conjunction with the use of that correction method and in   
accordance with the requirements of this revenue procedure.   
     
(e) If a correction method is one that another government agency has authorized with respect to   
a violation of legal requirements within its interpretive authority and that correction relates to a   
violation for which there is a failure to which this revenue procedure applies, then the IRS may   
take the correction method of the other governmental agency into account for purposes of this   
revenue procedure. For example:   
     
(i) If the plan is subject to ERISA, for a failure that results from the employer having ceased to   
exist, the employer no longer maintaining the plan, or similar reasons, the permitted correction   
is to terminate the plan and distribute plan assets to participants and beneficiaries in accordance   
with standards and procedures substantially similar to those set forth in 29 CFR 2578.1 of the   
Department of Labor regulations (relating to abandoned plans). This correction must satisfy four   
conditions. First, the correction must comply with standards and procedures substantially similar   
to those set forth in 29 CFR 2578.1. Second, the qualified termination administrator, based on   
plan records located and updated in accordance with the Department of Labor regulations, must   
have reasonably determined whether, and to what extent, the survivor annuity requirements of   
§§ 401(a)(11) and 417 apply to any benefit payable under the plan and must take reasonable steps   
to comply with those requirements (if applicable). Third, each participant and beneficiary must   
have been provided a nonforfeitable right to his or her accrued benefit as of the date of deemed   
termination under the Department of Labor regulations, subject to Earnings between that date and   
the date of distribution. Fourth, participants and beneficiaries must receive notification of their   
rights under § 402(f). In addition, notwithstanding correction under this revenue procedure, the   
IRS reserves the right to pursue appropriate remedies under the Code against any party who is   
responsible for the plan, such as the Plan Sponsor, plan administrator, or owner of the business,   
even in its capacity as a participant or beneficiary under the plan. See also Appendix A, section.09(1), for parallel rules for plans that are not subject to ERISA.   
     
(ii) In the case of a violation of the fiduciary standards imposed by Part 4 of Subtitle B of Title I of   
ERISA, correction under the Voluntary Fiduciary Correction Program (VFCP) established by the   
Department of Labor for a fiduciary violation for which there is a similar failure under this reve-   
nue procedure would generally be taken into account as correction under this revenue procedure.   
(See also section 7.3(b) of the Department of Labor's VFCP under which correction of a defaulted   
participant loan that provides for repayment in accordance with § 72(p)(2) requires only submis-   
sion of the correction under VCP and inclusion of the VCP compliance statement (with proof of   
any required corrective payment).)   
     
(3)   Consistency requirement. Generally, if more than one correction method is available to correct   
a type of failure for a plan year (or if there are alternative ways to apply a correction method),   
the correction method (or one of the alternative ways to apply the correction method) should be   
applied consistently in correcting all failures of that type for that plan year. Similarly, Earnings ad-   
justment methods generally should be applied consistently with respect to corrective contributions   
or allocations for a particular type of failure for a plan year. In the case of a group submission, the   
consistency requirement applies on a plan-by-plan basis.   
     
(4)   Principles regarding corrective allocations and corrective distributions. The following prin-   
ciples apply where an appropriate correction method includes the use of corrective allocations or   
corrective distributions:   
     
(a) Corrective allocations under a defined contribution plan should be based upon the terms of the   
plan and other applicable information at the time of the failure (including the compensation that   
would have been used under the plan for the period with respect to which a corrective allocation   
is being made) and should be adjusted for Earnings and forfeitures that would have been allocated   
to the participant's account if the failure had not occurred. However, a corrective allocation is not   
required to be adjusted for losses. Accordingly, corrective allocations must include gains and may   
be adjusted for losses. For additional information, see Appendix B, section 3, Earnings Adjust-   
ment Methods and Examples.   
     
(b) A corrective allocation to a participant's account because of a failure to make a required allo-   
cation in a prior limitation year is not considered an annual addition with respect to the participant   
for the limitation year in which the correction is made, but is considered an annual addition for   
the limitation year to which the corrective allocation relates. However, the normal rules of § 404,   
corrective allocation relates. However, the normal rules of § 404,   
regarding deductions, apply.   
     
(c) Corrective allocations should come only from employer nonelective contributions (including   
forfeitures if the plan permits their use to reduce employer contributions). For purpose of correct-   
ing a failed ADP, actual contribution percentage ("ACP"), or multiple use test, any amounts used   
to fund qualified nonelective contributions ("QNECs") must satisfy the definition of QNEC in   
§1.401(k)-6.   
     
(d) In the case of a defined benefit plan, a corrective distribution for an individual should be in-   
creased to take into account the delayed payment, in accordance with the plan's provisions for   
actuarial equivalence (after considering the applicable requirements of §§ 417(e)(3) and 415(b)   
or any other applicable provision) that were in effect on the date that the distribution should have   
been made. A corrective distribution is not subject to the requirements of § 417(e)(3) if it is made   
to make up for missed payments with respect to a benefit that is not subject to the requirements   
of § 417(e)(3).   
     
(e)(i) In the case of a single employer defined benefit plan, a payment of benefits that fails to   
satisfy the requirements of § 436(b), (c), or (e) can be corrected by the Plan Sponsor (including   
another person acting on behalf of the Plan Sponsor) making a contribution to the plan equal to the   
following amount (with interest up to the date of the contribution): (A) in the case of a failure to   
satisfy § 436(b) with respect to an unpredictable contingent event benefit, the amount described in   
§ 436(b)(2) with respect to that benefit; (B) in the case of a failure to satisfy § 436(c) with respect   
to an amendment, the amount described in § 436(c)(2) with respect to that amendment; and (C)   
in the case of a failure to satisfy § 436(e), the amount described in § 436(e)(2) with respect to that   
failure. See also section 6.06(3) for correction of an Overpayment (including a payment of bene-   
fits that exceeds the limitations imposed by § 436(d) or 436(b), (c), or (e)).   
     
(ii) A corrective distribution or a corrective amendment (where a correction is accomplished   
through a plan amendment) is not subject to the requirements of § 436, but, if the plan is subject to   
a restriction pursuant to § 436 at the time of the correction, generally the Plan Sponsor must make   
a contribution to the plan at the time of the correction in the following amount: (A) if a corrective   
distribution is made in a single-sum payment or other prohibited payment (as defined in § 436(d)   
(5)) at a time when the plan is subject to a restriction pursuant to § 436(d), the Plan Sponsor must   
generally contribute to the plan the amount of that corrective distribution (but only half of the cor-   
rective distribution must be contributed if the payment is made at a time when the plan is subject   
to a restriction pursuant to § 436(d)(3)); and (B) if a corrective amendment is made at a time when   
the plan is subject to a restriction pursuant to § 436(c), the Plan Sponsor must generally contribute   
to the plan an amount equal to the increase in the funding target of the plan (as defined in § 430)   
attributable to that amendment. No contribution is required to be made under this paragraph (e)   
(ii) if the corrective distribution is made in a form that is not a prohibited payment (for example,   
if the correction is made by actuarially increasing future payments that are made in a form that is   
not a prohibited payment).   
     
(iii) Any contribution made by the Plan Sponsor pursuant to this paragraph (e) is treated in the   
same manner as a "section 436 contribution" (as defined in § 1.436-1(j)(7)). Thus, the contribu-   
tion is treated as separate from a minimum required contribution under § 430 and is disregarded   
in determining the amount added to a prefunding balance under § 430(f)(6). See §1.436-1(f)(2)   
generally for rules relating to § 436 contributions.   
     
(f) In the case of a defined contribution plan, a corrective contribution or distribution should be ad-   
justed for Earnings from the date of the failure (determined without regard to any Code provision   
which permits a corrective contribution or distribution to be made at a later date).   
     
(5)   Special exceptions to full correction. In general, a failure must be fully corrected. Although the   
mere fact that correction is inconvenient or burdensome is not enough to relieve a Plan Sponsor   
of the need to make full correction, full correction may not be required in certain situations if it   
is unreasonable or not feasible. Even in these situations, the correction method adopted must be   
one that does not have significant adverse effects on participants and beneficiaries or the plan, and   
that does not discriminate significantly in favor of highly compensated employees. The exceptions   
described below specify those situations in which full correction is not required.   
     
(a)   Reasonable estimates. If either (i) it is possible to make a precise calculation but the probable   
difference between the approximate and the precise restoration of a participant's benefits is insig-   
nificant and the administrative cost of determining precise restoration would significantly exceed   
the probable difference or (ii) it is not possible to make a precise calculation (for example, where   
it is impossible to provide plan data), reasonable estimates may be used in calculating appropriate   
correction. If it is not feasible to make a reasonable estimate of what the actual investment results   
would have been, a reasonable interest rate may be used. For this purpose, the interest rate used   
by the Department of Labor's VFCP Online Calculator is deemed to be a reasonable interest   
rate. The calculator can be found at https://www.dol.gov/agencies/ebsa/employers-and-advisers/   
plan-administration-and-compliance/correction-programs/vfcp.   
     
(b)   Delivery of small benefits.     If the total corrective distribution due a participant or beneficiary is     
$75 or less, the Plan Sponsor is not required to make the corrective distribution if the reasonable   
direct costs of processing and delivering the distribution to the participant or beneficiary would   
exceed the amount of the distribution. This section 6.02(5)(b) does not apply to corrective con-   
tributions. Corrective contributions are required to be made with respect to a current or former   
participant, without regard to the amount of the corrective contributions.   
     
(c)   Recovery of small Overpayments. Generally, if the total amount of an Overpayment to an   
Overpayment recipient is $250 or less, the Plan Sponsor is not required to seek the return of the   
Overpayment from the Overpayment recipient. Also, the Plan Sponsor is not required to notify the   
Overpayment recipient that an Overpayment of $250 or less is ineligible for favorable tax treat-   
ment accorded to distributions from the plan (and, specifically, is ineligible for tax-free rollover).   
     
(d)   Locating lost participants. (i) Reasonable actions must be taken to find all current and former   
participants and beneficiaries to whom additional benefits are due, but who have not been located   
after a mailing to the last known address. In general, such actions include, but are not limited to,   
a mailing to the individual's last known address using certified mail, and, if that is unsuccessful,   
an additional search method, such as the use of a commercial locator service, a credit reporting   
agency, or internet search tools. Depending on the facts and circumstances, the use of more than   
one of these additional search methods may be appropriate. A Plan Sponsor will not be considered   
to have failed to correct a failure due to the inability to locate an individual if reasonable actions   
to locate the individual have been undertaken in accordance with this paragraph; provided that, if   
the individual is later located, the additional benefits are provided to the individual at that time.   
     
(ii) The IRS Letter Forwarding Program was modified to provide that the IRS would no longer   
forward letters from individuals, companies or organizations that control assets that may be due   
taxpayers. See Rev. Proc. 2012-35, 2012-37 I.R.B. 341. Therefore, the IRS Letter Forwarding   
Program is not available as a means to search for participants and beneficiaries to whom benefits   
under the plan are due.   
     
(e)   Small Excess Amounts. Generally, if the total amount of an Excess Amount with respect to the   
benefit of a participant or beneficiary is $250 or less, the Plan Sponsor is not required to distribute   
or forfeit such Excess Amount. However, if the Excess Amount exceeds a statutory limit, the par-   
ticipant or beneficiary must be notified that the Excess Amount, including any investment gains, is   
not eligible for favorable tax treatment accorded to distributions from the plan (and, specifically, is   
not eligible for tax-free rollover). See section 6.06(1) for such notice requirements.   
     
(f)   Orphan Plans. The IRS retains the discretion to determine under VCP and Audit CAP whether   
full correction will be required with respect to a terminating Orphan Plan.   
     
(6)   Correction principle for plan loan failures. In the case of a plan loan failure corrected in ac-   
cordance with section 6.07(3)(b), (c), or (d), the participant is generally responsible for paying the   
corrective payment. However, with respect to the failure listed in section 6.07(3)(d), the employer   
should pay a portion of the correction payment on behalf of the participant equal to the interest   
that accumulates as a result of such failure, generally determined at a rate equal to the greater of   
the plan loan interest rate or the rate of return under the plan.   
     
(7)   Correction for exclusion of employees with respect to elective deferrals or after-tax employee    
 contributions. If a Qualified Plan or § 403(b) Plan has an Operational Failure that consists of   
excluding an employee that should have been eligible to make an elective deferral or an after-tax   
employee contribution, the employer should contribute to the plan on behalf of the excluded em-   
ployee an amount that makes up for the value of the lost opportunity for the employee to have a   
portion of his or her compensation contributed to the plan accumulated with earnings tax deferred   
in the future. This correction principle applies solely to this limited circumstance. It does not, for   
example, extend to the correction of a failure to satisfy a nondiscrimination test, such as, the ADP   
test pursuant § 401(k)(3) and the ACP test pursuant to § 401(m)(2). Specific  methods and exam-   
ples to correct this failure are provided in Appendix A, section.05, and Appendix B, section 2.02.   
Similarly, the methods and examples provided for correcting this failure do not extend to other   
failures. Thus, the correction methods and the examples in Appendix A, section.05 and Appendix   
B, section 2.02, cannot, for example, be used to correct ADP/ACP failures.   
     
(8)   Correction by plan amendment in VCP, Audit CAP, and SCP. For the availability of correction   
by plan amendment, see section 4.05.   
     
(9)   Reporting. Any corrective distributions from the plan should be properly reported..03 Correction of an Employer Eligibility Failure. (1) The permitted correction of an Employer   
Eligibility Failure is the cessation of all contributions (including elective deferrals and after-tax   
employee contributions). For VCP submissions, the cessation must occur no later than the date   
the submission under VCP is filed. The assets in such a plan are to remain in the trust, annuity   
contract, or custodial account and are to be distributed no earlier than the occurrence of one of the   
applicable distribution events, for example, for § 403(b) Plans, an event described in § 403(b)(7)   
(to the extent the assets are held in custodial accounts) or § 403(b)(11) (for those assets invested in   
annuity contracts that would be subject to § 403(b)(11) restrictions if the employer were eligible).   
     
(2) Cessation of contributions is not required if continuation of contributions would not be an Em-   
ployer Eligibility Failure (for example, with respect to a tax-exempt employer that may maintain a   
§ 401(k) plan after 1996). In the case of a § 403(b) Failure that is an Employer Eligibility Failure,   
correction may include treating contributions as not being excluded under § 403(b) (and thus the   
contributions would be treated as having been contributed, for example, to an annuity contract to   
which § 403(c) applies).   
     
(3) A plan that is corrected through VCP or Audit CAP is treated as subject to all of the require-   
ments and provisions of §§ 401(a) for  a Qualified Plan, 403(b) for a § 403(b) Plan, 408(k) for   
a SEP, and 408(p) for a SIMPLE IRA Plan (including Code provisions relating to rollovers).   
Therefore, the Plan Sponsor must also correct all other failures in accordance with this revenue   
procedure.   
     
(4) If correction is accomplished under VCP or Audit CAP in accordance with the requirements   
of this section 6.03, then any rollovers made from the plan pursuant to a distributable event are   
deemed to have been made from an eligible retirement plan (as defined in § 402(c)(8)(B)) for the   
purpose of determining whether the amounts qualify as an eligible rollover distribution under   
§ 402(c) or 403(b)(8) (including the determination of excess contributions that are subject to the   
§ 4973 excise tax)..04 Correction of a failure to obtain spousal consent. (1)   In general. Failures to obtain spousal   
consent described in this section 6.04 may be corrected under VCP, SCP, or Audit CAP. Normally,   
the correction method for a failure to obtain spousal consent for a distribution that is subject to the   
spousal consent rules under §§ 401(a)(11) and 417 is similar to the correction method described   
in Appendix A, section.07. The Plan Sponsor must notify the affected participant and spouse (the   
spouse to whom the participant was married at the time of the distribution), so that the spouse can   
provide spousal consent to the distribution actually made or the participant may repay the distri-   
bution and receive a qualified joint and survivor annuity.   
     
(2)   Alternative correction methods when spousal consent is not obtained. (a)   In general. As al-   
ternatives to the correction method in section 6.04(1), correction for a failure to obtain spousal   
consent may be made under either section 6.04(2)(b) or section 6.04(2)(c).   
     
(b)   QJSA option. In the event that spousal consent to the prior distribution is not obtained (for   
example, because the spouse chooses not to consent, the spouse does not respond to the notice, or   
the spouse cannot be located), the spouse is entitled to a benefit under the plan equal to the portion   
of the qualified joint and survivor annuity that would have been payable to the spouse upon the   
death of the participant had a qualified join and survivor annuity been provided to the participant   
under the plan at the annuity starting date for the prior distribution. Such spousal benefit must be   
provided if a claim is made by the spouse.   
     
(c)   Election between annuity and single-sum payment. In the event that spousal consent to the   
prior distribution is not obtained, the plan may offer the spouse the choice between (i) the survivor   
annuity benefit described in section 6.04(2)(b) or (ii) a single sum payment equal to the actuarial   
present value of that survivor annuity benefit (calculated using the applicable interest rate and   
mortality table under § 417(e)(3)). Any such single-sum payment is treated in the same manner   
as a distribution under § 402(c)(9) for purposes of rolling over the payment to an IRA or other   
eligible retirement plan. In the event that the plan is subject to a restriction on the payment of sin-   
gle sums pursuant to § 436(d) at the time the plan offers this choice to the spouse and the spouse   
elects to receive a single-sum payment, the Plan Sponsor must contribute to the plan the applicable   
amount under section 6.02(4)(e)(ii)(A)..05 Determination letter application not permitted. (1)   In general. A determination letter applica-   
tion may not be submitted with a VCP submission.   
     
(a)   Issuance of compliance statement or closing agreement for Plan Document Failures corrected    
 through plan amendment under VCP or Audit CAP. The issuance of a compliance statement or   
closing agreement for Plan Document Failures corrected through plan amendment under VCP or   
Audit CAP does not constitute a determination that the terms of the plan, including the corrective   
plan amendment, satisfy the qualification requirements in form. See section 10.08(2)(a) and (b).   
     
(b)   Issuance of compliance statement or closing agreement for Operational Failures corrected    
 through plan amendment under VCP or Audit CAP. If a Plan Sponsor submits a VCP filing cor-   
recting an Operational Failure through a plan amendment or corrects such a failure under Audit   
CAP, and the plan amendment is accepted as a proper correction, then the compliance statement   
under VCP or closing agreement issued under Audit CAP constitutes a determination that the   
Operational Failure has been corrected, but is not a determination that the terms of the plan, in-   
cluding the corrective plan amendment, satisfy the qualification requirements in form. See section   
10.08(2)(c).   
     
(2)   Corrective amendments to Pre-approved Plans. (a)   Effect of corrective amendment. Generally,   
under VCP or Audit CAP, a Plan Sponsor that is an adopter of a Pre-approved Plan or a § 403(b)   
Pre-approved Plan may amend its plan to correct a Qualification Failure or a § 403(b) Failure   
(provided the requirements of EPCRS are satisfied and the amendment satisfies the requirements   
of the Code). In some cases, the corrective amendment is not provided for among plan provision   
options that were pre-approved when the opinion or advisory letter was issued with respect to the   
plan. As a result, adopting such a corrective amendment would cause the Plan Sponsor to lose   
reliance on the plan's opinion or advisory letter, except in the limited circumstances provided in   
section 6.05(2)(b).   
     
(b)   Exception for certain amendments. In the case of a Pre-approved Plan or a § 403(b) Pre-ap-   
proved Plan, the adoption of a plan provision required to correct a failure under VCP or Audit   
CAP that is not provided for in the adoption agreement will not cause the Plan Sponsor to lose   
its reliance on the plan's opinion or advisory letter, provided that: (i) the corrective amendment   
would otherwise be permitted under the rules for Pre-approved Plans or § 403(b) Pre-approved   
Plans, as applicable, and (ii) no other modification has been made to the plan that would cause the   
plan to lose its reliance on the opinion or advisory letter. If these conditions are satisfied, the Plan   
Sponsor will be allowed to continue to rely on the plan's opinion or advisory letter. In addition, the   
adoption of the corrective amendment will not cause the Pre-approved Plan to lose its eligibility   
to remain within the six-year remedial amendment cycle provided for in Rev. Proc. 2016-37, as   
modified, on a continuing basis until the expiration of the next six-year remedial amendment cycle   
described in section 16.01 of Rev.  Proc. 2016-37, as modified..06 Special rules relating to Excess Amounts. (1)   Treatment of Excess Amounts. A distribution of   
an Excess Amount is not eligible for the favorable tax treatment accorded to distributions from   
Qualified Plans or § 403(b) Plans (such as eligibility for tax-free rollover). Thus, for example, if   
such a distribution was contributed to an IRA, the contribution is not a valid rollover contribution   
for purposes of determining the amount of excess contributions (within the meaning of § 4973) to   
the individual's IRA. A distribution of an Excess Amount is generally treated in the manner de-   
scribed in section 3 of Rev. Proc. 92-93, 1992-2 C.B. 505 (relating to the corrective disbursement   
of elective deferrals). The distribution must be reported on Form 1099-R, Distributions From   
Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., for the   
year of distribution with respect to each participant or beneficiary receiving such a distribution   
Except as otherwise provided in section 6.02(5)(c) with respect to recovery of small Overpay-   
ments, where an Excess Amount has been or is being distributed, the Plan Sponsor must notify the   
recipient that (a) an Excess Amount has been or will be distributed and (b) an Excess Amount is   
not eligible for favorable tax treatment accorded to distributions from an eligible retirement plan,   
as defined in § 402(c)(8)(B) (and, specifically, is not eligible for rollovers).   
     
(2)   Correction of Excess Allocations. In general, an Excess Allocation is corrected in accordance   
with the Reduction of Account Balance Correction Method set forth in this paragraph. Under this   
method, the account balance of an employee who received an Excess Allocation is reduced by the   
Excess Allocation (adjusted for Earnings). If the Excess Allocation would have been allocated to   
other employees in the year of the failure had the failure not occurred, then that amount (adjusted   
for Earnings) is reallocated to those employees in accordance with the plan's allocation formula.   
If the improperly allocated amount would not have been allocated to other employees absent the   
failure, that amount (adjusted for Earnings) is placed in a separate account that is not allocated   
on behalf of any participant or beneficiary (an unallocated account) established for the purpose of   
holding Excess Allocations, adjusted for Earnings, to be used to reduce employer contributions   
(other than elective deferrals) in the current year or succeeding year. While such amounts remain   
in the unallocated account, the employer is not permitted to make contributions to the plan other   
than elective deferrals. Excess Allocations that are attributable to elective deferrals or after-tax   
employee contributions (adjusted for Earnings) must be distributed to the participant. For quali-   
fication purposes, an Excess Allocation that is corrected pursuant to this paragraph is disregarded   
for purposes of §§ 402(g) and 415, the ADP test of § 401(k)(3), and the ACP test of § 401(m)(2).   
If an Excess Allocation resulting from a violation of § 415 consists of annual additions attributable   
to both employer contributions and elective deferrals or after-tax employee contributions, then the   
correction of the Excess Allocation is completed by first distributing the unmatched employee's   
after-tax contributions (adjusted for Earnings) and then the unmatched employee's elective defer-   
rals (adjusted for Earnings). If any excess remains, and is attributable to either elective deferrals   
or after-tax employee contributions that are matched, the excess is apportioned first to after-tax   
employee contributions with the associated matching employer contributions and then to elective   
deferrals with the associated matching employer contributions. Any matching contribution or non-   
elective employer contribution (adjusted for Earnings) which constitutes an Excess Allocation is   
then forfeited and placed in an unallocated account established for the purpose of holding Excess   
Allocations to be used to reduce employer contributions in the current year and succeeding year.   
Such unallocated account is adjusted for Earnings. While such amounts remain in the unallocated   
account, the employer is not permitted to make contributions (other than elective deferrals) to the   
plan.   
     
(3)   Correction of Overpayments (defined benefit plans). An Overpayment from a defined benefit       
plan is corrected in accordance with the rules set forth in this section 6.06(3) and Appendix B,   
section 2.05.   
     
(a) In general, subject to the conditions set forth in section 4.05 (which permits correction by plan   
amendment under VCP, Audit CAP, and, under limited circumstances, SCP), a Plan Sponsor may   
correct an Overpayment by adopting a retroactive amendment to conform to the plan's operation.   
     
(b) If the Overpayment is not corrected by plan amendment, the Plan Sponsor may correct the   
Overpayment in accordance with the correction methods set forth in section 6.06(3)(c) and (d) and   
Appendix B, section 2.05. In those cases, the following rules apply:   
     
(i) With regard to Overpayments involving periodic payments, future payments must be reduced   
as soon as practicable either to reflect the correct amount payable to the Overpayment recipient   
under the terms of the plan, or to satisfy a limitation provided in the Code or regulations;   
     
(ii) Except as provided in section 6.02(5)(c) with respect to the recovery of small Overpayments,   
the Plan Sponsor must notify the Overpayment recipient in writing that the Overpayment is not   
eligible for favorable tax treatment accorded to distributions from an eligible retirement plan, as   
defined in § 402(c)(8)(B) (and, specifically, is not eligible for tax-free rollover), and   
     
(iii) Except as provided in section 6.02(5)(c) with respect to the recovery of small Overpayments,   
and except as otherwise provided in this section 6.06(3) and Appendix B, section 2.05, to the ex-   
tent the amount of an Overpayment adjusted for Earnings at the plan's earnings rate is not repaid   
to the plan, the Plan Sponsor or another person must contribute the difference to the plan.   
     
(c) An Overpayment may be corrected in accordance with the return of Overpayment correction   
method (including repayment through an installment agreement) or the adjustment of future pay-   
ments correction method, as described in Appendix B, section 2.05(2). Plan Sponsors may permit   
an Overpayment recipient to choose the method of repayment that will apply to the correction of   
the Overpayment.   
     
(d) If the applicable requirements are satisfied, an Overpayment may be corrected in accordance   
with the funding exception correction method described in Appendix B, section 2.05(3), or the   
contribution credit correction method described in Appendix B, section 2.05(4).   
     
(i) In general, under the funding exception correction method, in the case of a plan subject to   
§ 436, no corrective payments are necessary with regard to an Overpayment, provided that the   
certified or presumed AFTAP determined under § 436 that is applicable to the plan at the date of   
correction is equal to at least 100 percent (or, in the case of a multiemployer plan, the plan's most   
recent annual funding certification indicates that the plan is not in critical, critical and declining,   
or endangered status, as defined in § 432, determined at the date of correction). As provided in   
section 6.06(3)(b)(i), future benefit payments to an Overpayment recipient must be reduced to the   
correct benefit payment amount. For purposes of EPCRS, no further corrective payments from   
any party are required, no further reductions to future benefit payments to an Overpayment recip-   
ient, or any spouse or beneficiary of an Overpayment recipient, are permitted, and no further cor-   
rective payments from an Overpayment recipient, or any spouse or beneficiary of an Overpayment   
recipient, are permitted. See Appendix B, section 2.05(3), for additional details and eligibility   
requirements regarding the funding exception correction method.   
     
(ii) Under the contribution credit correction method, in general, the amount of Overpayments   
required to be repaid to the plan is the amount of the Overpayments reduced (but not below   
zero) by: (A) the cumulative increase in the plan's minimum funding requirements attributable to   
the Overpayments (including the increase attributable to the overstatement of liabilities, whether   
funded through cash contributions or through the use of a funding standard carryover balance,   
prefunding balance, or funding standard account credit balance) beginning with (1) the plan year   
for which the Overpayments are taken into account for funding purposes, through (2) the end of   
the plan year preceding the plan year for which the corrected benefit payment amount is taken   
into account for funding purposes; and (B) certain additional contributions in excess of minimum   
funding requirements paid to the plan after the first of the Overpayments was made. This reduction   
is referred to as a "contribution credit." As provided in section 6.06(3)(b)(i), future benefit pay-   
ments to an Overpayment recipient must be reduced to the correct benefit payment amount. For   
purposes of EPCRS, if the amount of the Overpayments is reduced to zero after the contribution   
credit is applied, no further corrective payments from any party are required, no further reduc-   
tions to future benefit payments to an Overpayment recipient, or any spouse or beneficiary of an   
Overpayment recipient, are permitted, and no further corrective payments from an Overpayment   
recipient, or any spouse or beneficiary of an Overpayment recipient, are permitted. However, if   
a net Overpayment remains after the application of the contribution credit, the Plan Sponsor or   
another party must take further action to reimburse the plan for the remainder of the Overpayment.   
See Appendix B, section 2.05(4), for additional details and eligibility requirements regarding the   
contribution credit correction method.   
     
(e) Depending on the nature of the Overpayment, other appropriate correction methods may be   
used. An appropriate correction method may include using rules similar to the correction methods   
described in Appendix B, section 2.05, but having the Plan Sponsor or another person contribute   
the amount of the Overpayment (with appropriate interest) to the plan instead of seeking recoup-   
ment from an Overpayment recipient. Any other correction method used must satisfy the correc-   
tion principles of section 6.02 and any other applicable rules in this revenue procedure.   
     
(4)   Correction of Overpayments (defined contribution plans and § 403(b) Plans).    An Overpay-   
ment from a defined contribution plan or § 403(b) Plan is corrected in accordance with the rules   
set forth in this section 6.06(4) and Appendix B, section 2.04.   
     
(a)   Correction by plan amendment. In general, subject to the conditions set forth in section 4.05   
(which permits correction by plan amendment under VCP, Audit CAP, and, under limited circum-   
stances, SCP), a Plan Sponsor may correct an Overpayment by amending the plan to conform to   
the plan's operation.   
     
(b)   Rules relating to Overpayment correction methods. If the Overpayment is not corrected by   
plan amendment, the Plan Sponsor may correct the Overpayment in accordance with the correc-   
tion methods set forth in sections 6.06(4)(c), (d), and (e), and Appendix B, section 2.04. In those   
cases, the following rules apply:   
     
(i) With regard to Overpayments involving periodic payments, future payments must be reduced   
as soon as practicable either to reflect the correct amount payable to the Overpayment recipient   
under the terms of the plan, or to satisfy a limitation provided in the Code or regulations;   
     
(ii) Except as provided in section 6.02(5)(c) with respect to the recovery of small Overpayments,   
the Plan Sponsor must notify the Overpayment recipient in writing that the Overpayment was not   
eligible for favorable tax treatment accorded to distributions from an eligible retirement plan, as   
defined in § 402(c)(8)(B), (and, specifically, was not eligible for tax-free rollover), and   
     
(iii) Except as provided in section 6.02(5)(c) with respect to the recovery of small Overpayments,   
to the extent the amount of an Overpayment adjusted for Earnings at the plan's earnings rate from   
the date of distribution to the date of the correction is not repaid to the plan, the Plan Sponsor or   
another person must contribute the difference to the plan. The preceding sentence does not apply   
when the failure arose solely because a payment was made from the plan to an Overpayment re-   
cipient in the absence of a distributable event (but was otherwise determined in accordance with   
the terms of the plan (for example, an impermissible in-service distribution)).   
     
(c)   Return of Overpayment correction method. An Overpayment may be corrected in accordance   
with the return of Overpayment correction method (including repayment through an installment   
agreement). Under this method, the employer takes reasonable steps to have the Overpayment   
repaid to the plan by the Overpayment recipient, adjusted for Earnings at the plan's earnings rate   
from the date of the distribution to the date of the correction of the Overpayment. Plan Sponsors   
may permit an Overpayment recipient to choose the method of repayment that will apply to the   
correction of the Overpayment.   
     
(d)   Unallocated account. Except as provided in section 6.06(4)(e), a corrected Overpayment,   
adjusted for Earnings at the plan's earnings rate to the date of the repayment, is to be placed in an   
unallocated account, as described in section 6.06(2), to be used to reduce employer contributions   
(other than elective deferrals) in the current year and succeeding year(s) (or, if the amount would   
have been allocated to other eligible employees who were in the plan for the year of the failure   
if the failure had not occurred, then that amount is reallocated to the other eligible employees in   
accordance with the plan's allocation formula).   
     
(e)   Repayment by the Overpayment recipient. To the extent an Overpayment results solely from a   
distribution of an Overpayment recipient's benefit under the plan in the absence of a distributable   
event but the Overpayment was otherwise determined in accordance with the terms of the plan,   
any amount returned to the plan by the Overpayment recipient is to be allocated to his or her   
account.   
     
(f)   Other appropriate correction methods. Depending on the nature of the Overpayment, other   
appropriate correction methods may be used. An appropriate correction method may include using   
rules similar to the correction method in section 6.06(4)(b) but having the employer or another   
person contribute the amount of the Overpayment (with appropriate interest) to the plan instead   
of seeking recoupment from an Overpayment recipient. Any other correction method used must   
satisfy the correction principles of section 6.02 and any other applicable rules of this revenue   
procedure..07 Correction of plan loan failures. (1)   In general. Plan loan failures may be corrected under VCP,   
SCP, or Audit CAP, unless otherwise specified in this section 6.07.   
     
(2)   Plan loan failures treated as deemed distributions under § 72(p).    Unless correction is made in   
accordance with section 6.07(3) (to the extent applicable), a deemed distribution under § 72(p)(1)   
in connection with a failure relating to a plan loan to a participant must be reported on Form 1099-   
R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance   
Contracts, etc., with respect to the affected participant, and any applicable income tax withholding   
amount that was required to be paid in connection with the failure (see §1.72(p)-1, Q&A-15) must   
be paid by the employer. In this case, the deemed distribution may be reported on Form 1099-R   
with respect to the affected participant for the year of correction (instead of the year of the failure).   
     
(3)   Correction methods for certain § 72(p) plan loan failures. (a)   In general. The correction meth-   
ods set forth in section 6.07(3)(b), (c), and (d) apply to plan loans that do not comply with one   
or more requirements of § 72(p)(2); however, these correction methods are not available if the   
maximum period for repayment of the loan pursuant to § 72(p)(2)(B) has expired. Further, the   
IRS reserves the right to limit the use of these correction methods to situations that it considers   
appropriate, for example, if the loan failure is caused by employer action. A deemed distribution   
corrected under section 6.07(3)(b), (c), or (d) is not required to be reported on Form 1099-R, and   
corrective payments under section 6.07(3) do not result in the affected participant having addition-   
al basis in the plan for purposes of determining the tax treatment of subsequent distributions from   
the plan to the affected participant.   
     
(b)   Loans in excess of § 72(p)(2)(A   ). A failure of plan loan terms to satisfy § 72(p)(2)(A) may be   
corrected only under VCP or Audit CAP. The failure may be corrected by a corrective payment to   
the plan based on the excess of the loan amount over the maximum loan amount under § 72(p)(2)   
(A). In the event that loan repayments were made in accordance with the amortization schedule for   
the loan before correction, such prior repayments may be applied (i) solely to reduce the portion of   
the loan that did not exceed the maximum loan amount under § 72(p)(2)(A) (so that the corrective   
payment would equal the original loan excess plus interest thereon), (ii) to reduce the loan excess   
to the extent of the interest thereon, with the remainder of the repayments applied to reduce the   
portion of the loan that did not exceed the maximum loan amount under § 72(p)(2)(A) (so that the   
corrective payment would equal the original loan excess), or (iii) pro rata against the loan excess   
and the maximum loan amount under § 72(p)(2)(A) (so that the corrective payment would equal   
the outstanding balance remaining on the original loan excess on the date that the corrective pay-   
ment is made). After the corrective payment is made, the loan may be reformed to amortize the   
remaining principal balance as of the date of the corrective payment over the remaining period of   
the original loan. This is permissible as long as the recalculated repayments over the remaining   
loan period would not cause the loan to violate the maximum repayment term requirement under   
§ 72(p)(2)(B). The maximum repayment term is determined from the date the original loan was   
made. In addition, the amortized repayments determined for the remaining loan period must com-   
ply with the level amortization requirement of § 72(p)(2)(C).   
     
(c)   Plan loan terms that do not satisfy § 72(p)(2)(B) or (C). A failure of plan loan terms to satisfy   
the maximum repayment term requirement of § 72(p)(2)(B) or the level amortization requirement   
of § 72(p)(2)(C) may be corrected only under VCP or Audit CAP. The failure may be corrected by   
a reamortization of the loan balance in accordance with § 72(p)(2)(C) over the remainder of the   
maximum period that complies with § 72(p)(2)(B), as measured from the original date of the loan.   
     
(d)   Defaulted loans. A failure to repay a loan in accordance with loan terms that satisfy § 72(p)   
(2) may be corrected by (i) a single-sum corrective payment equal to the amount that the affected   
participant would have paid to the plan if there had been no failure to repay the plan, plus interest   
accrued on the missed payments, (ii) reamortizing the outstanding balance of the loan, including   
accrued interest, over the remaining payment schedule of the original term of the loan or the peri-   
od remaining had the loan been amortized over the maximum period that complies with § 72(p)(2)   
(B), as measured from the original date of the loan, or (iii) any combination of (i) or (ii).   
     
(e)   No requirement for plan provisions. This section 6.07 applies even if the plan does not require   
loans to satisfy the requirements of § 72(p)(2). However, under the Department of Labor's VFCP,   
to correct the ERISA fiduciary violations associated with the failures described in section 6.07(3)   
(b), (c), and (d), the plan must include plan provisions requiring that loans comply with § 72(p)   
(2)(A), (B), and (C).   
     
(4)   Failure to obtain spousal consent for a plan loan. (a)   Spousal consent obtained. The correction   
method for the failure to obtain spousal consent for a plan loan is that the Plan Sponsor must notify   
the affected participant and spouse (the spouse to whom the participant was married at the time of   
the plan loan), so that the spouse can provide spousal consent to the plan loan.   
     
(b)   No spousal consent obtained. If spousal consent is not obtained, as described in section 6.07(4)   
(a), the failure to obtain spousal consent for a plan loan must be corrected under either VCP or   
Audit CAP.   
     
(5)   Number of loans exceeds a loan limitation established by plan. An Operational Failure that   
results from a participant obtaining a number of loans that exceeds the number of loans permitted   
under the terms of the plan may be corrected by adopting a plan amendment in accordance with   
the correction method set forth in Appendix B, section 2.07(3)..08 Correction under statute or regulations. Generally, none of the correction programs is available   
to correct failures that can be corrected under the Code and related regulations. For example, as   
a general rule, a Plan Document Failure that is a disqualifying provision for which the remedial   
amendment period under § 401(b) has not expired can be corrected under provisions of the Code   
through retroactive remedial amendment..09 Matters subject to excise or other taxes. (1)   General rule. Except as provided in this revenue   
procedure, the correction programs are not available for events for which the Code provides tax   
consequences other than plan disqualification (such as the imposition of an excise tax or additional   
income tax). For example, funding deficiencies (failures to make the required contributions to a   
plan subject to § 412), prohibited transactions, and failure to file the Form 5500 series cannot be   
corrected under this revenue procedure.   
     
(2)   Section 4974. As part of VCP and Audit CAP, if a failure involves the failure to satisfy the min-   
imum required distribution requirements of § 401(a)(9), in appropriate cases, the IRS will waive   
the excise tax under § 4974 applicable to plan participants or beneficiaries. The waiver will be   
included in the compliance statement or in the closing agreement in the case of Audit CAP. Under   
VCP, the Plan Sponsor, as part of the submission, must request the waiver and, in cases where the   
participant subject to the excise tax is either an owner-employee as defined in § 401(c)(3) or a 10   
percent owner of a corporation, the Plan Sponsor must also provide an explanation supporting the   
request. Under Audit CAP, the Plan Sponsor must make a specific request for waiver of the excise   
tax under § 4974. The Plan Sponsor should also provide an explanation supporting the request for   
a waiver. Upon reviewing the request, the reasons for the failure, and other facts or circumstances   
of the case under examination, the IRS will determine whether it is appropriate to approve the   
waiver of the excise tax as part of the closing agreement negotiated under Audit CAP.   
     
(3)   Section 4972. As part of VCP, if the failure involves a correction that requires the Plan Sponsor   
to make a plan contribution that is not deductible, in appropriate cases, the IRS will not pursue   
the excise tax under § 4972 on such nondeductible contributions. The Plan Sponsor, as part of the   
submission must request the relief and provide an explanation supporting the request.   
     
(4)   Section 4979. As part of VCP, if a failure results in excess contributions as defined in § 4979(c)   
or excess aggregate contributions as defined in § 4979(d) under a plan, in appropriate cases, the   
IRS will not pursue the excise tax under § 4979, for example, where correction is made for any   
case in which the ADP test was timely performed but, due to reliance on inaccurate data, resulted   
in an insufficient amount of excess elective deferrals having been distributed to HCEs. The Plan   
Sponsor, as part of the submission, must request the relief and provide an explanation supporting   
the request.   
     
(5)   Section 4973. Subject to section 6.03(4), as part of VCP, in appropriate cases, the IRS will not   
pursue the excise tax under § 4973 relating to excess contributions made to a § 403(b) Plan or IRA   
under any of the following circumstances:   
     
(a) As part of the proposed correction for Overpayments, the Overpayment recipient removes the   
Overpayment (adjusted for Earnings) from the Overpayment recipient's § 403(b) Plan or IRA and   
returns that amount to the plan.   
     
(b) As part of the proposed correction for Excess Amounts, the recipient removes the Excess   
Amount (adjusted for Earnings) from the recipient's § 403(b) Plan or IRA and reports that amount   
(reduced by any applicable after-tax employee contribution) as a taxable distribution for the year   
in which the Excess Amount (adjusted for Earnings) is removed from the recipient's § 403(b)   
Plan or IRA. The amount removed is generally taxed in a manner that is similar to the manner in   
which the corrective disbursement of elective deferrals is taxed, as described in section 3 of Rev.   
Proc. 92-93.   
     
(c) The Plan Sponsor, as part of the submission, must request relief from the § 4973 excise tax and   
provide an explanation supporting the request.   
     
(6)   Section 72(t). As part of VCP, in appropriate cases, the IRS will not pursue the 10 percent ad-   
ditional income tax under § 72(t) (or will pursue only a portion thereof) if, as part of the proposed   
correction of an Overpayment that occurred solely because an employee received a distribution   
from his or her vested account balance that was not a distributable event, the participant or bene-   
ficiary ("recipient") returns the improperly distributed amount, adjusted for Earnings, to the plan   
If the improperly distributed amount was rolled over to the recipient's IRA, then correction will   
include removing the amount improperly distributed and rolled over (adjusted for Earnings) from   
the recipient's IRA and returning that amount to the plan. In appropriate cases, as a condition for   
not pursuing all or a portion of the additional tax, the IRS may require the Plan Sponsor to pay a   
sanction not in excess of the 10 percent additional income tax under § 72(t). The Plan Sponsor, as   
part of the submission, must request the relief and provide an explanation supporting the request..10 Correction for § 403(b) Plans. (1)   Correction for § 403(b) Plans generally. Except as provided   
in sections 6.03(2) and 6.10(2), the correction for a § 403(b) Plan is expected to be the same as the   
correction required for a Qualified Plan with the same Failure (that is, a Plan Document Failure,   
Operational Failure, Demographic Failure, or Employer Eligibility Failure).   
     
(2)   Special correction principles. In general, a § 403(b) Failure can be corrected by treating a   
contract as a § 403(c) annuity contract (or, if applicable, as an amount to which § 61, 83, or 402(b)   
applies), such as for purposes of correcting an Employer Eligibility Failure, a failure to provide for   
full vesting (including a failure to maintain a separate account), or an exchange made to a vendor   
which is not part of the plan (and for which there is no information sharing agreement). In addi-   
tion, for purposes of this revenue procedure, a § 403(b) Plan will be treated as having a Favorable   
Letter if either (a) the employer is an eligible employer and, on or before December 31, 2009 (or   
the date a § 403(b) Plan is established, if later), the employer has adopted a written § 403(b) Plan   
that is intended to satisfy § 403(b) (including the regulations thereunder) effective as of January   
1, 2009 (or the first day of the plan year in which a § 403(b) Plan is established, if later), or (b) the   
employer has failed to adopt a written § 403(b) Plan timely and corrects the failure in accordance   
with section 6.10(3) below. In addition, for purposes of section 4.04 (requiring that the Plan Spon-   
sor or administrator of the plan have established practices and procedures reasonably designed   
to promote and facilitate overall compliance with applicable Code requirements in order to be   
eligible for SCP to be available to correct Operational Failures and Plan Document Failures), the   
requirement to have established practices and procedures only applies for failures during periods   
after December 31, 2009.   
     
(3)   Correction for failure to adopt a written § 403(b) Plan timely. A failure to adopt a written   
§403(b) Plan timely in accordance with the final regulations under § 403(b) and Notice2009-3   
may be corrected under VCP or Audit CAP. The issuance of a compliance statement or closing   
agreement for the failure to adopt a written § 403(b) Plan timely will result in the written § 403(b)   
Plan being treated as if it had been adopted timely for the purpose of making available the extend-   
ed remedial amendment period set forth in Rev. Proc. 2017-18, 2017-5 I.R.B. 743, as modified by   
Notice 2020-35, 2020-25 I.R.B. 948. However, the issuance of a compliance statement or closing   
agreement does not constitute a determination as to whether the written plan, as drafted, complies   
with the applicable requirements of § 403(b) of the Code and the final § 403(b) regulations..11 Correction for SEPs and SIMPLE IRA Plans. (1)   Correction for SEPs and SIMPLE IRA Plans    
 generally. Generally, the correction for a SEP or a SIMPLE IRA Plan is expected to be similar   
to the correction required for a Qualified Plan with a similar Qualification Failure (that is, a Plan   
Document Failure, Operational Failure, Demographic Failure, or Employer Eligibility Failure).   
     
(2)   Special correction for SEPs and SIMPLE IRA Plans. In any case in which correction under   
section 6.11(1) is not feasible for a SEP or SIMPLE IRA Plan or in any other case determined by   
the IRS in its discretion (including failures relating to § 402(g), 415, or 401(a)(17), failures relat-   
ing to deferral percentages, discontinuance of contributions to a SARSEP or SIMPLE IRA Plan,   
and retention of Excess Amounts for cases in which there has been no violation of a statutory lim-   
itation with respect to a SEP or SIMPLE IRA Plan), the IRS may provide for a different correction.   
     
(3)   Correction of failure to satisfy deferral percentage test. If the failure involves a violation of   
the deferral percentage test under § 408(k)(6)(A)(iii) applicable to a SARSEP, the failure may be   
corrected in either of the following ways:   
     
(a) The Plan Sponsor may make contributions that are 100 percent vested to all eligible nonhighly   
compensated employees (to the extent permitted by § 415) necessary to raise the deferral percent-   
age to an amount sufficient to pass the test. This amount may be calculated as the same percentage   
of compensation (regardless of the terms of the SEP); or   
     
(b) The Plan Sponsor may effect distribution of excess contributions, adjusted for Earnings through   
the date of correction, to highly compensated employees to correct the failure. The Plan Sponsor   
must also contribute to the SEP an amount equal to the total amount distributed. This amount must   
be allocated to (i) current employees who were nonhighly compensated employees in the year of   
the failure, (ii) current nonhighly compensated employees who were nonhighly compensated em-   
ployees in the year of the failure, or (iii) employees (both current and former) who were nonhighly   
compensated employees in the year of the failure.   
     
(4)   Treatment of under contributions to a SEP or a SIMPLE IRA Plan. (a)   Make-up contributions;    
 Earnings. The Plan Sponsor should correct under contributions to a SEP or a SIMPLE IRA Plan   
by contributing make-up amounts that are fully vested, adjusted for Earnings from the date of the   
failure to the date of correction.   
     
(b)   Earnings adjustment methods. Insofar as SEP and SIMPLE IRA Plan assets are held in IRAs,   
there is no earnings rate under the SEP or SIMPLE IRA Plan as a whole. If it is not feasible to   
make a reasonable estimate of what the actual investment results would have been, a reasonable   
interest rate may be used.   
     
(5)   Treatment of Excess Amounts under a SEP or a SIMPLE IRA Plan. (a)   Distribution of Excess    
 Amounts. For purposes of this section 6.11, an Excess Amount is an amount contributed on behalf   
of an employee that is in excess of an employee's benefit under the plan, or an elective deferral   
in excess of the limitations of § 402(g) or 408(k)(6)(A)(iii). If an Excess Amount is attributable   
to elective deferrals, the Plan Sponsor may effect distribution of the Excess Amount, adjusted for   
Earnings through the date of correction, to the affected participant. The amount distributed to the   
affected participant is includible in gross income in the year of distribution. The distribution is   
reported on Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing   
Plans, IRAs, Insurance Contracts, etc. for the year of distribution with respect to each participant   
receiving the distribution. In addition, the Plan Sponsor must inform affected participants that the   
distribution of an Excess Amount is not eligible for favorable tax treatment accorded to distribu-   
tions from a SEP or a SIMPLE IRA Plan (and, specifically, is not eligible for tax-free rollover). If   
the Excess Amount is attributable to employer contributions, the Plan Sponsor may effect distri-   
bution of the employer Excess Amount, adjusted for Earnings through the date of correction, to   
the Plan Sponsor. The amount distributed to the Plan Sponsor is not includible in the gross income   
of the affected participant. The Plan Sponsor is not entitled to a deduction for such employer Ex-   
cess Amount. The distribution is reported on Form 1099-R issued to the participant indicating the   
taxable amount as zero.   
     
(b)   Retention of Excess Amounts. If the failure involves an Excess Amount under a SEP or a SIM-   
PLE IRA Plan and the Plan Sponsor retains the Excess Amount in the SEP or SIMPLE IRA Plan,   
a sanction applies, in addition to the SEP or SIMPLE IRA Plan user fee described in Appendix   
A of Rev. Proc. 2021-4 (and its annual successors). A sanction equal to at least 10 percent of the   
Excess Amount with no adjustment for Earnings is imposed. In addition, the Plan Sponsor is not   
entitled to a deduction for an Excess Amount retained in the SEP or SIMPLE IRA Plan. In the case   
of an Excess Amount retained in a SEP that is attributable to a § 415 failure, the Excess Amount,   
adjusted for Earnings through the date of correction, must reduce an affected participant's appli-   
cable § 415 limit for the year following the year of correction (or for the year of correction if the   
Plan Sponsor so chooses), and subsequent years, until the excess is eliminated.   
     
(c)   De minimis Excess Amounts. If the total Excess Amount in a SEP or SIMPLE IRA Plan, wheth-   
er attributable to elective deferrals or employer contributions, is $250 or less, the Plan Sponsor   
is not required to distribute the Excess Amount and the sanction described in section 6.11(5)(b)   
does not apply..12 Confidentiality and disclosure. Because each correction program relates directly to the en-   
forcement of Code requirements, the information received or generated by the IRS under the   
program is subject to the confidentiality requirements of § 6103 and is not a written determination   
within the meaning of § 6110..13 No effect on other law. Correction under these programs has no effect on the rights or obliga-   
tions of any party under any other law, including the rights of any persons and the obligations of   
fiduciaries or employers under Title I of ERISA. The Department of Labor maintains the VFCP,   
under which certain ERISA fiduciary violations may be corrected. The Department of Labor also   
maintains a Delinquent Filer Voluntary Compliance Program under which certain failures to com-   
ply with the annual reporting requirements (Form 5500 series) under ERISA may be corrected.   
     
PART IV.   
SELF-CORRECTION (SCP)   
     
SECTION 7. AVAILABILITY OF SCP FOR CERTAIN OPERATIONAL FAILURES AND PLAN DOCUMENT FAILURES.01 In general. (1)   Operational Failures. The requirements of this section 7 are satisfied with   
respect to an Operational Failure if the Plan Sponsor of a Qualified Plan, a § 403(b) Plan, a SEP,   
or a SIMPLE IRA Plan satisfies the requirements of section 7.02, and either section 8 (relating to   
insignificant Operational Failures), or, in the case of a Qualified Plan or a § 403(b) Plan, section 9   
(relating to significant Operational Failures).   
     
(2)   Plan Document Failures. The requirements of this section 7 are satisfied with respect to an   
eligible Plan Document Failure if the Plan Sponsor of a Qualified Plan or a § 403(b) Plan satisfies   
the requirements of section 7.03 and section 9..02 Operational Failures. (1)   In general. Operational Failures may be corrected under SCP in     
accordance with the correction principles and rules of general applicability set forth in section 6.     
     
(2)   Corrective amendments for Operational Failures. Operational Failures may be corrected un-   
der SCP by adoption of a plan amendment that conforms the terms of the plan to the plan's prior   
operations, provided the requirements of section 4.05(2) are satisfied.   
     
(3)   Plan loan failures. The following plan loan failures may be corrected under SCP: defaulted   
loans (described in section 6.07(3)(d)); the failure to obtain spousal consent (described in section   
6.07(4)(a)); and the failure to abide by a limitation on the number of plan loans permitted per par-   
ticipant as set forth under the terms of the plan (described in section 6.07(5))..03 Plan Document Failures. An eligible Plan Document Failure, as described in section 4.01(1)   
(b), may be corrected under SCP provided that the requirements described in section 4.05(2)(c)(i)   
(Favorable Letter requirement) and 4.05(2)(c)(ii) (treating Plan Document Failures under SCP as   
significant failures) are satisfied.   
     
SECTION 8. SELF-CORRECTION OF INSIGNIFICANT OPERATIONAL FAILURES.01 Requirements. The requirements of this section 8 are satisfied with respect to an Operational   
Failure if the Plan Sponsor of a Qualified Plan, a § 403(b) Plan, a SEP, or a SIMPLE IRA Plan   
corrects the Operational Failure and, given all the facts and circumstances, the Operational Failure   
is insignificant. This section 8 is available for correcting an insignificant Operational Failure even   
if the plan or Plan Sponsor is Under Examination and even if the Operational Failure is discovered   
on examination..02 Factors. The factors to be considered in determining whether an Operational Failure under a   
plan is insignificant include, but are not limited to: (1) whether other failures occurred during the   
period being examined (for this purpose, a failure is not considered to have occurred more than   
once merely because more than one participant is affected by the failure); (2) the percentage of   
plan assets and contributions involved in the failure; (3) the number of years the failure occurred;   
(4) the number of participants affected relative to the total number of participants in the plan; (5)   
the number of participants affected as a result of the failure relative to the number of participants   
who could have been affected by the failure; (6) whether correction was made within a reasonable   
time after discovery of the failure; and (7) the reason for the failure (for example, data errors such   
as errors in the transcription of data, the transposition of numbers, or minor arithmetic errors). No   
single factor is determinative. Additionally, factors (2), (4), and (5) should not be interpreted to   
exclude small businesses..03 Multiple failures. In the case of a plan with more than one Operational Failure in a single year,   
or Operational Failures that occur in more than one year, the Operational Failures are eligible   
for correction under this section 8 only if all of the Operational Failures are insignificant in the   
aggregate. Operational Failures that have been corrected under SCP in section 9 and VCP in sec-   
tions 10 and 11 are not taken into account for purposes of determining if Operational Failures are   
insignificant in the aggregate..04 Examples. (1)   In general. The following examples illustrate the application of this section   
8. The IRS plans to provide additional examples illustrating whether an Operational Failure is   
insignificant. The additional examples will be provided on the IRS.gov website. It is expected   
that a link to these examples will appear on the "Correcting Plan Errors" webpage on the IRS.gov   
website.   
     
(2)   Assumptions for examples in section 4.04. It is assumed, in each example, that the eligibility   
requirements of section 4 relating to SCP (for example, the requirements of section 4.04 relating   
to established practices and procedures) have been satisfied and no Operational Failures oc-   
curred other than the Operational Failures   
     
Example 1: In 1991, Employer X established Plan A, a profit-sharing plan that satisfies the requirements of § 401(a) in   
form. In 2005, the benefits of 50 of the 250 participants in Plan A were limited by § 415(c). However, when the IRS exam-   
ined Plan A in 2008, it discovered that, during the 2005 limitation year, the annual additions allocated to the accounts of 3   
of these employees exceeded the maximum limitations under § 415(c). Employer X contributed $3,500,000 to the plan for   
the plan year. The amount of the excesses totaled $4,550. Under these facts, because the number of participants affected   
by the failure relative to the total number of participants who could have been affected by the failure, and the monetary   
amount of the failure relative to the total employer contribution to the plan for the 2005 plan year, are insignificant, the   
§ 415(c) failure in Plan A that occurred in 2005 would be eligible for correction under this section 8.   
     
Example 2: The facts are the same as in Example 1, except that the failure to satisfy § 415 occurred during each of the   
2005 and 2007 limitation years. In addition, the three participants affected by the § 415 failure were not identical each year.   
The fact that the § 415 failures occurred during more than one limitation year does not cause the failures to be significant,   
accordingly, the failures are still eligible for correction under this section 8.   
     
Example 3: The facts are the same as in Example 1, except that the annual additions of 18 of the 50 employees whose ben-   
efits were limited by § 415(c) nevertheless exceeded the maximum limitations under § 415(c) during the 2005 limitation   
year, and the amount of the excesses ranged from $1,000 to $9,000, and totaled $150,000. Under these facts, taking into   
account the number of participants affected by the failure relative to the total number of participants who could have been   
affected by the failure for the 2005 limitation year (and the monetary amount of the failure relative to the total employer   
contribution), the failure is significant. Accordingly, the § 415(c) failure in Plan A that occurred in 2005 is ineligible for   
correction under this section 8 as an insignificant failure.   
     
Example 4: Employer J maintains Plan C, a money purchase pension plan established in 1992. The plan document sat-   
isfies the requirements of § 401(a). The formula under the plan provides for an employer contribution equal to 10% of   
compensation, as defined in the plan. During its examination of the plan for the 2005 plan year, the IRS discovered that   
the employee responsible for entering data into the employer's computer made minor arithmetic errors in transcribing the   
compensation data with respect to 6 of the plan's 40 participants, resulting in excess allocations to those 6 participants'   
accounts. Under these facts, the number of participants affected by the failure relative to the number of participants that   
could have been affected is insignificant, and the failure is due to minor data errors. Thus, the failure occurring in 2005 is   
insignificant and therefore eligible for correction under this section 8.   
     
Example 5: Public School maintains for its 200 employees a salary reduction § 403(b) Plan ("Plan B") that is intended   
to satisfy the requirements of § 403(b). The business manager has primary responsibility for administering Plan B, in   
addition to other administrative functions within Public School. During the 2005 plan year, a former employee should   
have received an additional minimum required distribution of $278 under § 403(b)(10). Another participant received an   
impermissible hardship withdrawal of $2,500. Another participant made elective deferrals of which $1,000 was in excess   
of the § 402(g) limit. Under these facts, even though multiple failures occurred in a single plan year, the failures are eligible   
for correction under this section 8 because in the aggregate the failures are insignificant.   
     
SECTION 9. SELF-CORRECTION OF CERTAIN SIGNIFICANT OPERATIONAL FAILURES AND   
PLAN DOCUMENT FAILURES.01 Requirements. The requirements of this section 9 are satisfied with respect to a significant   
Operational Failure or a Plan Document Failure if the Plan Sponsor of a Qualified Plan or § 403(b)   
Plan corrects the failure, and the correction is either completed or, in the case of an Operational   
Failure, is substantially completed (in accordance with section 9.03) by the last day of the correc-   
tion period described in section 9.02..02 Correction period. (1)   End of correction period. The last day of the correction period is the last   
day of the third plan year following the plan year for which the failure occurred. However, in the   
case of a failure to satisfy the requirements of § 401(k)(3) or 401(m)(2), the correction period does   
not end until the last day of the third plan year following the plan year that includes the last day of   
the additional period for correction permitted under § 401(k)(8) or 401(m)(6). If a § 403(b) Plan   
does not have a designated plan year, the plan year is deemed to be the calendar year for purposes   
of this section 9.02.   
     
(2)   Extension of correction period for Transferred Assets. In the case of an Operational Failure or   
Plan Document Failure that relates only to Transferred Assets, or to a plan assumed in connection   
with a corporate merger, acquisition, or other similar employer transaction, the correction period   
will not end before the last day of the first plan year that begins after the corporate merger, ac-   
quisition, or other similar employer transaction between the Plan Sponsor and the sponsor of the   
transferor plan or the prior sponsor of an assumed plan.   
     
(3)   Effect of examination. The correction period for an Operational Failure or Plan Document   
Failure that occurs for any plan year ends, in any event, on the first date the plan or Plan Sponsor   
is Under Examination for that plan year (determined without regard to the second sentence of   
section 9.02). (But see section 9.03 for special rules permitting completion of correction of an   
Operational Failure after the end of the correction period.).03 Substantial completion of correction. Correction of an Operational Failure is substantially   
completed by the last day of the correction period only if the requirements of either paragraph (1)   
or (2) of this section 9.03 are satisfied.   
     
(1) The requirements of this paragraph (1) are satisfied if:   
     
(a) during the correction period, the Plan Sponsor is reasonably prompt in identifying the Opera-   
tional Failure, formulating a correction method, and initiating correction in a manner that demon-   
strates a commitment to completing correction of the failure as expeditiously as practicable; and   
     
(b) within 120 days after the last day of the correction period, the Plan Sponsor completes correc-   
tion of the failure.   
     
(2) The requirements of this paragraph (2) are satisfied if:   
     
(a) during the correction period, correction is completed with respect to 65 percent of all partici-   
pants affected by the Operational Failure; and   
     
(b) thereafter, the Plan Sponsor completes correction of the Operational Failure with respect to the   
remaining affected participants in a diligent manner..04 Examples. The following examples illustrate the application of this section 9. It is assumed, in   
each example, that the eligibility requirements of section 4 relating to SCP have been met.   
     
Example 1: Employer Z established a qualified defined contribution plan in 2017 and received a favorable determination   
letter. During 2021, while doing a self-audit of the operation of the plan for the 2020 plan year, the plan administrator dis-   
covered that, despite the practices and procedures established by Employer Z with respect to the plan, several employees   
eligible to participate in the plan were excluded from participation. The administrator also found that for 2020 Operational   
Failures occurred because the elective deferrals of additional employees exceeded the § 402(g) limit and Employer Z failed   
to make the required top-heavy minimum contribution. In addition, during the review of the administration for the 2020   
year, it was found that the plan administrator intended to implement correction for the failure to satisfy the ADP test (as   
described in § 401(k)(3)) for the 2019 plan year. During the 2023 plan year, the Plan Sponsor made QNECs on behalf of   
the excluded employees, distributed the excess deferrals to the affected participants, and made a top-heavy minimum con-   
tribution to all participants entitled to that contribution for the 2020 plan year. Each corrective contribution and distribution   
was credited with Earnings at a rate appropriate for the plan from the date the corrective contribution or distribution should   
have been made to the date of correction. The failed ADP test for 2019 was corrected by making corrective contributions,   
adjusted for Earnings, on behalf of nonhighly compensated employees using the method described in Appendix A, section.03. Under these facts, the Plan Sponsor has corrected the ADP test failure for the 2019 plan year and the Operational Fail-   
ures for the 2020 plan year within the correction period and thus satisfied the requirements of this section 9.   
     
Example 2: Employer A established a qualified defined contribution plan, Plan A, in 2007 and has received a favorable   
determination letter for the applicable law changes. In April 2021, Employer A purchased all of the stock of Employer B,   
a wholly-owned subsidiary of Employer C. Employees of Employer B participated in Plan C, a qualified defined contri -   
bution plan sponsored by Employer C. Following Employer A's review of Plan C, Employer A and Employer C agreed   
that Plan A would accept a transfer of plan assets from Plan C attributable to the account balances of the employees of   
Employer B who had participated in Plan C. As part of this agreement, Employer C represented to Employer A that Plan C   
was tax qualified. Employers A and C also agreed that such transfer would be in accordance with § 414(l) and § 1.414(1)-1   
and addressed issues related to costs associated with the transfer. Following the transaction, the employees of Employer   
B began participation in Plan A. Effective July 1, 2021, Plan A accepted the transfer of plan assets from Plan C. After the   
transfer, Employer A determined that all the participants in one division of Employer B had been incorrectly excluded from   
allocation of the profit-sharing contributions for the 2016 and 2017 plan years. During 2022, Employer A made corrective   
contributions on behalf of the affected participants. The corrective contributions were credited with Earnings at a rate   
appropriate for the plan from the date the corrective contributions should have been made to the date of correction and   
Employer A otherwise complied with the requirements of SCP. Under these facts, Employer A has, within the correction   
period, corrected the Operational Failures for the 2016 and 2017 plan years with respect to the assets transferred to Plan   
A, and thus satisfied the requirements of this section 9.   
     
PART V.   
VOLUNTARY CORRECTION PROGRAM WITH IRS APPROVAL (VCP)   
     
SECTION 10. VCP PROCEDURES.01 VCP pre-submission conference. (1) Effective January 1, 2022, prior to submitting a VCP   
application, a representative of a Plan Sponsor may request an anonymous VCP pre-submission   
conference regarding corrective actions with respect to any failure that is eligible to be submitted   
under VCP. A VCP pre-submission conference may be requested only (1) for matters on which a   
compliance statement may be issued under this revenue procedure, (2) with respect to requested   
correction methods that are not described as safe harbor correction methods in Appendix A or   
B, and (3) if the Plan Sponsor is eligible and intends to submit an application under VCP. VCP   
pre-submission conferences are held only at the discretion of the IRS, and as time permits.   
     
(2) The Plan Sponsor's representative must submit the VCP pre-submission conference request   
via the Pay.gov website by submitting a Form 8950, Application for Voluntary Correction Pro-   
gram (VCP) Submission Under the Employee Plans Compliance Resolution System. The request   
should also include (1) a description of the failure(s), including how and why the failure(s) oc-   
curred; (2) a description of the proposed method(s) of correction; (3) a description of all relevant   
facts, including the type of affected participants (for example, highly compensated employees or   
nonhighly compensated employees); (4) plan provisions and amendments that are relevant to the   
request; and (5) any other information the IRS would need to evaluate the request. It is anticipat-   
ed that the published IRS instructions associated with the Form 8950 will be modified in order   
to provide specificity on the information that needs to be included with the VCP pre-submission   
conference request.   
     
(3) At the conference, the IRS will provide the representative of the Plan Sponsor with oral feed-   
back regarding the failure(s) and proposed correction method(s) described in the request. Any   
discussion of substantive issues at the conference, however, is advisory only, is not binding on the   
IRS, and cannot be relied upon as a basis for obtaining relief under EPCRS or retroactive relief   
under the provisions of § 7805(b). After the of  conference, the IRS will provide a written confirma-   
tion that the conference took place, and the matter will be closed. If the Plan Sponsor subsequently   
files a VCP submission regarding the issues discussed, the Plan Sponsor must follow the proce-   
dures set forth in this section 10 and section 11 (which require submission of a new Form 8950   
and payment of an applicable user fee)..02 VCP requirements. The requirements of VCP are satisfied with respect to a failure if, on the   
Pay.gov website, the Plan Sponsor files a VCP submission and pays the applicable user fee set   
forth in Appendix A of Rev. Proc. 2021-4 (and its annual successors), in accordance with the re-   
quirements of this section 10 and section 11, and implements the corrective actions and satisfies   
any other conditions set forth in the compliance statement described in section 10.08. As provided   
in section 11.09, a Plan Sponsor may designate an authorized representative to file a VCP submis-   
sion with the IRS on its behalf, if specific requirements are satisfied..03 Identification of failures. VCP is not based upon an examination of the plan by the IRS   
Only the failures raised by the Plan Sponsor or failures identified by the IRS in processing the   
submission are addressed under VCP, and only those failures are covered by a VCP compliance   
statement. The IRS will not make any investigation or finding under VCP concerning whether   
there are other failures..04 Effect of VCP submission on examination. Because VCP does not arise out of an examination,   
consideration under VCP does not preclude or impede (under § 7605(b) or any administrative   
provisions adopted by the IRS) a subsequent examination of the Plan Sponsor or the plan by the   
IRS with respect to the taxable year (or years) involved with respect to matters that are outside the   
compliance statement. However, a Plan Sponsor's statements describing failures are made only   
for purposes of VCP and will not be regarded by the IRS as an admission of a failure for purposes   
of any subsequent examination. See section 5.08 for the definition of Under Examination..05 No concurrent examination activity. Except in unusual circumstances, a plan that has been   
properly submitted under VCP will not be examined while the submission is pending. However,   
a plan that is included in a group submission under section 10.11 may be examined while the   
group submission is pending with respect to issues not identified in the group submission at the   
time such plan comes Under Examination. Also, if it is determined that either the plan or the Plan   
Sponsor was, or may have been, a party to an abusive tax avoidance transaction (as defined in   
section 4.12(2)), the IRS may authorize the examination of the plan, even if a submission pursuant   
to VCP is pending. In addition, this practice regarding concurrent examinations does not extend   
to other plans of the Plan Sponsor. Thus, any plan of the Plan Sponsor that is not pending under   
VCP could be subject to examination..06 Determination letter applications not related to a VCP submission. (1) The IRS may process a   
determination letter application (including an application requested on Form 5310) submitted un-   
der the determination letter program (as set forth in Rev. Proc. 2021-4 (and its annual successors)   
and Rev. Proc. 2016-37, as modified, and any subsequent guidance issued in the Internal Revenue   
Bulletin) while separately processing a VCP submission for the same plan. Generally, issuance   
of the determination letter in response to an application made on a Form 5310 will be suspended   
pending the closure of the VCP submission.   
     
(2) A submission of a plan under the determination letter program does not constitute a submission   
under VCP. If the Plan Sponsor discovers a failure, the failure may not be corrected as part of the   
determination letter process. The Plan Sponsor may use SCP and VCP instead, as applicable. If   
the IRS, in connection with a determination letter application, discovers failures, the IRS may   
issue a closing agreement with respect to the failures identified or, if applicable, refer the case to   
Employee Plans Examinations. In such a case, the VCP user fee does not apply. Instead, except   
as provided in section 10.06(3), the sanction in section 14.01 relating to Audit CAP applies. See   
section 5.08 for a description of when a plan submitted for a determination letter is considered to   
be Under Examination for purposes of EPCRS.   
     
(3) If the IRS in connection with a determination letter application discovers the plan has not been   
amended timely for tax legislation changes, the fee structure in section 14.04 applies..07 Processing of submission.   
     
(1)   Screening of submission. Upon receipt of a VCP submission, the IRS will review the submis-   
sion to determine whether the eligibility requirements of section 4 and the submission require-   
ments of section 11 are satisfied.   
     
(2)   Eligibility of submission. If, at any stage of the review process, the IRS determines that a VCP   
submission is seriously deficient or that issuing a compliance statement with respect to the VCP   
submission would be inappropriate or impracticable, the IRS reserves the right to not issue a com-   
pliance statement. If no substantive processing of the case has occurred, the IRS will refund the   
user fee submitted with the request. Otherwise, the user fee will not be refunded.   
     
(3)   Review of submission. Once the IRS determines that the submission is complete under VCP,   
the IRS may contact the Plan Sponsor or the Plan Sponsor's authorized representative to discuss   
the proposed corrections and the plan's administrative procedures. However, if the IRS determines   
that the submission is complete and sets forth an acceptable correction method, the IRS may issue   
a compliance statement without contacting the Plan Sponsor or the Plan Sponsor's authorized   
representative.   
     
(4)   Additional information required. If additional information is required, an IRS representative   
generally will contact the Plan Sponsor or the Plan Sponsor's authorized representative and ex-   
plain what is needed to complete the submission. The Plan Sponsor will have 21 calendar days   
from the date of this contact to provide the requested information. If the information is not re-   
ceived within 21 days, the matter will be closed, the user fee will not be returned, and the case   
may be referred to Employee Plans Examinations. Any request for an extension of the 21-day   
period must be made in writing within the 21-day period and must be approved by the IRS (by the   
applicable group manager).   
     
(5)   Additional failures discovered after initial submission. (a) A Plan Sponsor that discovers ad-   
ditional unrelated failures after its initial submission may request that such failures be added to   
its submission. However, the IRS retains the discretion to reject the inclusion of such failures if   
the request is not timely (for example, if the Plan Sponsor makes its request when processing of   
the submission is substantially complete) or the application of VCP would be inappropriate or   
impracticable.   
     
(b) If the IRS discovers an unrelated failure while the request is pending, the failure generally will   
be added to the failures under consideration. However, the IRS retains the discretion to determine   
that a failure is outside the scope of the voluntary request for consideration because the Plan Spon-   
sor did not voluntarily bring this failure forward. In this case, if the additional failure is significant   
all aspects of the plan may be examined, and the rules pertaining to Audit CAP will apply.   
     
(6)   Conference right. If the IRS initially determines that it cannot issue a compliance statement   
because the parties cannot agree upon correction or a change in administrative procedures, the   
Plan Sponsor (generally through the Plan Sponsor's authorized representative) will be contacted   
by the IRS representative and offered a conference with the IRS. The conference can be held   
either in person or by telephone and must be held within 21 calendar days of the date of contact.   
The Plan Sponsor will have 21 calendar days after the date of the conference to submit additional   
information in support of the submission. Any request for an extension of the 21-day period must   
be made in writing within the 21-day period and must be approved by the IRS (by the applicable   
group manager). Additional conferences may be held at the discretion of the IRS.   
     
(7)   Failure to reach resolution. If the IRS and the Plan Sponsor cannot reach agreement with   
respect to the submission, the matter will be closed, the user fee will not be returned, and the case   
may be referred to Employee Plans Examinations.   
     
(8)   Issuance of compliance statement. (a)   In general. If agreement has been reached and all ap-   
plicable user fees have been paid, the IRS will send to the Plan Sponsor a compliance statement   
signed by the IRS specifying the corrective action required. However, the IRS reserves the right   
to require the Plan Sponsor to sign the compliance statement. In such a case, the IRS will send   
to the Plan Sponsor an unsigned compliance statement. Within 30 calendar days of the date the   
compliance statement is sent, the Plan Sponsor must sign and return the compliance statement and   
pay any outstanding user fee that may be required (see sections 4.08 and 11.06). The IRS will then   
issue a signed copy of the compliance statement to the Plan Sponsor. If the Plan Sponsor does not   
return the compliance statement (and pay any outstanding user fee) within 30 calendar days, the   
VCP submission will be closed, and no further action will be taken with respect to the submission.   
In appropriate circumstances, the plan may be referred to Employee Plans Examinations.   
     
(b)   Model VCP Compliance Statement. If the Plan Sponsor included a completed Form 14568,   
Model VCP Compliance Statement with its VCP submission, then the IRS will sign and send to   
the Plan Sponsor the compliance statement specifying the corrective action required. The format   
and content of the Form 14568 as set forth by the IRS may not be modified or changed in any way.   
In appropriate circumstances, the IRS reserves the right to issue an individually drafted compli-   
ance statement in lieu of the Form 14568. See section 11.02.   
     
(c)   Modifications to VCP Submission. If a Plan Sponsor materially modifies a VCP submission   
that was previously filed with the IRS, the Plan Sponsor should include the penalty of perjury   
statement set forth in section 11.04(16) with respect to such subsequent modifications. If the Plan   
Sponsor does not submit a penalty of perjury statement, the Plan Sponsor will be required to sign   
and return the compliance statement under the general procedures described in section 10.07(8)   
(a). See section 11.03(8) for information concerning submission of any such modification prior to   
the assignment of the case to an IRS representative.   
     
(9)   Timing of correction. (a)   In general. The Plan Sponsor must implement the specific corrections   
and administrative changes set forth in the compliance statement within 150 days of the date of   
the compliance statement. Any request for an extension of this correction period must be made in   
writing prior to the expiration of the correction period and must be approved by the IRS.   
     
(b)   Interim Amendments and Nonamender Failures. Correction of the failure to timely adopt In-   
terim Amendments or other required amendments, as described in section 5.01(2)(a)(ii)(B) and   
(C), must be made by the date of the submission. Thus, the submission must include the executed   
amendments that would correct this failure.   
     
(c)   Other plan amendments. If a corrective plan amendment is required as part of a VCP submis-   
sion, the corrective plan amendment must be adopted no later than 150 days after the date of the   
compliance statement. However, for a governmental plan (within the meaning of § 414(d)), the   
corrective amendment must be adopted by the later of 150 days after the date of the compliance   
statement or the close of the first regular legislative section of the legislative body with the author-   
ity to amend the plan that begins on or after 91 days after the date of the compliance statement.   
     
(10)   Modification of compliance statement. Once the compliance statement has been issued (based       
on the information provided), the Plan Sponsor cannot request a modification of the compliance   
terms except by a new request for a compliance statement, accompanied by a new user fee, sub-   
mitted in accordance with the submission procedures set forth in section 11.   
     
(11)   Verification. Once the compliance statement has been issued, the IRS may require verifi   
cation that the plan has complied with the correction methods and that any plan administrative   
procedures required by the compliance statement have been implemented. This verification does   
not constitute an examination of the books and records of the employer or the plan (within the   
meaning of § 7605(b)). If the IRS determines that the Plan Sponsor did not implement the correc-   
tions and procedures within the stated time period, the plan may be referred to Employee Plans   
Examinations..08 Compliance statement. (1)   General description of compliance statement. The compliance   
statement issued for a VCP submission only addresses the failures identified in the submission,   
the terms of correction (including any revision of administrative procedures), and the time period   
within which proposed corrections must be implemented (including any changes in administra-   
tive procedures). The compliance statement also provides that the IRS will not treat the plan as   
failing to satisfy the applicable requirements of the Code on account of the failures described in   
the compliance statement if the conditions of the compliance statement are satisfied. The reliance   
provided by a compliance statement is limited to the specific failures and years specified and does   
not provide reliance for any other failure or year.   
     
(2)       Correction through plan amendment. (a)   Interim Amendment Failures. With respect to a fail-   
ure to amend a plan timely for Interim Amendments, as described in section 5.01(2)(a)(ii)(B),   
the issuance of a compliance statement will result in the corrective amendments being treated as   
if they had been adopted timely for the purpose of determining the availability of the remedial   
amendment period in Rev. Proc. 2007-44 and Rev. Proc. 2016-37, as modified. However the issu-   
ance of such a compliance statement does not constitute a determination as to whether the Interim   
Amendment, as drafted, complies with the change in qualification requirement, or whether the   
terms of the plan, including the corrective plan amendment, satisfy the qualification requirements   
in form.   
     
(b)   Nonamender Failures. With respect to a failure to amend a plan timely for disqualifying pro-   
visions or a failure to timely adopt applicable required amendments provided on the Required   
Amendments List, as described in section 5.01(2)(a)(ii)(C) (the definition of Nonamender Fail -   
ure), the issuance of a compliance statement will result in the corrective amendments being treated   
as if they had been timely adopted during the applicable remedial amendment period. However,   
the issuance of such a compliance statement does not constitute a determination as to whether   
the corrective plan amendment as drafted complies with the change in qualification requirement   
whether the corrective plan amendment conforms the terms of the plan to the plan's prior op-   
erations, or whether the terms of the plan, including the corrective plan amendment, satisfy the   
qualification requirements in form.   
     
(c)   Operational Failures. If a Plan Sponsor submits a VCP filing correcting an Operational Failure   
through a plan amendment and the plan amendment is accepted as a proper correction of the Oper-   
ational Failure, then the compliance statement issued under VCP constitutes a determination that   
the Operational Failure has been corrected, but is not a determination that the terms of the plan,   
including the corrective plan amendment, satisfy the qualification requirements in form.   
     
(d)   Failure to adopt § 403(b) Plan timely. A failure to adopt a § 403(b) Plan timely in accordance   
with the final regulations under § 403(b) and    Notice 2009-3 may be corrected under VCP. The   
issuance of a compliance statement will result in the § 403(b) Plan being treated as if it had been   
adopted timely for the purpose of making available the extended remedial amendment period set   
forth in Rev. Proc. 2017-18. However, the issuance of a compliance statement does not constitute   
a determination as to whether the written plan, as drafted, complies with the applicable require-   
ments of § 403(b) and the final § 403(b) regulations.   
     
(3)   Administrative procedures required. Where current procedures are inadequate for operating   
the plan in conformance with the applicable requirements of the Code, the compliance statement   
will be conditioned upon the implementation of stated administrative procedures. The IRS may   
prescribe appropriate administrative procedures in the compliance statement.   
     
(4)   Compliance statement conditioned upon timely correction. The compliance statement is con-   
ditioned on (i) there being no misstatement or omission of material facts in connection with the   
submission, and (ii) the implementation of the specific corrections and satisfaction of any other   
conditions in the compliance statement.   
     
(5)   Authority delegated. Compliance statements (including relief from any excise tax or other   
penalty as provided under section 6.09) are authorized to be signed by managers within Employee   
Plans Rulings and Agreements, under the Tax Exempt and Government Entities Operating Divi-   
sion of the IRS..09 Effect of compliance statement on examination. The compliance statement is binding upon   
both the IRS and the Plan Sponsor or Eligible Organization (as defined in section 10.11(1)) with   
respect to the specific tax matters identified therein for the periods specified, but does not pre-   
clude or impede an examination of the plan by the IRS relating to matters outside the compliance   
statement, even with respect to the same taxable year or years to which the compliance statement   
relates..10 Anonymous submissions not permitted. Effective January 1, 2022, VCP submissions may not   
be submitted on an anonymous basis. On or after that date, identifying information for the Plan   
Sponsor and plan along with other applicable information must be disclosed on the application   
form submitted, as well as any other forms, documents or exhibits included with the submission.   
Before January 1, 2022, an applicant may submit an anonymous VCP submission to the IRS, and   
the requirements of Rev. Proc. 2019-19, including sections 10, 11, and 12, will apply. However,   
the IRS will not process anonymous submissions made on or after January 1, 2022..11 Special rules relating to group submissions. (1)   Eligible Organizations. For purposes of a   
group submission, the term "Eligible Organization" means either (a) a sponsor (as that term is de-   
fined in section 4.07 of Rev. Proc.  2015-36) of a master or prototype plan, (b) a volume submitter   
practitioner (as that term is defined in section 13.05 of Rev. Proc. 2015-36), (c) a mass submitter   
(as that term is defined in sections 4.08 and 13.06 of Rev. Proc. 2015-36 and section 4.04  of Rev.   
Proc. 2017-41), (d) a provider (as that term is defined in section 4.08 of Rev. Proc. 2017-41), (e)   
an insurance company or other entity that has issued annuity contracts or provides services with   
respect to assets for § 403(b) Plans, or (f) an entity that provides its clients with administrative   
services with respect to Qualified Plans, § 403(b) Plans, SEPs, or SIMPLE IRA Plans. An Eligi-   
ble Organization is not eligible to make a group submission unless the failures in the submission   
result from a systemic error involving the Eligible Organization that affects at least 20 plans and   
results in at least 20 plans implementing correction. If, at any time before the IRS issues the com-   
pliance statement, the number of plans falls below 20, the Eligible Organization must notify the   
IRS that it is no longer eligible to make a group submission. Under these circumstances, the user   
fee may be retained by the IRS.   
     
(2)   General rules. An Eligible Organization may submit a VCP request for a Qualified Plan,   
a § 403(b) Plan, a SEP, or a SIMPLE IRA Plan under a group submission for Plan Document,   
Operational, and Employer Eligibility Failures. A separate user fee must be submitted for each   
plan submitted. For this purpose, in the case of a plan that consists of a basic plan document and   
adoption agreements, the number of plans submitted is determined by reference to the number of   
basic plan documents submitted.   
     
(3)   Special group submission procedures. (a) In general, a group submission is subject to the same   
procedures as any VCP submission in accordance with sections 10 and 11, except that the Eligible   
Organization is responsible for performing the procedural obligations imposed on the Plan Spon-   
sor under sections 10 and 11. See section 11.04(13) for a special submission requirement with   
respect to group submissions.   
     
(b) The Eligible Organization must provide notice to all Plan Sponsors of the plans included in the   
group submission. The notice must be provided at least 90 days before the Eligible Organization   
provides the IRS with the information required in section 10.11(3)(c). The purpose of the notice is   
to provide each Plan Sponsor with information relating to the group submission request. The no-   
tice should explain the reason for the group submission and inform the Plan Sponsor that the Plan   
Sponsor's plan will be included in the group submission unless the Plan Sponsor responds within   
the 90-day period requesting that the Plan Sponsor's plan be excluded from the group submission.   
     
(c) When an Eligible Organization receives an unsigned compliance statement on the proposed   
correction and agrees to the terms of the compliance statement, the Eligible Organization must   
return the signed compliance statement and any additional user fee required under Appendix A of   
Rev. Proc. 2021-4 (and its annual successors) to the IRS within 120 calendar days, in accordance   
with section 11.06. In addition, the Eligible Organization must submit a list containing (i) the   
employer tax identification numbers for the Plan Sponsors of the plans that have consented to be   
included in the group submission and to which the compliance statement may be applicable, (ii)   
the plans by name, plan number, type of plan, and number of plan participants, (iii) a certification   
that each Plan Sponsor received notice of the group submission, and (iv) a certification that each   
Plan Sponsor timely filed the Form 5500 series return for the most recent plan year for which   
the Form 5500 series return was required to have been filed. This list can be submitted at any   
stage of the submission process provided that the requirements of section 10.11(3)(b) have been   
satisfied. If the Eligible Organization submits this list with the initial submission, the list must be   
included in the Portable Document Format ("PDF") file described in section 11.03(2). If the list is   
not submitted with the initial submission, then once the submission has been assigned to an IRS   
representative, the Eligible Organization must submit the list on a USB drive in Microsoft Word   
or Excel to the IRS representative. Only those plans for which correction is actually made within   
240 calendar days of the date of the signed compliance statement (or within such longer period   
as may be agreed to by the IRS at the request of the Eligible Organization) will be covered by the   
compliance statement.   
     
(d) Notwithstanding section 4.02, if a Plan Sponsor of a plan that is eligible to be included in the   
group submission and has not requested to be excluded from the group submission pursuant to   
section 10.11(3)(b) is notified of an impending Employee Plans examination after the Eligible   
Organization filed the group submission with the IRS, the Plan Sponsor's plan will be included in   
the group submission. However, with respect to such plan, the group submission will not preclude   
or impede an examination of the plan with respect to any failures not identified in the group sub-   
mission at the time the plan comes Under Examination..12 Multiemployer and multiple employer plans. In the case of a multiemployer or multiple em-   
ployer plan, the plan administrator (rather than any contributing or adopting employer) must file   
a submission under VCP with respect to any plan failures and is responsible for performing the   
procedural obligations imposed on the Plan Sponsor under sections 10 and 11. The plan adminis-   
trator may designate an authorized representative to file a VCP submission with the IRS using the   
Pay.gov website as described in section 11.08. The request must be with respect to the plan, rather   
than a portion of the plan affecting any particular employer.   
     
SECTION 11. SUBMISSION PROCEDURES FOR VCP.01 General rules. (1) A VCP submission must satisfy the requirements of this section 11.   
     
(2) All VCP submissions must be filed using the Pay.gov website, as described in this section 11.   
On the Pay.gov website, applicants (generally, either a Plan Sponsor or a representative authorized   
pursuant to a valid Form 2848 as provided in section 11.08) will file a VCP submission and pay   
applicable user fees online. Paper VCP submissions postmarked after March 31, 2019, will be   
returned to the applicant.   
     
(3) A VCP submission must include a description of the failures, a description of the proposed   
methods of correction, and other procedural items set forth in this section 11..02 Submission of model forms. (1) Applicants may submit Form 14568 (Model VCP Compliance   
Statement) and attach separate narrative documents that describe the qualification failures, correc-   
tion methods, and other items described in section 11.04.   
     
(2) Schedules 1 through 9 to Form 14568 (Forms 14568-A through 14568-I) provide descriptions   
of common qualification failures and standardized correction methods that may be submitted in   
lieu of the separate narrative documents described in section 11.02(1). Even if an applicant does   
not submit the Form 14568, the applicant may include Schedules 1-9, as applicable, as part of the   
VCP submission to satisfy the requirements of this revenue procedure relating to the description   
and correction of identified failures and related changes in administrative procedures.   
     
(3) Applicants who submit the Form 14568 series should complete the forms electronically and   
combine all submission documents into a single PDF file that includes the completed forms. See   
sections 11.03(2) and 11.04.   
     
(4) Multiple schedules may be included in a single VCP submission.   
     
(5) A schedule may be submitted only if its content applies, without modification, to the appli-   
cant's situation.   
     
(6) If an applicant submits the Form 14568 or any of its applicable schedules, the applicant must   
submit the current versions of Form 14568 and Forms 14568-A through 14568-I, as applicable,   
which are available on the IRS website (https://www.irs.gov/retirement-plans/correcting-plan-er-   
rors-fill-in-vcp-submission-documents). The IRS reserves the right to modify the Form 14568   
series to improve usability, reflect changes in law, or create additional schedules by adding new   
forms to the Form 14568 series..03 Mandatory Submission Process using the Pay.gov website. Pursuant to section 11.01, for fil-   
ings submitted on or after April 1, 2019, applicants must use the Pay.gov website to file a VCP   
submission with the IRS and pay the applicable user fee. The submission process requires the   
following actions:   
     
(1)   Read the instructions to Form 8950. Prior to using the Pay.gov website, the applicant should   
read the instructions to Form 8950, Application for Voluntary Correction Program (VCP) Submis-   
sion Under the Employee Plans Compliance Resolution System. The instructions are located at   
https://www.irs.gov/pub/irs-pdf/i8950.pdf.   
     
(2)   Combine required items into PDF file. The applicant must convert all applicable items required       
in section 11.04 into PDF documents and combine them into a single PDF file that follows the   
suggested ordering of documents in section 11.11. If the combined PDF file exceeds 15 MB, the   
applicant must remove some documents (or parts of documents) so that the PDF file does not   
exceed 15 MB. Applicable documents that cannot be included in the PDF file because of the size   
limitation must be faxed to the IRS as described in section 11.03(7).   
     
(3)   Create a Pay.gov account. The applicant must create a Pay.gov account on the Pay.gov web-   
site. Using the Pay.gov account, the applicant must complete and sign Form 8950, Application   
for Voluntary Correction Program (VCP) Submission Under the Employee Plans Compliance   
Resolution System.   
     
(4)   Upload and attach PDF. After completing and signing the Form 8950 on the Pay.gov web-   
site, the applicant must upload the single PDF that contains copies of all submission documents   
required by this section 11. See section 11.03(7) for instructions for faxing VCP submission doc-   
uments that are not included in the PDF file due to the 15 MB limitation.   
     
(5)   Pay the applicable user fee. Submit the applicable user fee using the payment methods avail-   
able on the Pay.gov website.   
     
(6)   Payment confirmation. The Pay.gov website will generate a payment confirmation notice af-   
ter the VCP submission has been filed. The Pay.gov Tracking ID on this receipt will serve as the   
IRS control number for the VCP submission. The confirmation may be emailed to the Pay.gov   
account holder, with copies to other email addresses that the account holder chooses to provide.   
The applicant should retain a copy of the payment confirmation notice. If a payment confirmation   
is not generated by the Pay.gov website, then the VCP submission process has not been successful   
and the applicant should contact IRS customer account services at (877) 829-5500 (a toll-free   
number).   
     
(7)   Required documents not part of uploaded PDF due to size limitation. If there are required   
VCP submission documents that cannot be part of the submitted PDF due to the Pay.gov at-   
tachment file size limitation, the applicant must fax these documents to the IRS using fax number   
(855) 203-6996. Include the EIN, applicant name, plan name, and Pay.gov Tracking ID (the IRS   
control number) on the fax coversheet. This fax number is to be used only to supplement VCP sub-   
missions filed with the IRS on the Pay.gov website. A fax used to submit documents that cannot be   
part of the submitted PDF file due to the Pay.gov 15 MB limitation must include the IRS control   
number in order for the documents to be associated with the appropriate submission in a timely   
manner and to avoid significant delays in case processing.   
     
(8)   Subsequent changes or revisions. If an applicant needs to revise or amend a filed VCP sub   
mission (or any of its attachments), before it is assigned to an IRS representative, the applicant   
should not file a new submission. Instead, the applicant should call the VCP Status Inquiry Line   
at (626) 927-2011 (not a toll-free number). The IRS will assist the applicant to determine how the   
revised documents should be submitted..04 PDF file submission contents. The single PDF file described in section 11.03(2) and this sec--   
tion 11.04 that is uploaded to the Pay.gov website must include the following information:   
     
(1)   Identification of    failures. A complete description of the failures, the years in which the failures   
occurred, including closed years (that is, years for which the statutory period has expired), and the   
number of employees affected by each failure.   
     
(2)   Explanation. An explanation of how and why the failures arose, including a description of   
the administrative procedures applicable to the failures in effect at the time the failures occurred.   
     
(3)   Proposed method of correction. A detailed description of the method for correcting the failures   
that the Plan Sponsor has implemented or proposes to implement. Each step of the correction   
method must be described in narrative form. The description must include specific information   
needed to support the proposed correction method. This information includes, for example, the   
number of employees affected and the expected cost of correction (both of which may be approx-   
imated if the exact number cannot be determined at the time of the request), the years involved,   
and calculations or assumptions the Plan Sponsor used to determine the amounts needed for cor-   
rection.   
     
(4)   Earnings or actuarial adjustments. A description of the methodology that will be used to   
calculate Earnings or actuarial adjustments on any corrective contributions or distributions (indi-   
cating the computation periods and the basis for determining Earnings or actuarial adjustments, in   
accordance with section 6.02(4)).   
     
(5)   Computations. Specific calculations for each affected employee or a representative sample of   
affected employees. The sample calculations must be sufficient to demonstrate each aspect of the   
correction method proposed. For example, if a Plan Sponsor requests a compliance statement with   
respect to a failure to satisfy the contribution limits of § 415(c) and proposes a correction method   
that involves elective deferrals (whether matched or unmatched) and matching contributions, the   
Plan Sponsor must submit calculations illustrating the correction method proposed with respect   
to each type of contribution. As another example, with respect to a failure to satisfy the ADP test   
in § 401(k)(3), the Plan Sponsor must submit the ADP test results both before the correction and   
after the correction.   
     
(6)   Former employees      or beneficiaries. The method(s) that will be used to locate and notify former       
employees and beneficiaries, or an affirmative statement that no former employees or benefici-   
ries were affected by the failures or will be affected by the correction.   
     
(7)   Change in administrative procedures. A description of the measures that have been or will be   
implemented to ensure that the same failures will not recur.   
     
(8)   Plan document. A copy of the entire plan document or the relevant portions of the plan doc-   
ument. For example, in a case involving an improper exclusion of eligible employees from a   
profit-sharing plan with a cash or deferred arrangement, relevant portions of the plan document in-   
clude the eligibility, allocation, and cash or deferred arrangement provisions of the plan document   
(including an adoption agreement, if applicable), along with applicable definitions in the plan. In   
the case of a SEP or a SIMPLE IRA Plan, the entire plan document should be included in the PDF   
document. For submissions limited to Plan Document Failures defined in section 5.01 and 5.02 for   
which an applicant has adopted a Pre-approved Plan that uses an adoption agreement format, as   
provided in Rev. Proc. 2015-36, section 4.04 and Rev. Proc. 2017-41, section 4.07(3), a completed   
copy of the signed and dated adoption agreement is all that is necessary to be included in the PDF   
document; it is not necessary to include a copy of the entire plan document.   
     
(9)   Request for excise tax relief (§ 4972, 4973, 4974, or 4979) or additional tax relief under    
 § 72(t). If excise tax or additional tax relief is sought, a specific request for that relief should be   
included in the submission, along with explanations, where applicable, supporting such request.   
     
(10)   Loan failures and income tax reporting relief. A specific request for relief must be made if   
the applicant wants relief from reporting a corrected participant loan as a deemed distribution or   
wants to report the loan as a deemed distribution in the year of correction instead of the year in   
which the deemed distribution occurred.   
     
(11)   Transferred Assets. If a submission includes a failure that relates to Transferred Assets and   
the failure occurred prior to the transfer, a description of the transaction (including the dates of the   
employer change and the plan transfer).   
     
(12)   Section 403(b) Plans. In the case of a § 403(b) Plan submission, a statement that the Plan   
Sponsor has contacted all other entities involved with the plan and has been assured of coopera-   
tion in implementing the applicable correction, to the extent necessary. For example, if the plan's   
failure is the failure to satisfy the requirements of § 403(b)(1)(E) regarding elective deferrals, the   
Plan Sponsor must, prior to making the VCP submission, contact the insurance company or cus-   
todian with control over the plan's assets to assure cooperation in effecting a distribution of the   
excess deferrals adjusted for Earnings thereon. The VCP submission must also contain a statement   
as to the type of employer (for example, a tax-exempt organization described in § 501(c)(3)) that   
is making the VCP submission.   
     
(13)   Group Submissions. For a group submission, a copy of the relevant portions of the plan doc-   
ument(s).   
     
(14)   Orphan Plans. If the plan is an Orphan Plan, information that establishes that the applicant is   
an Eligible Party, as defined in section 5.03(2). In addition, the applicant should indicate whether   
relief from full correction or from the user fee is being requested and the support for such relief.   
See sections 4.08 and 6.02(5)(f).   
     
(15)   Plan Sponsor Authorization. If the Plan Sponsor is authorizing an individual to represent it   
before the IRS, sign and file a VCP submission on its behalf, or inspect and receive confidential   
information, a Form 2848, or Form 8821, Tax Information Authorization, as applicable. See sec-   
tion 11.08.   
     
(16)   Penalty of Perjury. If the Plan Sponsor is authorizing an individual to sign and file the VCP   
submission (including any subsequent material modifications of such submission), on its behalf,   
the following declaration:   "Under penalties of perjury, I declare that I have examined this    
 submission, including accompanying documents, and, to the best of my knowledge and be-    
 lief, the facts presented in support of this submission are true, correct, and complete."    The   
declaration must be signed by the Plan Sponsor, not the Plan Sponsor's representative..05 User fee due at the time of VCP submission using the Pay.gov website. Except as provided in   
sections 4.08 and 11.06, the user fee set forth in Appendix A of Rev. Proc. 2021-4 (and its annual   
successors) must be paid on the Pay.gov website as part of the VCP submission process. If the   
appropriate user fee is not paid, the VCP submission will not be processed..06 Additional user fee due for group submissions. In the case of a group submission, the initial   
user fee (described in Rev. Proc. 2021-4 (and its annual successors)) must be paid when the sub-   
mission is first made to the IRS on the Pay.gov website. Any additional user fee amount (also   
described in Appendix A of Rev. Proc. 2021-4 (and its annual successors)) is due at the time the   
compliance statement is signed by the Plan Sponsor and returned to the IRS, or when agreement   
has been reached between the IRS and the Plan Sponsor regarding correction of the failure(s). The   
payment of this additional user fee must be made using the Pay.gov website and the Pay.gov ver-   
sion of Form 8951, Additional User Fee Payment for Open Application for Voluntary Correction   
Program (VCP) Under the Employee Plans Compliance Resolution System (EPCRS)..07 Additional amounts due for certain submissions. In the case of a SEP or a SIMPLE IRA Plan,   
a sanction may be imposed pursuant to a closing agreement over and above the specified user fee   
in limited circumstances. See section 6.11(5)(b) for details. Also, in any case involving § 72(t), a   
sanction may be imposed pursuant to a closing agreement. See section 6.09(6)..08 Power of attorney requirements. (1) To appear before the IRS in connection with a submis-   
sion, the Plan Sponsor's authorized representative must comply with the requirements of section   
6.02(11) and (12) of Rev. Proc. 2021-4 (and its annual successors) and include a Form 2848. A   
Form 2848 that designates a representative who is not qualified to sign Part II of the Form 2848   
(for example, an unenrolled return preparer) will not be accepted. However, a Plan Sponsor may   
authorize an individual, such as an unenrolled return preparer, to inspect or receive confidential   
information using Form 8821 (see Form 8821 and Instructions). The Form 2848 and Form 8821,   
as applicable, must be included in the PDF file uploaded to the Pay.gov website. See sections   
11.03(2) and 11.04.   
     
(2) A Plan Sponsor may designate an authorized representative to file a VCP submission with the   
IRS using the Pay.gov website as described in this section 11. If the Plan Sponsor is authorizing an   
individual to sign and submit a VCP submission on its behalf, the Plan Sponsor must specifically   
indicate the scope of such authorization on the Form 2848. In order to properly authorize such   
individual, the Plan Sponsor should check the box in line 5a for "Other acts authorized" on Form   
2848 and include as a description "signing and filing of the Form 8950 and accompanying docu-   
ments as part of a VCP submission." This option is not available for individuals listed on a Form   
8821. See section 11.04(16) requiring a penalty of perjury declaration signed by the Plan Sponsor   
to be included in the application..09 Acknowledgement of filing. For submissions filed on the Pay.gov website, the IRS will not   
mail an acknowledgement letter to an applicant or its authorized representative that has filed a   
VCP submission (or non-VCP submission for a § 457(b) plan, as permitted by section 4.09). How-   
ever, when a VCP submission is filed through the Pay.gov website, a "Payment-Confirmation Ap-   
plication for Voluntary Correction Program" is generated when the VCP submission is success-   
fully filed. The Pay.gov Tracking ID on this receipt serves as the IRS control number for the filed   
VCP submission and should be considered an official acknowledgement. See section 11.03(6)..10 Maintenance of copies of submissions. Plan Sponsors and their authorized representatives   
should maintain copies of all correspondence submitted to the IRS with respect to their VCP   
submissions..11 Assembling the submission. The IRS will be able to process a VCP submission more quickly if   
the documents in the PDF uploaded on the Pay.gov website, as described in section 11.03(2) and   
11.04, are presented in the following order:   
     
(1) Plan Sponsor's Penalty of Perjury Statement.   
     
(2) Power of Attorney (Form 2848) or Tax Information Authorization (Form 8821).   
     
(3) Applicable cover letter.   
     
(4) The following narrative information:   
     
-    Description of the failures (if the failures relate to Transferred Assets, include a description of   
  the related employer transaction).   
     
-    An explanation of how and why the failures occurred. This information may be provided   
  using an applicable schedule in the Form 14568-A through 14568-I series.   
     
-    Description of the method for correcting failures, including Earnings methodology (if appli-   
  cable) and supporting computations (if applicable). This information may be provided using   
  an applicable schedule in the Form 14568-A through 14568-I series, including required en-   
  closures.   
     
-    Description of the method(s) used to locate or notify former employees or beneficiaries af-   
  fected by the failures or corrections. If no former employees or beneficiaries are affected   
    by the failures or corrections, then affirmatively state that fact when addressing the issue   
  This description may be provided using an applicable schedule in the Form 14568-A through   
  14568-I series.   
     
-    Description of the administrative procedures that have been or will be implemented to ensure   
  that the failures do not recur. This description may be provided using an applicable schedule   
  in the Form 14568-A through 14568-I series.   
     
-    Whether a request is being made in order for participant loans corrected under this revenue   
  procedure to not be treated as deemed distributions under § 72(p) and the supporting rationale   
  for such request. Alternatively, whether a request is being made for participant loans correct-   
  ed under this revenue procedure to be treated as deemed distributions under § 72(p) in the   
  year of correction. In either case, this request may be provided using an applicable schedule   
  in the Form 14568-A through 14568-I series, including required enclosures.   
     
-    Whether relief is being requested from imposition of the excise taxes under § 4972, 4973,   
  4974, or 4979, or the 10 percent additional income tax under § 72(t), and the supporting ra-   
  tionale for such relief. This request for relief may be provided using an applicable schedule in   
  the Form 14568-A through 14568-I series, including required enclosures.   
     
-    If the plan is an Orphan Plan, the supporting rationale relating to a request for relief from the   
  user fee.   
     
(5) If the VCP submission includes either Form 14568, Model Compliance Statement and/or any   
schedule (Forms 14568-A through 14568-I), any required information and enclosures, and any   
related schedules.   
     
(6) Supporting computations relating to correction, including computations for Earnings (if ap-   
plicable).   
     
(7) Relevant plan document language, or plan document (if applicable).   
     
(8) Copy of opinion, advisory, or determination letter (if applicable).   
     
(9) Any other items that may be relevant to the VCP submission.   
     
SECTION 12. VCP USER FEES.01 User fees. The user fees for all submissions under VCP are set forth in Appendix A of Rev.   
Proc. 2021-4 (and its annual successors). Plan Sponsors should refer to the annual Employee Plans   
revenue procedure in effect at the time they file their VCP submission with the IRS to determine   
the applicable user fee. All user fees must be paid upon filing the VCP submission (except as pro-   
vided in sections 4.08 and 11.06).   
     
PART VI.   
CORRECTION ON AUDIT (AUDIT CAP)   
     
SECTION 13. DESCRIPTION OF AUDIT CAP.01 Audit CAP requirements. If the IRS identifies a Qualification or § 403(b) Failure (other than   
a failure that has been corrected in accordance with SCP or VCP) upon an Employee Plans or     
Exempt Organizations examination of a Qualified Plan, § 403(b) Plan, SEP, or SIMPLE IRA Plan   
the requirements of this section 13 are satisfied with respect to the failure if the Plan Sponsor   
corrects the failure, pays a sanction in accordance with section 14, satisfies any additional requir-   
ments of section 13.03, and enters into a closing agreement with the IRS. This section 13 also     
applies if the IRS identifies a participant loan that did not comply with the requirements of § 72(p)   
(2) (other than a loan failure that is corrected in accordance with SCP or VCP) upon an Employee     
Plans or Exempt Organizations examination of a Qualified Plan or § 403(b) Plan..02 Payment of sanction. Payment of the sanction under section 14 generally is required at the     
time the closing agreement is signed. Beginning January 1, 2022, the Plan Sponsor must pay the     
sanction under Audit CAP using the payment methods available on the Pay.gov website, unless     
the Plan Sponsor does not have the capability to use the methods on the Pay.gov website. In that     
case, the Plan Sponsor may pay the Audit CAP sanction by submitting a certified check or ca-     
shier's check made payable to the United States Treasury. Prior to January 1, 2022, Plan Sponsors     
should follow the procedures set forth in section 13.02 of Rev. Proc. 2019-19..03 Additional requirements. Depending on the nature of the failure, the IRS will discuss the ap-     
propriateness of the plan's existing administrative procedures with the Plan Sponsor. If existing     
administrative procedures are inadequate for operating the plan in conformance with the applica-     
ble requirements of the Code, the closing agreement may be conditioned upon the implementation     
of stated procedures..04 Failure to reach resolution. If the IRS and the Plan Sponsor cannot reach an agreement with     
respect to the correction of the failure(s) or the amount of the sanction then the plan will be dis-     
qualified, the plan or contract will be treated as if it did not comply with § 403(b), the SEP will be   
treated as if it did not comply with § 408(k), or the SIMPLE IRA Plan will be treated as if it did     
not comply with § 408(p), as applicable..05 Effect of closing agreement. A closing agreement constitutes an agreement between the IRS     
and the Plan Sponsor that is binding with respect to the tax matters identified in the agreement for   
the periods specified..06 Other procedural rules. The procedural rules for Audit CAP are set forth in IRM 4.71.3.3.1,     
EPCRS Closing Agreements, and IRM 7.11.8, EP Determinations Closing Agreement Program.     
     
SECTION 14. AUDIT CAP SANCTION.01 Determination of sanction.   The sanction under Audit CAP is a negotiated amount that is de-   
termined based on the facts and circumstances, including the relevant factors described in section   
14.02. Sanctions will not be excessive and will bear a reasonable relationship to the nature, extent,   
and severity of the failures, based on the factors below. The sanction generally will not be less than   
the VCP user fee applicable to the plan. See section 14.04 for special rules relating to the sanction   
for Nonamender Failures discovered during the determination letter application process..02 Factors considered. Factors include:   
     
(1)   For all plans (as appropriate):   
     
(a) the steps taken by the Plan Sponsor to ensure that the plan had no failures;   
     
(b) the steps taken by the Plan Sponsor to identify failures that may have occurred;   
     
(c) the extent to which correction had progressed before the examination was initiated, including   
full correction;   
     
(d) the number and type of employees affected by the failure;   
     
(e) the number of nonhighly compensated employees who would be adversely affected if the plan   
were not treated as qualified or as satisfying the requirements of § 403(b), 408(k), or 408(p);   
     
(f) whether the failure is a failure to satisfy the requirements of § 401(a)(4), 401(a)(26), or 410(b),   
either directly or through § 403(b)(12);   
     
(g) whether the failure is solely an Employer Eligibility Failure;   
     
(h) the period over which the failure occurred (for example, the time that has elapsed since the   
end of the applicable remedial amendment period under § 401(b) for a Plan Document Failure);   
     
(i) the reason for the failure (for example, data errors such as errors in transcription of data, the   
transposition of numbers, or minor arithmetic errors), and   
     
(j) the Maximum Payment Amount.   
     
(2)   Additional factors for Nonamender Failures in Qualified Plans.     The factors considered for   
Nonamender Failures in Qualified Plans also include:   
     
(a) whether the plan is the subject of a Favorable Letter;   
     
(b) the internal controls implemented by the Plan Sponsor to ensure the timely adoption of re-   
quired amendments;   
     
(c) the extent to which the Plan Sponsor had adopted a timely plan amendment which later is   
found not to satisfy the qualification requirements of the Code;   
     
(d) the extent to which the Plan Sponsor had otherwise adopted applicable amendments identified   
on the Required Amendments List described in section 9 of Rev. Proc. 2016-37, as modified, and   
published annually in the Internal Revenue Bulletin; and   
     
(e) the extent to which the Plan Sponsor had reasonably determined that a provision on the Re-   
quired Amendments List described in section 9 of Rev. Proc. 2016-37, as modified, was not appli-   
cable to the Plan Sponsor's plan.   
     
(3)   Participant loan failure.     An additional factor taken into account with respect to a participant   
loan that did not comply with the requirements of § 72(p)(2) is the extent to which the failure is a   
result solely of action (or inaction) of the employer or its agents (or the extent to which the failure   
is a result of the employee's or beneficiary's action or inaction)..03 Transferred Assets. If the examination involves a plan with Transferred Assets and the IRS   
determines that no new incidents of the failures that relate to the Transferred Assets occurred after   
the end of the second plan year that begins after the corporate merger, acquisition, or other similar   
employer transaction, the sanction under Audit CAP will not exceed the sanction that would apply   
if the Transferred Assets were maintained as a separate plan..04 Sanction for Nonamender Failures discovered during the determination letter application pro-   
cess. (1) Except as provided in section 14.04(2) and (3), if the only failure identified by the IRS   
during the determination letter application process is a Nonamender Failure that was not volun-   
tarily identified by the Plan Sponsor:   
     
(a) The sanction for an individually designed plan is determined as follows:   
     
(i) 150 percent of the applicable VCP user fee described in Appendix A of Rev. Proc. 2021-4 (and   
its annual successors) if the Nonamender Failure arose in connection with an amendment that was   
required to be adopted after the end of the plan's last remedial amendment cycle to which Rev.   
Proc. 2007-44 applied, and   
     
(ii) 250 percent of the applicable VCP user fee described Appendix A of Rev. Proc. 2021-4 (and   
its annual successors) if the Nonamender Failure arose in connection with an amendment that was   
required to be adopted at any time before the end of the plan's last remedial amendment cycle to   
which Rev. Proc. 2007-44 applied.   
     
(b) The sanction for a Pre-approved Plan is determined as follows:   
     
(i) 150 percent of the applicable VCP user fee described in Appendix A of Rev. Proc. 2021-4 (and   
its annual successors) if the Nonamender Failure arose in connection with an amendment that was   
required to be adopted after the end of the plan's second six-year remedial amendment cycle, and   
     
(ii) 250 percent of the applicable VCP user fee described in Appendix A of Rev. Proc. 2021-4   
(and its annual successors) if the Nonamender Failure arose in connection with an amendment   
that was required to be adopted at any time before the end of the plan's second six-year remedial   
amendment cycle.   
     
(2) The sanction prescribed in section 14.04(1) may be reduced or increased in the following   
circumstances:   
     
(a) If a plan amendment was timely adopted in order to maintain the plan's qualified status but is   
found not to satisfy the qualification requirements of the Code, the applicable sanction described   
in section 14.04(1) may be reduced based on the facts and circumstances, including the factors   
described in section 14.02(2)(a), (b) and (c). However, the sanction generally will not be less than   
the VCP user fee applicable to the plan.   
     
(b) If a Nonamender Failure is egregious, the sanction will be determined under section 14.01.   
Whether a Nonamender Failure is egregious will be determined based on the facts and circum-   
stances, including:   
     
(i) the number of plan amendments that were not timely adopted;   
     
(ii) the number of years that had elapsed from the end of the remedial amendment period until   
amendments were adopted (if at all); and   
     
(iii) the extent to which the plan lacked internal controls to facilitate the timely adoption of amend-   
ments.   
     
PART VII.   
EFFECT ON OTHER DOCUMENTS; EFFECTIVE DATE; PAPERWORK REDUCTION ACT   
     
SECTION 15. EFFECT ON OTHER DOCUMENTS   
     
Rev. Proc. 2019-19 is modified and superceded by this revenue procedure.   
     
SECTION 16. EFFECTIVE DATE   
     
This revenue procedure is generally effective July 16, 2021; however, the extension of the sunset   
of the safe harbor correction method (from December 31, 2020, to December 31, 2023) is effec-   
tive January 1, 2021. Also, effective January 1, 2022, (1) VCP submissions may not be submitted   
on an anonymous basis, (2) anonymous pre-submission conference requests may be submitted   
under VCP, and (3) except as otherwise provided in section 13.02, Audit CAP sanctions must be   
paid using the Pay.gov website.   
     
SECTION 17. PUBLIC COMMENTS   
     
The Treasury Department and the IRS invite comments on this revenue procedure. Comments   
should be submitted in writing by October 14, 2021, and should include a reference to Revenue   
Procedure 2021-30. Comments may be submitted in one of two ways:   
     
(1) Electronically via the Federal eRulemaking Portal at Regulations.gov (type IRS Revenue Pro-   
cedure 2021-30 in the search field on the Regulations.gov homepage to find this revenue proce-   
dure and submit comments).   
     
(2) Alternatively, by mail to: Internal Revenue Service, Attn: CC:PA:LPD:PR (Revenue Proce-   
dure 2021-30), Room5203, P.O. Box 7604, Ben Franklin Station, Washington, D.C. 20044.   
     
All commenters are strongly encouraged to submit public comments electronically. The IRS ex-   
pects to have limited personnel available to process public comments that are submitted on paper   
through mail. Until further notice, any comments submitted on paper will be considered to the   
extent practicable. The Treasury Department and the IRS will publish for public availability any   
comment submitted electronically and, to the extent practicable, on paper to its public docket.   
     
SECTION 18. PAPERWORK REDUCTION ACT   
     
The collection of information contained in this revenue procedure has been reviewed and ap-   
proved by the Office of Management and Budget in accordance with the Paperwork Reduction Act   
(44 U.S.C. 3507) under control number 1545-1673.   
     
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of   
information unless the collection of information displays a valid OMB control number.   
     
The collection of information in this revenue procedure is in sections 4.05, 6.02(5)(d), 6.09(5),   
6.09(6), 10, 11, 13.01, Appendix A, sections.05(8)(c) and.05(9)(c), and Appendix B, sections   
2.01-2.07. This information is required to enable the Commissioner, Tax Exempt and Government   
Entities Division of the IRS to consider the issuance of various types of closing agreements and   
compliance statements. This information will be used to issue closing agreements and compliance   
statements to allow individual plans to continue to maintain their tax favored status. As a result,   
favorable tax treatment of the benefits of the eligible employees is retained. The likely respon-   
dents are individuals, state or local governments, businesses or other non-profit institutions, non-   
profit institutions, and small businesses or organizations.   
     
The estimated total annual reporting or recordkeeping burden is 91,791 hours.   
     
The estimated annual burden per respondent/recordkeeper varies from.5 to 45.5 hours, depending   
on individual circumstances, with an estimated average of 25.28 hours. The estimated number of   
respondents or recordkeepers is 5,375.   
     
The estimated frequency of responses is occasional.   
     
Books or records relating to a collection of information must be retained as long as their contents   
may become material in the administration of any internal revenue law. Generally, tax returns and   
tax return information are confidential, as required by 26 U.S.C. § 6103.   
     
DRAFTING INFORMATION   
     
The principal author of this revenue procedure is Mathew Mulling of the Office of the Associate   
Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). For further   
information regarding this revenue procedure, please contact the Employee Plans' taxpayer assis-   
tance telephone service at (877) 829-5500 (a toll-free number) between the hours of 8:30 a.m. and   
4:30 p.m. Eastern Time, Monday through Friday.   
     
APPENDIX A   
OPERATIONAL FAILURES AND CORRECTION METHODS.01 General rule. (1)   In general. This Appendix A sets forth Operational Failures and Correction   
Methods relating to Qualified Plans. In each case, the method described corrects the Operational   
Failure identified in the headings below. Corrective allocations and distributions should reflect   
Earnings and actuarial adjustments in accordance with section 6.02(4) of this revenue procedure.   
The correction methods in this Appendix A are acceptable to correct Operational Failures under   
VCP, and to correct Qualification Failures under SCP that occurred notwithstanding that the plan   
has established practices and procedures reasonably designed to promote and facilitate overall   
compliance with the Code, as provided in section 4.04 of this revenue procedure. To the extent   
a failure listed in this Appendix A could occur under a § 403(b) Plan, a SEP, or a SIMPLE IRA   
Plan, the correction method listed for such failure, such as the correction method for an Employee   
Elective Deferral failure in section.05(9), may similarly be used to correct the failure. Unless   
otherwise specified, section references in this Appendix A refer to sections in this appendix.   
     
(2)   Correction methods permitted in Appendix A and Appendix B are safe harbors. Correction   
methods permitted in Appendix A and Appendix B are deemed to be reasonable and appropriate   
methods of correcting a failure. Both Appendices set forth various correction methods that may be   
used to correct a failure, depending on the facts and circumstances. A Plan Sponsor may choose   
any correction method by which the plan can satisfy the eligibility requirements. For example, a   
§ 401(k) plan that improperly excluded an employee may use the general correction method under   
section.05(2). However, if the § 401(k) plan has an automatic contribution feature, the plan may   
use the correction method under section.05(8), assuming the plan satisfies the eligibility require-   
ments in section.05(8)(a). If the § 401(k) plan doesn't have an automatic contribution feature but   
corrects the failure within a specified time period, the plan may use the correction method under   
section.05(9)(a) or (b), assuming the plan satisfies the eligibility requirements in section.05(9)   
(a) or (b).   
     
(3)   Other reasonable correction methods permitted. As provided in section 6.02(2) of this revenue   
procedure, there may be more than one reasonable and appropriate correction of a failure. Any   
correction method used that is not described in Appendix A or Appendix B would need to satisfy   
the correction principles of section 6.02 of this revenue procedure. For example, the sponsor of   
a § 403(b) Plan that failed to satisfy the universal availability requirement of § 403(b)(12)(A)   
(ii) might propose to determine the missed deferral for an excluded employee using a percentage   
based on the average deferrals for all employees in the plan instead of using the rule for calcu-   
lating missed deferrals set out in section.05(6)(b). In doing so, the proposed correction method   
would fall outside Appendix A, and the Plan Sponsor would need to satisfy the general correction   
principles of section 6.02 and other applicable rules in this revenue procedure..02 Failure to properly provide the minimum top-heavy benefit under § 416 to non-key employ-   
ees. In a defined contribution plan, the permitted correction method is to properly contribute and   
allocate the required top-heavy minimums to the plan in the manner provided for in the plan on   
behalf of the non-key employees (and any other employees required to receive top-heavy alloca-   
tions under the plan). In a defined benefit plan, the minimum required benefit must be accrued in   
the manner provided in the plan..03 Failure to satisfy the ADP test set forth in § 401(k)(3), the ACP test set forth in § 401(m)(2),   
or, for plan years beginning on or before December 31, 2001, the multiple use test of § 401(m)   
(9). The permitted correction method is to make QNECs (as defined in § 1.401(k)(6) on behalf of   
the nonhighly compensated employees to the extent necessary to raise the actual deferral percent-   
age or actual contribution percentage of the nonhighly compensated employees to the percentage   
needed to pass the test or tests. For purposes of correcting a failed ADP, ACP, or multiple use test,   
any amounts used to fund QNECs must satisfy the definition of QNEC in § 1.401(k)(6). The con-   
tributions must be made on behalf of all eligible nonhighly compensated employees (to the extent   
permitted under § 415) and must be the same percentage of compensation. QNECs contributed   
to satisfy the ADP test need not be taken into account for determining additional contributions   
(for example, a matching contribution), if any. For purposes of this section.03, employees who   
would have received a matching contribution had they made elective deferrals must be counted as   
eligible employees for the ACP test, and the plan must satisfy the ACP test. Under this correction   
method, a plan may not be treated as two separate plans, one covering otherwise excludable em-   
ployees and the other covering all other employees (as permitted in §1.410(b)-6(b)(3)), in order   
to reduce the number of employees eligible to receive QNECs. Likewise, under this correction   
method, the plan may not be restructured into component plans in order to reduce the number of   
employees eligible to receive QNECs..04 Failure to distribute elective deferrals in excess of the § 402(g) limit (in contravention of   
§ 401(a)(30)). The permitted correction method is to distribute the excess deferral to the employee   
and to report the amount as taxable in the year of deferral and in the year distributed. The inclu-   
sion of the deferral and the distribution in gross income applies whether or not any portion of the   
excess deferral is attributable to a designated Roth contribution (see § 402A(d)(3)). In accordance   
with §1.402(g)-1(e)(1)(ii), a distribution to a highly compensated employee is included in the   
ADP test and a distribution to a nonhighly compensated employee is not included in the ADP test..05 Exclusion of an eligible employee from all contributions or accruals under the plan for one or   
more plan years. (1)   Improperly excluded employees: employer provided contributions or benefits.   
For plans with employer provided contributions or benefits (which are neither elective deferrals   
under a qualified cash or deferred arrangement under § 401(k) nor matching or after-tax employee   
contributions that are subject to § 401(m)), the permitted correction method is to make a contribu-   
tion to the plan on behalf of the employees excluded from defined contribution plan or to provide   
benefit accruals for the employees excluded from a defined benefit plan.   
     
(2)   Improperly excluded employees: contributions subject to § 401(k) or 401(m). (a) For plans   
providing benefits subject to § 401(k) or 401(m), the corrective contribution for an improperly   
excluded employee is described in the following paragraphs of this section.05(2). (See Appendix   
B, Examples 3 through 12.)   
     
(b) If the employee was not provided the opportunity to elect and make elective deferrals (other   
than designated Roth contributions) to a § 401(k) plan that does not satisfy § 401(k)(3) by apply-   
ing the safe harbor contribution requirements of § 401(k)(12) or 401(k)(13), the employer must   
make a QNEC to the plan on behalf of the employee that replaces the "missed deferral opportu-   
nity." The missed deferral opportunity is equal to 50 percent of the employee's "missed deferral."   
The missed deferral is determined by multiplying the actual deferral percentage for the year of ex-   
clusion (whether or not the plan is using current or prior year testing) for the employee's group in   
the plan (either highly compensated or nonhighly compensated) by the employee's compensation   
for that year. The employee's missed deferral amount is reduced further to the extent necessary to   
ensure that the missed deferral does not exceed applicable plan limits, including the annual defer-   
ral limit under § 402(g) for the calendar year in which the failure occurred. Under this correction   
method, a plan may not be treated as two separate plans, one covering otherwise excludable em-   
ployees and the other covering all other employees (as permitted in §1.410(b)-6(b)(3)) in order to   
reduce the applicable ADP, the corresponding missed deferral, and the required QNEC. Likewise,   
restructuring the plan into component plans is not permitted in order to reduce the applicable ADP,   
the corresponding missed deferral, and the required QNEC. The QNEC required for the employee   
for the missed deferral opportunity for the year of exclusion is adjusted for Earnings to the date   
the corrective QNEC is made on behalf of the affected employee.   
     
(c) If the employee should have been eligible for but did not receive an allocation of employer   
matching contributions under a non-safe harbor plan because he or she was not given the oppor-   
tunity to make elective deferrals, the employer must make a corrective employer nonelective con-   
tribution on behalf of the affected employee. The corrective employer nonelective contribution is   
equal to the matching contribution the employee would have received had the employee made a   
deferral equal to the missed deferral determined under section.05(2)(b). The corrective employer   
nonelective contribution must be adjusted for Earnings to the date the corrective contribution is   
made on behalf of the affected employee.   
     
(d)(i) If the employee was not provided the opportunity to elect and make elective deferrals (other   
than designated Roth contributions) to a safe harbor § 401(k) plan that uses a rate of matching   
contributions to satisfy the safe harbor requirements of § 401(k)(12), then the missed deferral is   
deemed equal to the greater of 3 percent of compensation or the maximum deferral percentage for   
which the employer provides a matching contribution rate that is at least as favorable as 100 per-   
cent of the elective deferral made by the employee. If the employee was not provided the opportu-   
nity to elect and make elective deferrals (other than Roth contributions) to a safe harbor § 401(k)   
plan that uses nonelective contributions to satisfy the safe harbor requirements of § 401(k)(12),   
then the missed deferral is deemed equal to 3 percent of compensation. In either event, this esti-   
mate of the missed deferral replaces the estimate based on the ADP test in a traditional § 401(k)   
plan. The required QNEC on behalf of the excluded employee is equal to (i) 50 percent of the   
missed deferral, plus (ii) either (A) an amount equal to the contribution that would have been   
required as a matching contribution based on the missed deferral in the case of a safe harbor   
§ 401(k) plan that uses a rate of matching contributions to satisfy the safe harbor requirements of   
§ 401(k)(12) or (B) the nonelective contribution that would have been made on behalf of the em-   
ployee in the case of a safe harbor § 401(k) plan that uses nonelective contributions to satisfy the   
safe harbor requirements of § 401(k)(12). The QNEC required to replace the employee's missed   
deferral opportunity and the corresponding matching or nonelective contribution is adjusted for   
Earnings to the date the corrective QNEC is made on behalf of the employee.   
     
(ii) If the employee was not provided the opportunity to make an affirmative election with respect   
to elective deferrals (other than designated Roth contributions) to a safe harbor § 401(k) plan that   
uses an automatic contribution arrangement to satisfy the safe harbor requirements of § 401(k)   
(13) and the failure occurs for a period that does not extend past the last day of the first plan year   
which begins after the date on which the first deferral would have been made (but for the failure),   
then the missed deferral is deemed to equal 3 percent of the employee's compensation under the   
plan. If the failure occurs for a plan year or plan years subsequent to the period described in the   
prior sentence, then the missed deferral for each subsequent plan year is equal to the qualified per-   
centage specified in the plan document to comply with § 401(k)(13)(C)(iii). The missed deferral   
determined in accordance with this section.05(2)(d)(ii) replaces the estimate based on the ADP   
test in a traditional § 401(k) plan. The required corrective employer contribution on behalf of the   
excluded employee is equal to (i) the missed deferral opportunity, which is an amount equal to 50   
percent of the missed deferral, plus (ii) an amount equal to either the matching contribution that   
would apply under § 401(k)(13) based on the missed deferral or the nonelective contribution that   
would have been made on behalf of the employee under § 401(k)(13), whichever applies under   
the plan. The employer contribution for the missed deferral opportunity must be a QNEC. The cor-   
rective employer contribution consisting of the QNEC required to replace the employee's missed   
deferral opportunity and the corresponding matching or nonelective contribution is adjusted for   
Earnings to the date the corrective employer contribution is made on behalf of the employee.   
     
(iii) In the case of a failure to make the required nonelective contribution for a plan year under   
a safe harbor § 401(k) plan that uses the nonelective contribution under § 401(k)(12)(C) to sat-   
isfy the safe harbor requirements of § 401(k)(12) or that uses the nonelective contribution under   
§ 401(k)(13)(D)(i)(I) to satisfy the safe harbor requirements of § 401(k)(13), the nonelective con-   
tribution (which must be a QNEC in the case of a plan that uses § 401(k)(12) to satisfy ADP) re-   
quired to be made on behalf of the employee is equal to 3 percent of the employee's compensation   
during the period of the failure. For this purpose, the period of the failure for any plan year ends   
at the end of the plan year or, if earlier, the later of June 18, 2009 or the date 30 days after notice   
was provided to employees as required under applicable Treasury Regulations (see §1.401(k)-3(g)   
(ii) of the proposed regulations, at 74 FR 23134).   
     
(e) If the employee should have been eligible to elect and make after-tax employee contribu-   
tions (other than designated Roth contributions), the employer must make a QNEC to the plan   
on behalf of the employee that is equal to the "missed opportunity for making after-tax employee   
contributions." The missed opportunity for making after-tax employee contributions is equal to 40   
percent of the employee's "missed after-tax contributions." The employee's missed after-tax con-   
tributions are equal to the ACP for the employee's group (either highly compensated or nonhighly   
compensated) times the employee's compensation, but with the resulting amount not to exceed   
applicable plan limits. If the ACP consists of both matching and after-tax employee contributions,   
then, in lieu of basing the employee's missed after-tax employee contributions on the ACP for the   
employee's group, the employer is permitted to determine separately the portion of the ACP that   
is attributable to after-tax employee contributions for the employee's group (either highly com-   
pensated or nonhighly compensated), multiplied by the employee's compensation for the year of   
exclusion. The QNEC must be adjusted for Earnings to the date the corrective QNEC is made on   
behalf of the affected employee.   
     
(f) If the employee was improperly excluded from an allocation of employer matching contribu-   
tions because he or she was not given the opportunity to make after-tax employee contributions   
(other than designated Roth contributions), the employer must make a corrective employer non-   
elective contribution on behalf of the affected employee. The corrective employer nonelective   
contribution is equal to the matching contribution the employee would have received had the   
employee made an after-tax employee contribution equal to the missed after-tax employee contri-   
bution determined under section.05(2)(e). The corrective employer nonelective contribution must   
be adjusted for Earnings to the date the corrective contribution is made on behalf of the affected   
employee.   
     
(g) The methods for correcting the failures described in this section.05(2) do not apply until after   
the correction of other qualification failures. Thus, for example, if, in addition to the failure of   
excluding an eligible employee, the plan also failed the ADP or ACP test, the correction methods   
described in section.05(2)(b) through (f) cannot be used until after correction of the ADP or ACP   
test failures. For purposes of this section.05(2), in order to determine whether the plan passed the   
ADP or ACP test, the plan may rely on a test performed with respect to those eligible employees   
who were provided with the opportunity to make elective deferrals or after-tax employee contribu-   
tions and receive an allocation of employer matching contributions, in accordance with the terms   
of the plan, and may disregard the employees who were improperly excluded.   
     
(3)   Improperly excluded employees: designated Roth contributions. For employees who were   
improperly excluded from plans that (i) are subject to § 401(k) (as described in section.05(2))   
and (ii) provide for the optional treatment of elective deferrals as designated Roth contributions,   
the correction is the same as described under section.05(2). Thus, for example, the corrective em-   
ployer contribution required to replace the missed deferral opportunity is made in accordance with   
the method described in section.05(2)(b) in the case of a § 401(k) plan that is not a safe harbor   
§ 401(k) plan or section.05(2)(d) in the case of a safe  harbor 401(k)  § plan. However, none of the   
corrective contributions made by the employer may be treated as designated Roth contributions   
(and may not be included in an employee's gross income) and thus may not be contributed or   
allocated to a Roth account (as described in § 402A(b)(2)). The corrective employer contribution   
must be allocated to an account established for receiving a QNEC or any other employer contri-   
bution in which the employee is fully vested and subject to the withdrawal restrictions that apply   
to elective deferrals.   
     
(4)   Improperly excluded employees: catch-up contributions only. (a)   Correction for missed catch-    
 up contributions. If an eligible employee was not provided the opportunity to elect and make   
catch-up contributions to a § 401(k) plan, the employer must make a QNEC to the plan on behalf   
of the employee that replaces the "missed deferral opportunity" attributable to the failure to permit   
an eligible employee to make a catch-up contribution pursuant to § 414(v). The missed deferral   
opportunity for catch-up contributions is equal to 50 percent of the employee's missed deferral   
attributable to catch-up contributions. For this purpose, the missed deferral attributable to catch-   
up contributions is one half of the applicable catch-up contribution limit for the year in which the   
employee was improperly excluded. Thus, for example if an eligible employee was improperly   
precluded from electing and making catch-up contributions in 2006, the missed deferral attribut-   
able to catch-up contributions is $2,500, which is one half of $5,000, the 2006 catch-up contribu-   
tion limit for a § 401(k) plan. The eligible employee's missed deferral opportunity is $1,250 (that   
is, 50 percent of the missed deferral attributable to catch-up contributions of $2,500). The QNEC   
required to replace the missed deferral opportunity for the year of exclusion is adjusted for Earn-   
ings to the date the corrective QNEC is made on behalf of the affected employee. For purposes   
of this correction, an eligible employee, pursuant to § 414(v)(5), refers to any participant who   
(i) would have attained age 50 by the end of the plan's taxable year and (ii) in the absence of the   
plan's catch-up provision, could not make additional elective deferrals on account of the plan or   
statutory limitations described in § 414(v)(3) and §1.414(v)-1(b)(1).   
     
(b)   Correction for missed matching contributions on catch-up contributions. If an employee was   
precluded from making catch-up contributions under this section.05(4), the Plan Sponsor should   
ascertain whether the affected employee would have been entitled to an additional matching con-   
tribution on account of the missed deferral. If the employee would have been entitled to an ad-   
ditional matching contribution, then the employer must make a corrective employer nonelective   
contribution for the matching contribution on behalf of the affected employee. The corrective   
employer nonelective contribution is equal to the additional matching contribution the employee   
would have received had the employee made a deferral equal to the missed deferral determined   
under paragraph (a) of this section.05(4). The corrective employer nonelective contribution must   
be adjusted for Earnings to the date the corrective contribution is made on behalf of the affected   
employee. If in addition to the failure to provide matching contributions under this section.05(4)   
(b), the plan also failed the ACP test, the correction methods described in this section cannot be   
used until after correction of the ACP test failure. For purposes of this section, in order to deter-   
mine whether the plan passed the ACP test the plan may rely on a test performed with respect to   
those eligible employees who were provided with the opportunity to make elective deferrals or   
after-tax employee contributions and receive an allocation of employer matching contributions, in   
accordance with the terms of the plan, and may disregard any employer matching contribution that   
was not made on account of the plan's failure to provide an eligible employee with the opportunity   
to make a catch-up contribution.   
     
(5)   Failure to implement an employee election. (a)   Missed opportunity for elective deferrals. For   
eligible employees who filed elections to make elective deferrals under the Plan which the Plan   
Sponsor failed to implement on a timely basis, the Plan Sponsor must make a QNEC to the plan on   
behalf of the employee to replace the "missed deferral opportunity." The missed deferral opportu-   
nity is equal to 50 percent of the employee's "missed deferral." The missed deferral is determined   
by multiplying the employee's elected deferral percentage by the employee's compensation. If   
the employee elected a dollar amount for an elective deferral, the missed deferral would be the   
specified dollar amount. The employee's missed deferral amount is reduced further to the extent   
necessary to ensure that the missed deferral does not exceed applicable plan limits, including   
the annual deferral limit under § 402(g) for the calendar year in which the failure occurred. The   
QNEC must be adjusted for Earnings to the date the corrective QNEC is made on behalf of the   
affected employee.   
     
(b)   Missed opportunity for after-tax employee contributions. For eligible employees who filed   
elections to make after-tax employee contributions under the Plan which the Plan Sponsor failed   
to implement on a timely basis, the Plan Sponsor must make a QNEC to the plan on behalf of   
the employee to replace the employee's missed opportunity for after-tax employee contributions.   
The missed opportunity for making after-tax employee contributions is equal to 40 percent of   
the employee's "missed after-tax contributions." The missed after-tax employee contribution is   
determined by multiplying the employee's elected after-tax employee contribution percentage by   
the employee's compensation. The QNEC must be adjusted for Earnings to the date the corrective   
QNEC is made on behalf of the affected employee.   
     
(c)   Missed opportunity affecting matching contributions. In the event of failure described in para-   
graph (a) or (b) of this section.05(5), if the employee would have been entitled to an addition-   
al matching contribution had either the missed deferral or after-tax employee contribution been   
made, then the Plan Sponsor must make a corrective employer nonelective contribution for the   
matching contribution on behalf of the affected employee, or a corrective QNEC in the case of a   
safe harbor plan under § 401(k)(12). The corrective employer nonelective contribution or QNEC   
is equal to the matching contribution the employee would have received had the employee made   
a deferral equal to the missed deferral determined under this paragraph. The corrective employer   
nonelective contribution or QNEC must be adjusted for Earnings to the date the corrective contri-   
bution or QNEC is made on behalf of the affected employee.   
     
(d)   Coordination with correction of other Qualification Failures. The method for correcting the     
failures described in this section.05(5) does not apply until after the correction of other qualifica-   
tion failures. Thus, for example, if in addition to the failure to implement an employee's election,   
the plan also failed the ADP test or ACP test, the correction methods described in section.05(5)   
(a), (b), or (c) cannot be used until after correction of the ADP or ACP test failures. For purposes   
of this section.05(5), in order to determine whether the plan passed the ADP or ACP test the plan   
may rely on a test performed with respect to those eligible employees who were not impacted by   
the Plan Sponsor's failure to implement employee elections and received allocations of employer   
matching contributions, in accordance with the terms of the plan, and may disregard employees   
whose elections were not properly implemented.   
     
(6)   Failure of a § 403(b) Plan to satisfy the universal availability requirement of § 403(b)(12)(A)    
 (ii). (a) Subject to the specific rules in this section.05(6), the correction methods set forth in this   
section.05 (and Appendix B, section 2.02) for a Qualified Plan also apply to a § 403(b) Plan that   
has a similar failure.   
     
(b) If the employee was not provided the opportunity to elect and make elective deferrals to a §   
403(b) Plan, then, in lieu of determining the missed deferral based on the actual deferral percent-   
age as described in section.05(2)(b), the missed deferral is deemed equal to the greater of 3 per-   
cent of compensation or the maximum deferral percentage for which the Plan Sponsor provides a   
matching contribution rate that is at least as favorable as 100 percent of the elective deferral made   
by the employee.   
     
(7)   Improper exclusion of an eligible employee from a SIMPLE IRA plan subject to the require-    
 ments of § 408(p). (a) Subject to the specific rules in this section.05(7), the correction methods set   
forth in this section.05 for a Qualified Plan also apply to a SIMPLE IRA plan that has a similar   
failure.   
     
(b) If the employee was not provided the opportunity to elect and make elective deferrals to a   
SIMPLE IRA plan, then, in lieu of determining the missed deferral based on the actual deferral   
percentage as described in section.05(2)(b), the missed deferral is deemed to be 3 percent of   
compensation.   
     
(8)   Special safe harbor correction method for failures related to automatic contribution features    
 in a § 401(k) plan or a § 403(b) Plan. (a)   Eligibility to use safe harbor correction method. This   
safe harbor correction method is available for certain Employee Elective Deferral Failures (as   
defined in section.05(10) associated with missed elective deferrals for eligible employees who   
are subject to an automatic contribution feature in a § 401(k) plan or § 403(b) Plan (including   
employees who made affirmative elections in lieu of automatic contributions but whose elections   
were not implemented correctly). If the failure to implement an automatic contribution feature   
for an affected eligible employee or the failure to implement an affirmative election of an eligible   
employee who is otherwise subject to an automatic contribution feature does not extend beyond   
the end of the 91⁄2-month period after the end of the plan year of the failure (which is generally the   
filing deadline of the Form 5500 series return, including automatic extensions), no QNEC for the   
missed elective deferrals is required, provided that the following conditions are satisfied.   
     
(i) Correct deferrals begin no later than the earlier of the first payment of compensation made on   
or after the last day of the 9-1/2-month period after the end of the plan year in which the failure first   
occurred for the affected eligible employee or, if the Plan Sponsor was notified of the failure by   
the affected eligible employee, the first payment of compensation made on or after the end of the   
month after the month of notification;   
     
(ii) Notice of the failure that satisfies the content requirements of section.05(8)(c) is given to the   
     affected eligible employee not later than 45 days after the date on which correct deferrals begin;   
     and   
     
     (iii) If the eligible employee would have been entitled to additional matching contributions had   
     the missed deferrals been made, the Plan Sponsor makes a corrective allocation (adjusted for   
     Earnings) on behalf of the employee equal to the matching contributions that would have been   
     required under the terms of the plan as if the missed deferrals had been contributed to the plan in   
     accordance with timing requirements under SCP for significant operational failures (described in   
     section 9.02 of this revenue procedure).   
     
     (b)   Calculation of Earnings for certain failures to implement automatic contribution features.   
     This correction method provides an alternative safe harbor method for calculating Earnings for   
     Employee Elective Deferral Failures under § 401(k) plans or § 403(b) Plans that have automatic   
     contribution features and that are corrected in accordance with the procedures in this section.05(8). If an affected eligible employee has not affirmatively designated an investment alternative,   
     missed Earnings may be calculated based on the plan's default investment alternative, provided   
     that, with respect to a correction made in accordance with the procedures in this section.05(8),   
     any cumulative losses reflected in the Earnings calculation will not result in a reduction in the   
     required corrective contributions relating to any matching contributions. The Plan Sponsor may   
     also use the Earnings adjustment methods set forth in Appendix B, section 3.   
     
     (c)   Content of notice requirement. The notice required under section.05(8)(a)(ii) must include the   
     following information:   
     
     (i) General information relating to the failure, such as the percentage of eligible compensation that   
     should have been deferred and the approximate date that the compensation should have begun   
     to be deferred. The general information need not include a statement of the dollar amounts that   
     should have been deferred.   
     
     (ii) A statement that appropriate amounts have begun to be deducted from compensation and con-   
     tributed to the plan (or that appropriate deductions and contributions will begin shortly).   
     
     (iii) A statement that corrective allocations relating to missed matching contributions have been   
     made (or that corrective allocations will be made). Information relating to the date and the amount   
     of corrective allocations need not be provided.   
     
     (iv) An explanation that the affected participant may increase his or her deferral percentage in   
     order to make up for the missed deferral opportunity, subject to applicable limits under § 402(g).   
     
     (v) The name of the plan and plan contact information (including name, street address, email ad-   
     dress, and telephone number of a plan contact).   
     
     (d)   Sunset of safe harbor correction method. The safe harbor correction method described in sec-   
     tion.05(8) is available for plans only with respect to failures that begin on or before December   
     31, 2023.   
     
     (9)   Safe harbor correction methods for Employee Elective Deferral Failures in § 401(k) plans or    
      § 403(b) Plans. (a)   Safe harbor correction method for Employee Elective Deferral Failures that    
      do not exceed three months. Under this safe harbor correction method, an Employee Elective De-   
     ferral Failure (as defined in section.05(10)) can be corrected without a QNEC for missed elective.   
     deferrals if the following conditions are satisfied.   
     
     (i) Correct deferrals begin no later than the earlier of the first payment of compensation made on   
     or after the last day of the three-month period that begins when the failure first occurred for the   
     affected eligible employee or, if the Plan Sponsor was notified of the failure by the affected eligi-   
     ble employee, the first payment of compensation made on or after the end of the month after the   
month of notification;   
     
(ii) Notice of the failure that satisfies the content requirements of section.05(9)(c) is given to the   
affected eligible employee not later than 45 days after the date on which correct deferrals begin;   
and   
     
(iii) If the eligible employee would have been entitled to additional matching contributions had the   
missed deferrals been made, the Plan Sponsor makes a corrective allocation (adjusted for Earn-   
ings, which may be calculated as described in section.05(8)(b)) on behalf of the employee equal   
to the matching contributions that would have been required under the terms of the plan as if the   
missed deferrals had been contributed to the plan in accordance with the timing requirements un-   
der SCP for significant operational failures (described in section 9.02 of this revenue procedure)   
     
(b)   Safe harbor correction method for Employee Elective Deferral Failures that extend beyond    
 three months but do not extend beyond the SCP correction period for significant failures. This  safe       
harbor correction is for failures that exceed three months (or the conditions for the safe harbor   
correction method described in section.05(8) or.05(9)(a) are not met by the Plan Sponsor). Under   
this safe harbor correction, the required corrective employer contribution is equal to 25 percent   
of the missed deferrals (25 percent QNEC) in lieu of the higher QNEC required in sections.05(2)   
(b) and.05(5)(a). In order to use this safe harbor correction method, the Plan Sponsor must satisfy   
the following conditions:   
     
(i) Correct deferrals begin no later than the earlier of the first payment of compensation made on   
or after the last day of the third plan year following the plan year in which the failure occurred or,   
if the Plan Sponsor was notified of the failure by the affected eligible employee, the first payment   
of compensation made on or after the end of the month after the month of notification.   
     
(ii) Notice of the failure that satisfies the content requirements of section.05(9)(c) is given to an   
affected participant not later than 45 days after the date on which correct deferrals begin; and   
     
(iii) Corrective allocations, as described in section 6.02(4) of this revenue procedure (including   
the 25 percent QNEC and employer contributions to make up for any missed matching contribu-   
tions), are made in accordance with timing requirements under SCP for significant operational   
failures (described in section 9.02 of this revenue procedure), including adjustments for Earnings,   
which may be calculated as described in section.05(8)(b).   
     
(c)   Content of notice requirement. The notice required under sections.05(9)(a)(ii) and.05(9)(b)(ii)   
must include the following information:   
     
(i) General information relating to the failure, such as the percentage of eligible compensation that   
should have been deferred and the approximate date that the compensation should have begun   
to be deferred. The general information need not include a statement of the dollar amounts that   
should have been deferred.   
     
(ii) A statement that appropriate amounts have begun to be deducted from compensation and con-   
tributed to the plan (or that appropriate deductions and contributions will begin shortly).   
     
(iii) A statement that corrective allocations have been made (or that corrective allocations will   
be made). Information relating to the date and the amount of corrective allocations need not be   
provided.   
     
(iv) An explanation that the affected participant may increase his or her deferral percentage in   
order to make up for the missed deferral opportunity, subject to applicable limits under § 402(g).   
     
(v) The name of the plan and plan contact information (including name, street address, email ad-   
dress, and telephone number of a plan contact).   
     
(10)   Employee Elective Deferral Failure. For purposes of sections.05(8) and.05(9), an "Employ-   
ee Elective Deferral Failure" is a failure to implement elective deferrals correctly in a § 401(k)   
plan or § 403(b) Plan, including elective deferrals pursuant to an affirmative election or pursu -   
ant to an automatic contribution feature under a § 401(k) plan or § 403(b) Plan, and a failure to   
afford an employee the opportunity to make an affirmative election because the employee was   
improperly excluded from the plan. Automatic contribution features include automatic enrollment   
and automatic escalation features (including automatic escalation features that were affirmatively   
elected)..06 Failure to timely pay the minimum distribution required under § 401(a)(9). In a defined con-   
tribution plan, the permitted correction method is to distribute the required minimum distributions   
(with Earnings from the date of the failure to the date of the distribution). The amount required to   
be distributed for each year in which the initial failure occurred should be determined by divid-   
ing the adjusted account balance on the applicable valuation date by the applicable distribution   
period. For this purpose, adjusted account balance means the actual account balance, determined   
in accordance with §1.401(a)(9)-5, Q&A-3, reduced by the amount of the total missed minimum   
distributions for prior years. In a defined benefit plan, the permitted correction method is to dis-   
tribute the required minimum distributions, plus an interest payment based on the plan's actuarial   
equivalence factors in effect on the date that the distribution should have been made. See section   
6.02(4)(d) of this revenue procedure. If this correction is made at the time the plan is subject to a   
restriction on single-sum payments pursuant to § 436(d), the Plan Sponsor must contribute to the   
plan the applicable amount under section 6.02(4)(e)(ii)(A) of this revenue procedure as part of the   
correction..07 Failure to obtain participant or spousal consent for a distribution subject to the participant   
and spousal consent rules under §§ 401(a)(11), 411(a)(11), and 417. (1) The permitted correction   
method is to give each affected participant a choice between providing informed consent for the   
distribution actually made or receiving a qualified joint and survivor annuity. In the event that   
participant or spousal consent is required but cannot be obtained, the participant must receive a   
qualified joint and survivor annuity based on the monthly amount that would have been provided   
under the plan at his or her retirement date. This annuity may be actuarially reduced to take into   
account distributions already received by the participant. However, the portion of the qualified   
joint and survivor annuity payable to the spouse upon the death of the participant may not be   
actuarially reduced to take into account prior distributions to the participant. Thus, for example,   
if, in accordance with the automatic qualified joint and survivor annuity option under a plan, a   
married participant who retired would have received a qualified joint and survivor annuity of   
$600 per month payable for life with $300 per month payable to the spouse for the spouse's life   
beginning upon the participant's death, but instead received a single-sum distribution equal to the   
actuarial present value of the participant's accrued benefit under the plan, then the $600 monthly   
annuity payable during the participant's lifetime may be actuarially reduced to take the single-sum   
distribution into account. However, the spouse must be entitled to receive an annuity of $300 per   
month payable for life beginning at the participant's death.   
     
(2) An alternative permitted correction method is to give each affected participant a choice be-   
tween (i) providing informed consent for the distribution actually made, (ii) receiving a qualified   
joint and survivor annuity (both (i) and (ii) of this section.07(2) are described in section.07(1)),   
or (iii) a single-sum payment to the participant's spouse equal to the actuarial present value of   
that survivor annuity benefit (calculated using the applicable interest rate and mortality table un-   
der § 417(e)(3)). For example, assuming the actuarial present value of a $300 per month annuity   
payable to the spouse for the spouse's life beginning upon the participant's death was $7,837   
(calculated using the applicable interest rate and applicable mortality table under § 417(e)(3)), the   
single-sum payment to the spouse under clause (iii) of this section.07(2) is equal to $7,837. If the   
single-sum payment is made to the spouse, then the payment is treated in the same manner as a   
distribution under § 402(c)(9) for purposes of rolling over the payment to an IRA or other eligible   
retirement plan. If correction is made at the time the plan is subject to a restriction on single-sum   
payments pursuant to § 436(d), then the alternative permitted correction in this section.07(2) is   
available only if the Plan Sponsor (or other person) contributes to the plan the applicable amount   
under section 6.02(4)(e)(ii)(A) of this revenue procedure as part of the correction..08 Failure to satisfy the § 415 limits in a defined contribution plan. For limitation periods begin-   
ning before January 1, 2009, the permitted correction for failure to limit annual additions (other   
than elective deferrals and after-tax employee contributions) allocated to participants in a defined   
contribution plan as required in § 415 (even if the excess did not result from the allocation of   
forfeitures or from a reasonable error in estimating compensation) is to place the excess annual   
additions into an unallocated account, similar to the suspense account described in §1.415-6(b)(6)   
(iii) (as it appeared in the April 1, 2007 edition of 26 CFR part 1) prior to amendments made by   
the final regulations § 415, to  be used as under an employer contribution, other than elective de-   
ferrals, in the succeeding year(s). While such amounts remain in the unallocated account, the Plan   
Sponsor is not permitted to make additional contributions to the plan. The permitted correction   
for failure to limit annual additions that are elective deferrals or after-tax employee contributions   
(even if the excess did not result from a reasonable error in determining compensation, the amount   
of elective deferrals or after-tax employee contributions that could be made with respect to an   
individual under the § 415 limits) is to distribute the elective deferrals or after-tax employee con-   
tributions using a method similar to that described under §1.415-6(b)(6)(iv) (as it appeared in the   
April 1, 2007 edition of 26 CFR part 1) prior to amendments made by the final regulations under   
§ 415. Elective deferrals and after-tax employee contributions that are matched may be returned   
to the employee, provided that the matching contributions relating to such contributions are for-   
feited (which will also reduce excess annual additions for the affected individuals). The forfeited   
matching contributions are to be placed into an unallocated account to be used as an employer   
contribution, other than elective deferrals, in succeeding periods. For limitation years beginning   
on or after January 1, 2009, the failure to limit annual additions allocated to participants in a de-   
fined contribution plan as required in § 415is corrected in accordance with sections 6.06(2) and   
(4) of this revenue procedure..09 Orphan Plans; orphan contracts and other assets. (1)   Orphan Plans. If (a) a plan has one or   
more failures (whether a Qualification Failure or a § 403(b) Failure) that result from the Plan   
Sponsor having ceased to exist, the Plan Sponsor no longer maintaining the plan, or similar rea-   
sons and (b) the plan is an Orphan Plan, the permitted correction is to terminate the plan and dis-   
tribute plan assets to participants and beneficiaries. This correction must satisfy four conditions.   
First, the correction must comply with conditions, standards, and procedures substantially similar   
to those set forth in section 2578.1 of the Department of Labor regulations (relating to abandoned   
plans). Second, the Eligible Party must have reasonably determined whether, and to what extent,   
the survivor annuity requirements of §§ 401(a)(11) and 417 apply to any benefit payable under   
the plan and take reasonable steps to comply with those requirements (if applicable). Third, each   
participant and beneficiary must have been provided a nonforfeitable right to his or her accrued   
benefits as of the date of deemed termination under the Department of Labor Regulations, subject   
to income, expenses, gains, and losses between that date and the date of distribution. Fourth,   
participants and beneficiaries must receive notification of their rights under § 402(f). In addition,   
notwithstanding correction under this revenue procedure, the IRS reserves the right to pursue ap-   
propriate remedies under the Code against any party who is responsible for the plan, such as the   
Plan Sponsor, plan administrator, or owner of the business, even in its capacity as a participant or   
beneficiary under the plan. However, with respect to the first through third condition above, no-   
tice need not be furnished to the Department of Labor, and notices furnished to the Plan Sponsor,   
participants, or beneficiaries need not indicate that the procedures followed or notices furnished   
actually comply with, or are required under, Department of Labor regulations.   
     
(2)   Section 403(b) Failures for orphan contracts or other assets. (a)   Former employees or ben-    
 eficiaries. In any case in which a § 403(b) Failure results from the Plan Sponsor having ceased   
involvement with respect to specific assets (including an insurance annuity contract) held under   
a defined contribution plan on behalf of a participant who is a former employee or on behalf of a   
beneficiary, a permitted correction is to distribute those plan assets to the participant or beneficia-   
ry. Compliance with the distribution rules of section 2578.1(d)(2)(vii) of the Department of Labor   
regulations satisfies this paragraph.09(2).   
     
(b)   Failures Relating to Information Sharing Agreements. In any case in which a § 403(b) Failure   
results from a contract issued in an exchange not being part of a § 403(b) Plan due to the fail-   
ure to have an information sharing agreement pursuant to §1.403(b)-10(b)(2)(i)(C), a permitted   
correction is for the assets held under the contract to be transferred to another vendor to which   
contributions are being made under the plan in order to become a contract which is held under the   
plan without regard to the special rules in §1.403(b)-10(b).   
     
APPENDIX B   
CORRECTION METHODS AND EXAMPLES; EARNINGS ADJUSTMENT METHODS AND EXAMPLES   
     
SECTION 1. PURPOSE, ASSUMPTIONS FOR EXAMPLES AND SECTION REFERENCES.01 Purpose. (1) This Appendix B sets forth correction methods relating to Operational Failures   
under Qualified Plans. This Appendix B also sets forth Earnings adjustment methods. In each   
case, the method described corrects the Operational Failures identified in the headings below. Cor-   
rective allocations and distributions should reflect Earnings and actuarial adjustments in accor-   
dance with section 6.02(4) of this revenue procedure. The correction methods in this Appendix B   
are acceptable to correct Qualification Failures under VCP, and to correct Qualification Failures   
under SCP that occurred notwithstanding that the plan has established practices and procedures   
reasonably designed to promote and facilitate overall compliance with the Code, as provided in   
section 4.04 of this revenue procedure.   
     
(2) To the extent a failure listed in this Appendix B could occur under a § 403(b) Plan, SEP, or   
SIMPLE IRA Plan, the correction method listed for such failure may similarly be used to correct   
the failure..02 Assumptions for Examples. Unless otherwise specified, for ease of presentation, the examples   
assume that:   
     
(1) the plan year and the § 415 limitation year are the calendar year;   
     
(2) the Plan Sponsor maintains a single plan intended to satisfy § 401(a) and has never maintained   
any other plan;   
     
(3) in a defined contribution plan, the plan provides that forfeitures are used to reduce future em-   
ployer contributions;   
     
(4) the Qualification Failures are Operational Failures and the eligibility and other requirements   
for SCP, VCP, or Audit CAP, whichever applies, are satisfied, and   
     
(5) there are no Qualification Failures other than the described Operational Failures, and if cor-   
rective action would result in any additional Qualification Failure, appropriate corrective action is   
taken for that additional Qualification Failure in accordance with EPCRS..03 Designated Roth contributions. The examples in this Appendix B generally do not identify   
whether the plan offers designated Roth contributions. The results in the examples, including   
corrective contributions, would be the same whether or not the plan offered designated Roth   
contributions..04 Section references. References in Appendix B to section 2 and section 3 are references to   
section 2 and 3 in this Appendix B.   
     
SECTION 2. CORRECTION METHODS AND EXAMPLES.01 ADP/ACP Failures. (1)   Correction Methods. (a)   Appendix A Correction Method. Appendix A,   
section.03, sets forth a correction method for a failure to satisfy the ADP, ACP, or, for plan years   
beginning on or before December 31, 2001, multiple use test set forth in §§ 401(k)(3), 401(m)(2),   
and 401(m)(9), respectively.   
     
(b)   One-to-One Correction Method. (i)   General. In addition to the correction method in Appen-   
dix A, a failure to satisfy the ADP test or ACP test may be corrected by using the one-to-one   
correction method set forth in this section 2.01(1)(b). Under the one-to-one correction method,   
an excess contribution amount is determined and assigned to highly compensated employees as   
provided in paragraph (1)(b)(ii) below. That excess contribution amount (adjusted for Earnings) is   
either distributed to the highly compensated employees or forfeited from the highly compensated   
employees' accounts as provided in paragraph (1)(b)(iii) below. That same dollar amount (that   
is, the excess contribution amount, adjusted for Earnings) is contributed to the plan and allocated   
to nonhighly compensated employees as provided in paragraph (1)(b)(iv) below. Under this cor-   
rection method, a plan may not be treated as two separate plans, one covering otherwise exclud-   
able employees and the other covering all other employees (as permitted in §1.410(b)- 6(b)(3)).   
Likewise, restructuring the plan into component plans is not permitted. This correction method   
may also be used to correct a failure to satisfy the multiple use test for plan years beginning on or   
before December 31, 2001.   
     
(ii)   Determination of the Excess Contribution Amount. The excess contribution amount for the   
year is equal to the excess of (A) the sum of the excess contributions (as defined in § 401(k)(8)   
(B)), the excess aggregate contributions (as defined in § 401(m)(6)(B)), and for plan years begin-   
ning on or before December 31, 2001 the amount treated as excess contributions or excess aggre-   
gate contributions under the multiple use test for the year, as assigned to each highly compensated   
employee in accordance with §§ 401(k)(8)(C) and 401(m)(6)(C), over (B) previous corrections   
that complied with §§ 401(k)(8) and 401(m)(6), and, for plan years beginning on or before De-   
cember 31, 2001, the multiple use test.   
     
(iii)   Distributions and Forfeitures of the Excess Contribution Amount. (A) The portion of the ex-   
cess contribution amount assigned to a particular highly compensated employee under paragraph   
(1)(b)(ii) is adjusted for Earnings from the end of the plan year of the year of the failure through   
the date of correction. The amount assigned to a particular highly compensated employee, as ad-   
justed, is distributed or, to the extent the amount was forfeitable as of the close of the plan year of   
the failure, is forfeited. If the amount is forfeited, it is used in accordance with the plan provisions   
relating to forfeitures that were in effect for the year of the failure. If the amount so assigned to a   
particular highly compensated employee has been previously distributed, the amount is an Excess   
Amount within the meaning of section 5.01(3) of this revenue procedure. Thus, pursuant to sec-   
tion 6.06 of this revenue procedure, the Plan Sponsor must notify the employee that the Excess   
Amount is not eligible for favorable tax treatment accorded to distributions from qualified plans   
(and, specifically, is not eligible for tax-free rollover).   
     
(B) If any matching contributions (adjusted for Earnings) are forfeited in accordance with § 411(a)   
(3)(G), the forfeited amount is used in accordance with the plan provisions relating to forfeitures   
that were in effect for the year of the failure.   
     
(C) If a payment was made to an employee and that payment is a forfeitable match described in   
either paragraph (1)(b)(iii)(A) or (B), then it is an Overpayment defined in section 5.01(3)(c) of   
this revenue procedure that must be corrected (see sections 2.04 and 2.05 below).   
     
(iv)   Contribution and Allocation of Equivalent Amount. (A) The Plan Sponsor makes a contribu-   
tion to the plan that is equal to the aggregate amounts distributed and forfeited under paragraph   
(1)(b)(iii)(A) (that is, the excess contribution amount adjusted for Earnings, as provided in para-   
graph (1)(b)(iii)(A), which does not include any matching contributions forfeited in accordance   
with § 411(a)(3)(G) as provided in paragraph (1)(b)(iii)(B)). The contribution must be a QNEC as   
defined in §1.401(k)-6.   
     
(B)(1) This paragraph (1)(b)(iv)(B)(1) applies to a plan that uses the current year testing method   
described in §§1.401(k)-2(a)(2), 1.401(m)-2(a)(2), and, for periods prior to the effective date of   
those regulations, Notice 98-1, 1998-1 C.B. 327. The contribution made under paragraph (1)(b)   
(iv)(A) is allocated to the account balances of those individuals who were either (I) the eligible   
employees for the year of the failure who were nonhighly compensated employees for that year or   
(II) the eligible employees for the year of the failure who were nonhighly compensated employees   
for that year and who also are nonhighly compensated employees for the year of correction. Al-   
ternatively, the contribution is allocated to account balances of eligible employees described in (I)   
or (II) of the preceding sentence, except that the allocation is made only to the account balances   
of those employees who are employees on a date during the year of the correction that is no later   
than the date of correction. Regardless of which of these four options (described in the two pre-   
ceding sentences) the Plan Sponsor selects, eligible employees must receive a uniform allocation   
(as a percentage of compensation) of the contribution. (See Examples 1 and 2.) Under the one-   
to-one correction method, the amount allocated to the account balance of an employee (that is,   
the employee's share of the total amount contributed under paragraph (1)(b)(iv)(A)) is not further   
adjusted for Earnings and is treated as an annual addition under § 415 for the year of the failure   
for the employee for whom it is allocated.   
     
(2) This paragraph (1)(b)(iv)(B)(2) applies to a plan that uses the prior year testing method de-   
scribed in §§1.401(k)-2(a)(2) and 1.401(m)-2(a)(2) and, for periods prior to the effective date of   
those regulations, Notice 98-1. Paragraph (1)(b)(iv)(B)(1) is applied by substituting "the year   
prior to the year of the failure" for "the year of the failure."   
     
(2)   Examples.   
     
 Example 1:   
     
Employer A maintains a profit-sharing plan with a cash or deferred arrangement that is intended to satisfy 401(k) using   
the current year testing method. The plan does not provide for matching contributions or after-tax employee contributions.   
In 2007, it was discovered that the ADP test for 2005 was not performed correctly. When the ADP test was performed cor-   
rectly, the test was not satisfied for 2005. For 2005, the ADP for highly compensated employees was 9% and the ADP for   
nonhighly compensated employees was 4%. Accordingly, the ADP for highly compensated employees exceeded the ADP   
for nonhighly compensated employees by more than two percentage points (in violation of § 401(k)(3)). There were two   
highly compensated employees eligible under the § 401(k) plan during 2005, Employee P and Employee Q. Employee P   
made elective deferrals of $10,000, which is equal to 10% of Employee P's compensation of $100,000 for 2005. Employee   
Q made elective deferrals of $9,500, which is equal to 8% of Employee Q's compensation of $118,750 for 2005.   
     
 Correction:   
     
On June 30, 2007, Employer A uses the one-to-one correction method to correct the failure to satisfy the ADP test for   
2005. Accordingly, Employer A calculates the dollar amount of the excess contributions for the two highly compensated   
employees in the manner described in § 401(k)(8)(B). The amount of the excess contribution for Employee P is $4,000   
(4% of $100,000) and the amount of the excess contribution for Employee Q is $2,375 (2% of $118,750), or a total of   
$6,375. In accordance with § 401(k)(8)(C), $6,375, the excess contribution amount, is assigned $3,437.50 to Employee P   
and $2,937.50 to Employee Q. It is determined that the Earnings on the assigned amounts through June 30, 2007 are $687   
and $587 for Employees P and Q, respectively. The assigned amounts and the Earnings are distributed to Employees P and   
Q. Therefore, Employee P receives $4,124.50 ($3,437.50 + $687) and Employee Q receives $3,524.50 ($2,937.50 + $587).   
In addition, on the same date, Employer A makes a corrective contribution to the § 401(k) plan equal to $7,649 (the sum   
of the $4,124.50 distributed to Employee P and the $3,524.50 distributed to Employee Q). The corrective contribution is   
allocated to the account balances of eligible nonhighly compensated employees for 2005, pro rata based on their compen-   
sation for 2005 (subject to § 415 for 2005).   
     
 Example 2:   
     
The facts are the same as in Example 1, except that for 2005 the plan also provides for (1) after-tax employee contribu-   
tions and (2) matching contributions equal to 50% of the sum of an employee's elective deferrals and after-tax employee   
contributions that do not exceed 10% of the employee's compensation. The plan provides that matching contributions are   
subject to the plan's 20% per year of service vesting schedule and that matching contributions are forfeited and used to   
reduce employer contributions if associated elective deferrals or after-tax employee contributions are distributed to correct   
an ADP or ACP test failure. For 2005, nonhighly compensated employees made after-tax employee contributions and no   
highly compensated employee made any after-tax employee contributions. Employee P received a matching contribution   
of $5,000 (50% of $10,000) and Employee Q received a matching contribution of $4,750 (50% of $9,500). Employees   
P and Q were 100% vested in 2005. It was determined that the plan satisfied the requirements of the ACP test for 2005.   
     
 Correction:   
     
The same corrective actions are taken as in Example 1. In addition, in accordance with the plan's terms, corrective action is   
taken to forfeit Employee P's and Employee Q's matching contributions associated with their distributed excess contribu-   
tions. Employee P's distributed excess contributions and associated matching contributions are $3,437.50 and $1,718.75,   
respectively. Employee Q's distributed excess contributions and associated matching contributions are $2,937.50 and   
$1,468.75, respectively. Thus, $1,718.75 is forfeited from Employee P's account and $1,468.75 is forfeited from Employ-   
ee Q's account. In addition, the Earnings on the forfeited amounts are also forfeited. It is determined that the respective   
Earnings on the forfeited amount for Employee P is $250 and for Employee Q is $220. The total amount of the forfeitures   
of $3,657.50 (Employee P's $1,718.75 + $250 and Employee Q's $1,468.75 + $220) is used to reduce contributions for   
2007 and subsequent years..02 Exclusion of Otherwise Eligible Employees. (1)   Exclusion of Eligible Employees in a § 401(k)    
 or (m) Plan. (a)   Correction Method. (i)   Appendix A Correction Method for Full Year Exclusion.   
Appendix A, section.05(2), sets forth the correction method for the exclusion of an eligible em-   
ployee from electing and making elective deferrals (other than designated Roth contributions) and   
after-tax employee contributions to a plan that provides benefits that are subject to the require-   
ments of § 401(k) or 401(m) for one or more full plan years. (See Example 3.) Appendix A, sec-   
tion.05(2), also specifies the method for determining missed elective deferrals and the corrective   
contributions for employees who were improperly excluded from electing and making elective   
deferrals to a safe harbor § 401(k) plan for one or more full plan years. (See Examples 8, 9, and   
10.) Appendix A, section.05(3), sets forth the correction method for the exclusion of an eligible   
employee from electing and making elective deferrals in a plan that (i) is subject to § 401(k) and   
(ii) provides employees with the opportunity to make designated Roth contributions. Appendix A,   
section.05(4), sets forth the correction method for the situation where an eligible employee was   
permitted to make an elective deferral, but was not provided with the opportunity to make catch-   
up contributions under the terms of the plan and § 414(v), and correction is being made by making   
a QNEC on behalf of the excluded employee. (See Example 11.) Appendix A, section.05(5), sets   
forth the correction method for the failure by a plan to implement an employee's election with   
respect to elective deferrals (including designated Roth contributions) or after-tax employee con-   
tributions. (See Example 12.) In section 2.02(1)(a)(ii) below, the correction methods for (I) the ex-   
clusion of an eligible employee from all contributions (including designated Roth contributions)   
under a § 401(k) or (m) plan for a full year, as described in Appendix A, sections.05(2) and.05(3),   
(II) the exclusion of an eligible employee who was permitted to make elective deferrals, but was   
not permitted to make catch-up contributions for a full plan year as described in Appendix A, sec-   
tion.05(4), and (III) the exclusion of an eligible employee on account of the failure to implement   
an employee's election to make elective deferrals or after-tax employee contributions to the plan   
as described in Appendix A, section.05(5), are expanded to include correction for the exclusion   
from these contributions (including designated Roth contributions) under a § 401(k) or (m) plan   
for a partial plan year. This correction for a partial year exclusion may be used in conjunction with   
the correction for a full year exclusion.   
     
(ii)   Expansion of Correction Method to Partial Year Exclusion. (A)   In General. The correction   
method in Appendix A, section.05, is expanded to cover an employee who was improperly ex-   
cluded from electing and making elective deferrals (including designated Roth contributions) or   
after-tax employee contributions for a portion of a plan year or from receiving matching contribu-   
tions (on either elective deferrals or after-tax employee contributions) for a portion of a plan year.   
In such a case, a permitted correction method for the failure is for the Plan Sponsor to satisfy this   
section 2.02(1)(a)(ii). The Plan Sponsor makes a QNEC on behalf of the excluded employee. The   
method and examples described to correct the failure to include otherwise eligible employees do   
not apply until after correction of other qualification failures. Thus, for example, in the case of   
a § 401(k) plan that does not apply the safe harbor contribution requirements of § 401(k)(12) or   
401(k)(13), the correction for improperly excluding an employee from making elective deferrals,   
as described in the narrative and the examples in this section cannot be used until after correction   
of the ADP test failure. (See Appendix A, section.05(2)(g).)   
     
(B)   Elective Deferral Failures. (1) The appropriate QNEC for the failure to allow an employee   
to elect and make elective deferrals (including designated Roth contributions) for a portion of   
the plan year is equal to the missed deferral opportunity, which is an amount equal to 50 percent   
of the employee's missed deferral. The employee's missed deferral is determined by multiplying   
the ADP of the employee's group (either highly or nonhighly compensated), determined prior to   
correction under this section 2.02(1)(a)(ii), by the employee's plan compensation for the portion   
of the year during which the employee was improperly excluded. In a safe harbor § 401(k) plan,   
the employee's missed deferral is determined by multiplying 3 percent (or, if greater, whatever   
percentage of the participant's compensation which, if contributed as an elective deferral, would   
have been matched at a rate of 100 percent or more) by the employee's plan compensation for the   
portion of the year during which the employee was improperly excluded. The missed deferral for   
the portion of the plan year during which the employee was improperly excluded from being eli-   
gible to make elective deferrals is reduced to the extent that (i) the sum of the missed deferral (as   
determined in the preceding two sentences of this paragraph) and any elective deferrals actually   
made by the employee for that year would exceed (ii) the maximum elective deferrals permitted   
under the plan for the employee for that plan year (including the § 402(g) limit). The corrective   
contribution is adjusted for Earnings. For purposes of correcting other failures under this revenue   
procedure (including determination of any required matching contribution) after correction has   
occurred under this section 2.02(1)(a)(ii)(B), the employee is treated as having made pre-tax elec-   
tive deferrals equal to the employee's missed deferral for the portion of the year during which the   
employee was improperly excluded. (See Examples 4 and 5.)   
     
(2) The appropriate corrective contribution for the plan's failure to implement an employee's   
election with respect to elective deferrals is equal to the missed deferral opportunity, which is   
an amount equal to 50 percent of the employee's missed deferral. Corrective contributions are   
adjusted for Earnings. The missed deferral is determined by multiplying the employee's deferral   
percentage by the employee's plan compensation for the portion of the year during which the   
employee was improperly excluded. If the employee elected a fixed dollar amount that can be   
attributed to the period of exclusion, then the flat dollar amount for the period of exclusion may be   
used for this purpose. If the employee elected a fixed dollar amount to be deferred for the entire   
plan year, then that dollar amount is multiplied by a fraction. The fraction is equal to the number   
of months, including partial months where applicable, during which the eligible employee was   
excluded from making elective deferral contributions divided by 12. The missed deferral for the   
portion of the plan year during which the eligible employee was improperly excluded from mak-   
ing elective deferrals is reduced to the extent that (i) the sum of the missed deferral (as determined   
in the preceding three sentences) and any elective deferrals actually made by the employee for that   
year would exceed (ii) the maximum elective deferrals permitted under the plan for the employee   
for that plan year (including the § 402(g) limit). The corrective contribution is adjusted for Earn-   
ings. The requirements relating to the passage of the ADP test before this correction method can   
be used, as described in Appendix A, section.05(5)(d), still apply.   
     
(C)   After-Tax Employee Contribution Failures. (1) The appropriate corrective contribution for the   
failure to allow employees to elect and make after-tax employee contributions for a portion of the   
plan year is equal to the missed after-tax employee contributions opportunity, which is an amount   
equal to 40 percent of the employee's missed after-tax employee contributions. The employee's   
missed after-tax employee contributions are determined by multiplying the ACP of the employ-   
ee's group (either highly or nonhighly compensated), determined prior to correction under this   
section 2.02(1)(a)(ii)(C), by the employee's plan compensation for the portion of the year during   
which the employee was improperly excluded. If the ACP consists of both matching and after-tax   
employee contributions, then, for purposes of the preceding sentence, in lieu of basing the missed   
after-tax employee contributions on the ACP for the employee's group (either highly compensated   
or nonhighly compensated), the Plan Sponsor is permitted to determine separately the portions of   
the ACP that are attributable to matching contributions and after-tax employee contributions and   
base the missed after-tax employee contributions on the portion of the ACP that is attributable to   
after-tax employee contributions. The missed after-tax employee contribution is reduced to the ex-   
tent that (i) the sum of that contribution and the actual total after-tax employee contributions made   
by the employee for the plan year would exceed (ii) the sum of the maximum after-tax employee   
contributions permitted under the plan for the employee for the plan year. The corrective contribu-   
tion is adjusted for Earnings. The requirements relating to the passage of the ACP test before this   
correction method can be used, as described in Appendix A, section.05(2)(g), still apply.   
     
(2) The appropriate corrective contribution for the plan's failure to implement an employee's   
election with respect to after-tax employee contributions for a portion of the plan year is equal to   
the missed after-tax employee contributions opportunity, which is an amount equal to 40 percent   
of the employee's missed after-tax employee contributions. Corrective contributions are adjusted   
for Earnings. The missed after-tax employee contribution is determined by multiplying the em-   
ployee's elected after-tax employee contribution percentage by the employee's plan compensation   
for the portion of the year during which the employee was improperly excluded. If the employee   
elected a flat dollar amount that can be attributed to the period of exclusion, then the flat dollar   
amount for the period of exclusion may be used for this purpose. If the employee elected a flat   
dollar amount to be contributed for the entire plan year, then that dollar amount is multiplied by   
a fraction. The fraction is equal to the number of months, including partial months where appli-   
cable, during which the eligible employee was excluded from making after-tax employee contri-   
butions divided by 12. The missed after-tax employee contribution is reduced to the extent that   
(i) the sum of that contribution and the actual total after-tax employee contributions made by the   
employee for the plan year would exceed (ii) the sum of the maximum after-tax employee contri-   
butions permitted under the plan for the employee for the plan year. The requirements relating to   
the passage of the ACP test before this correction method can be used, as described in Appendix   
A, section.05(5)(d), still apply.   
     
(D)   Matching Contribution Failures. (1) The appropriate corrective contribution for the failure to   
make matching contributions for an employee because the employee was precluded from making   
elective deferrals (including designated Roth contributions) or after-tax employee contributions   
for a portion of the plan year is equal to the matching contribution that would have been made for   
the employee if (1) the employee's elective deferrals for that portion of the plan year had equaled   
the employee's missed deferrals (determined under section 2.02(1)(a)(i)(B)) or (2) the employee's   
after-tax contribution for that portion of the plan year had equaled the employee's missed after-tax   
employee contribution (determined under section 2.02(1)(a)(ii)(C)). This matching contribution   
is reduced to the extent that (i) the sum of this contribution and other matching contributions ac-   
tually made on behalf of the employee for the plan year would exceed (ii) the maximum matching   
contribution permitted if the employee had made the maximum matchable contributions permit-   
ted under the plan for the plan year. The corrective contribution is adjusted for Earnings. The   
requirements relating to the passage of the ACP test before this correction method can be used, as   
described in Appendix A, section.05(2)(g), still apply.   
     
(2) The appropriate corrective contribution for the failure to make matching contributions for an   
employee because of the failure by the plan to implement an employee's election with respect to   
elective deferrals (including designated Roth contributions) or, where applicable, after-tax em-   
ployee contributions for a portion of the plan year is equal to the matching contribution that would   
have been made for the employee if the employee made the elective deferral as determined under   
section 2.02(1)(a)(ii)(B)(2), or where applicable, the after-tax employee contribution determined   
under section 2.02(1)(a)(ii)(C)(2). This matching contribution is reduced to the extent that (i)   
the sum of this contribution and other matching contributions actually made on behalf of the   
employee for the plan year would exceed (ii) the maximum matching contribution permitted if   
the employee had made the maximum matchable contributions permitted under the plan for the   
plan year. The corrective contribution is adjusted for Earnings. The requirements relating to the   
passage of the ACP test before this correction method can be used, as described in Appendix A,   
section.05(5)(d), still apply.   
     
(E)   Use of Prorated Compensation. For purposes of this paragraph (1)(a)(ii), for administrative   
convenience, in lieu of using the employee's actual plan compensation for the portion of the year   
during which the employee was improperly excluded, a pro rata portion of the employee's plan   
compensation that would have been taken into account for the plan year, if the employee had not   
been improperly excluded, may be used.   
     
(F)   Special Rule for Brief Exclusion from Elective Deferrals and After-Tax Employee Contribu-    
 tions. An Plan Sponsor is not required to make a corrective contribution with respect to elective   
deferrals (including designated Roth contributions) or after-tax employee contributions, as pro-   
vided in sections 2.02(1)(a)(ii)(B) and (C), but is required to make a corrective contribution with   
respect to any matching contributions, as provided in section 2.02(1)(a)(ii)(D), for an employee   
for a plan year if the employee has been provided the opportunity to make elective deferrals or   
after-tax employee contributions under the plan for a period of at least the last 9 months in that   
plan year and during that period the employee had the opportunity to make elective deferrals or   
after-tax employee contributions in an amount not less than the maximum amount that would have   
been permitted if no failure had occurred. (See Examples 6 and 7.)   
     
(b)   Examples.   
     
 Example 3:   
     
Employer B maintains a § 401(k) plan. The plan provides for matching contributions for eligible employees equal to 100%   
of elective deferrals that do not exceed 3% of an employee's compensation. The plan allows employees to make after-tax   
employee contributions up to a maximum of the lesser of 2% of compensation or $1,000. The after-tax employee contribu-   
tions are not matched. The plan provides that employees who complete one year of service are eligible to participate in the   
plan on the next designated entry date. The entry dates are January 1, and July 1. In 2007, it is discovered that Employee   
V, an NHCE with compensation of $30,000, was excluded from the plan for the 2006 plan year even though she satisfied   
the plan's eligibility requirements as of January 1, 2006.   
     
For the 2006 plan year, the relevant employee and contribution information is as follows:   
     
           
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
 HCEs:   
     
     
     
ADP - 5.5%   
     
     
     
ACP - 3.33%   
     
     
     
ACP attributable to matching contributions - 3%   
     
ACP attributable to after-tax employee contributions - 0.33%   
     
     
     
     
 NHCEs:   
     
     
     
     
     
     
     
ADP - 8%   
     
     
     
ACP -2.63%   
     
     
     
ACP attributable to matching contributions - 2%   
     
ACP attributable to after-tax employee contributions - 0.63%   
     
 Correction:   
     
Employer B uses the correction method for a full year exclusion, described in Appendix A, section.05(2), to correct the   
failure to include Employee V in the plan for the full plan year beginning January 1, 2006. Employer B calculates the   
corrective QNEC to be made on behalf of Employee V as follows:   
     
Elective deferrals: Employee V was eligible to elect and make elective deferrals in 2006, but was not provided with the   
opportunity to do so. Thus, Employer B must make a QNEC to the plan on behalf of Employee V equal to the missed   
deferral opportunity for Employee V, which is 50% of Employee V's missed deferral. The QNEC is adjusted for Earnings.   
The missed deferral for Employee V is determined by using the ADP for NHCEs for 2006 and multiplying that percentage   
by Employee V's compensation for 2006. Accordingly, the missed deferral for Employee V on account of the employee's   
improper exclusion from the plan is $2,400 (8% x $30,000). The missed deferral opportunity is $1,200 (that is, 50% x   
$2,400). Thus, the required corrective contribution for the failure to provide Employee V with the opportunity to make   
elective deferrals to the plan is $1,200, adjusted for Earnings. The corrective contribution is made to a pre-tax QNEC   
account for Employee V (not to a designated Roth contributions account even if the plan offers designated Roth contribu-   
tions, as provided in Appendix A, section.05(3)).   
     
Matching contributions: Employee V should have been eligible for, but did not receive, an allocation of employer match-   
ing contributions because Employee V was not provided the opportunity to make elective deferrals in 2006. Thus, Em-   
ployer B must make a corrective employer nonelective contribution to the plan on behalf of Employee V that is equal to   
the matching contribution Employee V would have received had the missed deferral been made. The corrective employer   
nonelective contribution is adjusted for Earnings. Under the terms of the plan, if Employee V had made an elective deferral   
of $2,400 or 8% of compensation ($30,000), the employee would have been entitled to a matching contribution equal to   
100% of the first 3% of Employee V's compensation ($30,000) or $900. Accordingly, the contribution required to replace   
the missed employer matching contribution is $900, adjusted for Earnings.   
     
After-tax employee contributions: Employee V was eligible to, but was not provided with the opportunity to, elect and   
make after-tax employee contributions in 2006. Employer B must make a QNEC to the plan equal to the missed opportuni-   
ty for making after-tax employee contributions for Employee V, which is 40% of Employee V's missed after-tax employee   
contribution. The QNEC is adjusted for Earnings. The missed after-tax employee contribution for Employee V is estimated   
by using the ACP for NHCEs (to the extent that the ACP is attributable to after-tax employee contributions) for 2006 and   
multiplying that percentage by Employee V's compensation for 2006. Accordingly, the missed after-tax employee contri-   
bution for Employee V, on account of the employee's improper exclusion from the plan is $189 (0.63% x $30,000). The   
missed opportunity to make after-tax employee contributions to the plan is $76 (40% x $189). Thus, the required corrective   
contribution for the failure to provide Employee V with the opportunity to make the $189 after-tax employee contribution   
to the plan is $76, adjusted for Earnings.   
     
The total required corrective contribution, before adjustments for Earnings, on behalf of Employee V is $2,176 ($1,200   
for the missed deferral opportunity plus $900 for the missed matching contribution plus $76 for the missed opportunity to   
make after-tax employee contributions). The required corrective contribution is further adjusted for Earnings. The correc-   
tive contribution for the missed deferral opportunity ($1,200), the missed opportunity for after-tax employee contributions   
($76), and related Earnings must be made in the form of a QNEC.   
     
 Example 4:   
     
Employer C maintains a § 401(k) plan. The plan provides for matching contributions for each payroll period that are equal   
to 100% of an employee's elective deferrals that do not exceed 2% of the eligible employee's plan compensation during the   
payroll period. The plan provides for after-tax employee contributions. The after-tax employee contribution cannot exceed   
$1,000 for the plan year. The plan provides that employees who complete one year of service are eligible to participate in   
the plan on the next January 1 or July 1 entry date. Employee X, a nonhighly compensated employee, who met the eligi-   
bility requirements and should have entered the plan on January 1, 2006, was not offered the opportunity to elect to have   
elective contributions made on his behalf to the plan. In August of 2006, the error was discovered and Employer C offered   
Employee X the opportunity to make elective deferrals and after-tax employee contributions as of September 1, 2006.   
Employee X made elective deferrals equal to 4% of the employee's plan compensation for each payroll period from Sep-   
tember 1, 2006 through December 31, 2006 (resulting in elective deferrals of $400). Employee X's plan compensation for   
2006 was $36,000 ($26,000 for the first eight months and $10,000 for the last four months). Employer C made matching   
contributions equal to $200 on behalf of Employee X, which is 2% of Employee X's plan compensation for each payroll   
period from September 1, 2006 through December 31, 2006 ($10,000). After being allowed to participate in the plan,   
Employee X made $250 of after-tax employee contributions for the 2006 plan year. The ADP for nonhighly compensated   
employees for 2006 was 3% and the ACP for nonhighly compensated employees for 2006 was 2.3%. The ACP attributable   
to matching contributions for nonhighly compensated employees for 2006 was 1.8%. The ACP attributable to employee   
contributions for nonhighly compensated employees for 2006 was 0.5%.   
     
 Correction:   
     
In accordance with section 2.02(1)(a)(ii), Employer C uses the correction method described in Appendix A, section.05, to   
correct for the failure to provide Employee X the opportunity to elect and make elective deferrals and after-tax employee   
contributions, and, as a result, the failure of Employee X to receive matching contributions for a portion of the plan year   
     (January 1, 2006 through August 31, 2006). Thus, Employer C makes a corrective contribution on behalf of Employee X   
     that satisfies the requirements of section 2.02(1)(a)(ii). Employer C elects to utilize the provisions of section 2.02(1)(a)   
     (ii)(E) to determine Employee X's compensation for the portion of the year in which Employee X was not provided the   
     opportunity to make elective deferrals and after-tax employee contributions. Thus, for administrative convenience, in lieu   
     of using actual plan compensation of $26,000 for the period Employee X was excluded, Employee X's annual plan com-   
     pensation is prorated for the 8-month period that the employee was excluded from participating in the plan. The corrective   
     contribution is determined as follows:   
          
     (1)   Corrective contribution for missed deferral: Employee X was eligible to, but was not provided with the opportunity to,   
     elect and make elective deferrals from January 1 through August 31 of 2006. Employer C must make a QNEC to the plan   
     on behalf of Employee X equal to Employee X's missed deferral opportunity for that period, which is 50% of Employee   
     X's missed deferral. The corrective contribution is adjusted for Earnings. Employee X's missed deferral is determined by   
     multiplying the 3% ADP for nonhighly compensated employees by $24,000 (8/12ths of the employee's 2006 compensa-   
     tion of $36,000). Accordingly, the missed deferral is $720. The missed deferral is not reduced because when this amount is   
     added to the amount already deferred, no plan limit (including § 402(g)) was exceeded. Accordingly, the required QNEC   
     is $360 (that is, 50% multiplied by the missed deferral amount of $720). The required QNEC is adjusted for Earnings.   
          
     (2)   Corrective contribution for missed matching contribution: Under the terms of the plan, if Employee X had made an   
     elective deferral of $720 or 3% of compensation for the period of exclusion ($24,000), the employee would have been en-   
     titled to a matching contribution equal to 2% of $24,000 or $480. The missed matching contribution is not reduced because   
     no plan limit is exceeded when this amount is added to the matching contribution already contributed for the 2006 plan   
     year. Accordingly, the required corrective employer contribution is $480. The required corrective employer contribution   
     is adjusted for Earnings.   
          
     (3)   Corrective contribution for missed after-tax employee contribution: Employee X was eligible, but was not provided   
     with the opportunity, to elect and make after-tax employee contributions from January 1 through August 31 of 2006. Em-   
     ployer C must make a QNEC to the plan on behalf of Employee X equal to the missed opportunity to make after-tax em-   
     ployee contributions. The missed opportunity to make after-tax employee contributions is equal to 40% of Employee X's   
     missed after-tax employee contributions. The QNEC is adjusted for Earnings. The missed after-tax employee contribution   
     amount is equal to the 0.5% ACP attributable to employee contributions for nonhighly compensated employees multiplied   
     by $24,000 (8/12ths of the employee's 2006 plan compensation of $36,000). Accordingly, the missed after-tax employee   
     contribution amount is $120. The missed after-tax employee contribution is not reduced because the sum of $120 and   
     the previously made after-tax employee contribution of $250 is less than the overall plan limit of $1,000. Therefore, the   
     required QNEC is $48 (that is, 40% multiplied by the missed after-tax employee contribution of $120). The QNEC is   
     adjusted for Earnings.   
          
     The total required corrective contribution, before adjustments for Earnings, on behalf of Employee X is $888 ($360 for   
     the missed deferral opportunity plus $480 for the missed matching contribution plus $48 for the missed opportunity to   
     make after-tax employee contributions). The corrective contribution for the missed deferral opportunity ($360), the missed   
     opportunity for after-tax employee contributions ($48), and related Earnings must be made in the form of a QNEC.   
          
      Example 5:   
          
     The facts (including the ADP and ACP results) are the same as in Example 4, except that it is now determined that Employ-   
     ee X, after being included in the plan in 2006, made after-tax employee contributions of $950.   
          
      Correction:    
          
     The correction is the same as in Example 4, except that the QNEC required to replace the missed after-tax employee con-   
     tribution is re-calculated to take into account applicable plan limits in accordance with the provisions of section 2.02(1)(a)   
     (ii)(C). The QNEC is determined as follows:   
          
     The missed after-tax employee contribution amount is equal to the 0.5% ACP attributable to after-tax employee contribu-   
     tions for nonhighly compensated employees multiplied by $24,000 (8/12ths of the employee's 2006 plan compensation   
     of $36,000). The missed after-tax employee contribution amount, based on this calculation, is $120. However, the sum   
     of this amount ($120) and the previously made after-tax employee contribution ($950) is $1,070. Because the plan limit   
     for after-tax employee contributions is $1,000, the missed after-tax employee contribution needs to be reduced by $70, to   
     ensure that the total after-tax employee contributions comply with the plan limit. Accordingly, the missed after-tax em-   
     ployee contribution is $50 ($120 minus $70) and the required QNEC is $20 (that is, 40% multiplied by the missed after-tax   
     employee contribution of $50). The QNEC is adjusted for Earnings.   
          
      Example 6:   
          
     Employer D sponsors a § 401(k) plan. The plan has a one year of service eligibility requirement and provides for January   
     1 and July 1 entry dates. Employee Y, who should have been provided the opportunity to elect and make elective deferrals   
     for the plan year beginning on January 1, 2006, was not provided the opportunity to elect and make elective deferrals until   
July 1, 2006. Employee Y made $5,000 in elective deferrals to the plan in 2006. Employee Y was a highly compensated   
employee with compensation for 2006 of $200,000. Employee Y's compensation from January 1 through June 30, 2006   
was $130,000. The ADP for highly compensated employees for 2006 was 10%. The ADP for nonhighly compensated   
employees for 2006 was 8%. The § 402(g) limit for deferrals made in 2006 was $15,000.   
     
 Correction:    
     
QNEC for missed deferral: Employee Y's missed deferral is equal to the 10% ADP for highly compensated employees   
multiplied by $130,000 (compensation earned for the portion of the year in which Employee Y was erroneously excluded,   
that is, January 1, 2006 through June 30, 2006). The missed deferral amount based on this calculation is $13,000. However,   
the sum of this amount ($13,000) and the previously made elective contribution ($5,000) is $18,000. The 2006 § 402(g)   
limit for elective deferrals is $15,000. In accordance with the provisions of section 2.02(1)(a)(ii)(B), the missed deferral   
needs to be reduced by $3,000 to ensure that the total elective contribution complies with the applicable § 402(g) limit.   
Accordingly, the missed deferral is $10,000 ($13,000 minus $3,000) and the required QNEC is $5,000 (that is, 50% mul-   
tiplied by the missed deferral of $10,000). The QNEC is adjusted for Earnings.   
     
 Example 7:   
     
Employer E maintains a § 401(k) plan. The plan provides for matching contributions for each payroll period that are equal   
to 100% of an employee's elective deferrals that do not exceed 2% of the eligible employee's plan compensation during   
the payroll period. The plan also provides that the annual limit on matching contributions is $750. The plan provides for   
after-tax employee contributions. The after-tax employee contribution cannot exceed $1,000 during a plan year. The plan   
provides that employees who complete one year of service are eligible to participate in the plan on the next January 1 or   
July 1 entry date. Employee Z, a nonhighly compensated employee who met the eligibility requirements and should have   
entered the plan on January 1, 2006, was not offered the opportunity to elect to have elective contributions made on his be-   
half to the plan. In March of 2006, the error was discovered and Employer E offered the employee an election opportunity   
as of April 1, 2006. Employee Z had the opportunity to make the maximum elective deferrals and/or after-tax employee   
contributions that could have been made under the terms of the plan for the entire 2006 plan year. The employee made   
elective deferrals equal to 3% of the employee's plan compensation for each payroll period from April 1, 2006 through   
December 31, 2006 (resulting in elective deferrals of $960). The employee's plan compensation for 2006 was $40,000   
($8,000 for the first three months and $32,000 for the last nine months). Employer E made matching contributions equal   
to $640 for the excluded employee, which is 2% of the employee's plan compensation for each payroll period from April   
1, 2006 through December 31, 2006 ($32,000). After being allowed to participate in the plan, the employee made $500   
in after-tax employee contributions. The ADP for nonhighly compensated employees for 2006 was 3% and the ACP for   
nonhighly compensated employees for 2006 was 2.3%. The portion of the ACP attributable to matching contributions for   
nonhighly compensated employees for 2006 was 1.8%. The portion of the ACP attributable to after-tax employee contri-   
butions for nonhighly compensated employees for 2006 was 0.5%.   
     
 Correction:   
     
Employer E uses the correction method for partial year exclusions, pursuant to section 2.02(1)(a)(ii), to correct the failure   
to include an eligible employee in the plan. Because Employee Z was given an opportunity to make elective deferrals   
and after-tax employee contributions to the plan for at least the last 9 months of the plan year (and the amount of the   
elective deferrals or after-tax employee contributions that the employee had the opportunity to make was not less than the   
maximum elective deferrals or after-tax employee contributions that the employee could have made if the employee had   
been given the opportunity to make elective deferrals and after-tax employee contributions on January 1, 2006), under the   
special rule set forth in section 2.02(1)(a)(ii)(F), Employer E is not required to make a QNEC for the failure to provide the   
employee with the opportunity to make either elective deferrals or after-tax employee contributions. The employer only   
needs to make a corrective employer nonelective contribution for the failure to provide the employee with the opportunity   
to receive matching contributions on deferrals that could have been made during the first 3 months of the plan year. The   
calculation of the corrective employer contribution required to correct this failure is shown as follows:   
     
The missed matching contribution is determined by calculating the matching contribution that the employee would have   
received had the employee been provided the opportunity to make elective deferrals during the period of exclusion, that   
is, January 1, 2006 through March 31, 2006. Assuming that the employee elected to defer an amount equal to 3% of com-   
pensation (which is the ADP for the nonhighly compensated employees for the plan year), then, under the terms of the   
plan, the employee would have been entitled to a matching contribution of 2% of compensation. Pursuant to the provisions   
of section 2.02(1)(a)(ii)(E), Employer E determines compensation by prorating Employee Z's annual compensation for   
the portion of the year that Employee Z was not given the opportunity to make elective deferrals or after-tax employee   
contributions. Accordingly, the missed matching contribution for the period of exclusion is obtained by multiplying 2%   
by Employee Z's compensation of $10,000 (3/12ths of the employee's 2006 plan compensation of $40,000). Based on this   
calculation, the missed matching contribution is $200. However, when this amount is added to the matching contribution   
already received ($640), the total ($840) exceeds the $750 plan limit on matching contributions by $90. Accordingly,   
pursuant to section 2.02(1)(a)(ii)(D), the missed matching contribution figure is reduced to $110 ($200 minus $90). The   
required corrective employer contribution is $110. The corrective contribution is adjusted for Earnings.   
     
 Example 8:   
     
Employer G maintains a safe harbor § 401(k) plan that requires matching contributions that satisfy the requirements of   
§ 401(k)(12), which are equal to: 100% of elective deferrals that do not exceed 3% of an employee's compensation and   
50% of elective deferrals that exceed 3% but do not exceed 5% of an employee's compensation. Employee M, a nonhighly   
compensated employee who met the eligibility requirements and should have entered the plan on January 1, 2006, was not   
offered the opportunity to defer under the plan and was erroneously excluded for all of 2006. Employee M's compensation   
for 2006 was $20,000.   
     
 Correction:   
     
In accordance with the provisions of section 2.02(1)(a)(ii)(B), Employee M's missed deferral on account of exclusion from   
the safe harbor § 401(k) plan is 3% of compensation. Thus, the missed deferral is equal to 3% multiplied by $20,000, or   
$600. Accordingly, the required QNEC for Employee M's missed deferral opportunity in 2006 is $300, that is, 50% of   
$600. The missed matching contribution, based on the missed deferral of $600, is $600. The required corrective contri-   
bution for Employee M's missed matching contribution is $600. Since the matching contribution is required to satisfy the   
requirements of § 401(k)(12), the corrective contribution must be made in the form of a QNEC. The total QNEC, before   
adjustments for Earnings, on behalf of Employee M is $900 (that is, $300 for the missed deferral opportunity plus $600   
for the missed matching contribution). The QNEC is adjusted for Earnings.   
     
 Example 9:   
     
Same facts as Example 8, except that the plan provides for matching contributions equal to 100% of elective deferrals that   
do not exceed 4% of an employee's compensation.   
     
 Correction:   
     
In accordance with the provisions of section 2.02(1)(a)(ii)(B), Employee M's missed deferral on account of exclusion   
from the safe harbor § 401(k) plan is 4% of compensation. The missed deferral is 4% of compensation because the plan   
provides for a 100% match for deferrals up to that level of compensation. (See Appendix A, section.05(2)(d).) Therefore,   
in this case, Employee M's missed deferral is equal to 4% multiplied by $20,000, or $800. The QNEC for Employee M's   
missed deferral opportunity in 2006 is $400, that is, 50% multiplied by $800. The missed matching contribution, based   
on the missed deferral of $800, is $800. Thus, the required corrective contribution for Employee M's missed matching   
contribution is $800. Since the matching contribution is required to satisfy the requirements of § 401(k)(12), the correc-   
tive contribution must be made in the form of a QNEC. The total QNEC, before adjustments for Earnings, on behalf of   
Employee M is $1,200 (that is, $400 for the missed deferral opportunity plus $800 for the missed matching contribution).   
The QNEC is adjusted for Earnings.   
     
 Example 10:   
     
Same facts as Example 8, except that the plan uses a rate of nonelective contributions to satisfy the requirements of   
§ 401(k)(12) and provides for a nonelective contribution equal to 3% of compensation.   
     
 Correction:   
     
In accordance with the provisions of section 2.02(1)(a)(ii)(B), Employee M's missed deferral on account of exclusion   
from the safe harbor § 401(k) plan is 3% of compensation. Thus, the missed deferral is equal to 3% multiplied by $20,000,   
or $600. Thus, the QNEC for Employee M's missed deferral opportunity in 2006 is $300 (50% of $600). The required   
nonelective contribution, based on the plan's formula of 3% of compensation for nonelective contributions, is $600. Since   
the nonelective contribution is required to satisfy the requirements of § 401(k)(12), the corrective contribution is made in   
the form of a QNEC. The total required QNEC, before adjustments for Earnings, on behalf of Employee M is $900 (that   
is, $300 for the missed deferral opportunity, plus $600 for the missed nonelective contribution). The QNEC is adjusted   
for Earnings.   
     
 Example 11:   
     
Employer H maintains a § 401(k) plan. The plan limit on deferrals is the lesser of the deferral limit under § 401(a)(30) or   
the limitation under § 415. The  plan also provides that eligible participants (as defined in § 414(v)(5)) may make contri -   
butions in excess of the plan's deferral limits, up to the limitations on catch-up contributions for the year. The plan also   
provides for a 60% matching contribution on elective deferrals. The deferral limit under § 401(a)(30) for 2006 is $15,000.   
The limitation on catch-up contributions under the terms of the plan and § 414(v)(2)(B)(i) is $5,000. Employee R, age   
55, was provided with the opportunity to make elective deferrals up to the plan limit, but was not provided the option to   
make catch-up contributions. Employee R is a nonhighly compensated employee who earned $60,000 in compensation   
and made elective deferrals totaling $15,000 in 2006.   
     
 Correction:   
     
In accordance with the provisions of Appendix A, section.05(4), Employee R's missed deferral on account of the plan's   
failure to offer the opportunity to make catch-up contributions is $2,500 (or one half of the limitation on catch-up contri-   
butions for 2006). The missed deferral opportunity is $1,250 (or 50% of $2,500). Thus, the required QNEC for Employee   
R's missed deferral opportunity relating to catch-up contributions in 2006 is $1,250 adjusted for Earnings. In addition,   
Employee R was entitled to an additional matching contribution, under the terms of the plan, equal to 60% of the missed   
deferral that is attributable to the catch-up contribution that the employee would have made had the failure not occurred.   
In this case, the missed deferral is $2,500 and the corresponding matching contribution is $1,500 (that is, 60% of $2,500).   
Thus, the required corrective contribution for the additional matching contribution that should have been made on behalf   
of Employee R is $1,500 adjusted for Earnings.   
     
 Example 12:   
     
Employer K maintains a § 401(k) plan. The plan provides for matching contributions for eligible employees equal to 100%   
of elective deferrals that do not exceed 3% of an employee's compensation. On January 1, 2006, Employee T made an   
election to contribute 10% of compensation for the 2006 plan year. However, Employee T's election was not processed,   
and the required amounts were not withheld from Employee T's salary in 2006. Employee T's salary was $30,000 in 2006.   
     
 Correction:   
     
Employer K uses the correction method described in Appendix A, section.05(5), to correct the failure to implement Em-   
ployee T's election to make elective deferrals under the plan for the full plan year beginning January 1, 2006. Employer K   
calculates the corrective QNEC to be made on behalf of Employee T as follows:   
     
(1)   Elective deferrals: Employee T's election to make elective deferrals, pursuant to an election, in 2006 was not im-   
plemented. Thus, pursuant to Appendix A, section.05(5)(a), Employer K must make a QNEC to the plan on behalf of   
Employee T equal to the missed deferral opportunity for Employee T, which is 50% of Employee T's missed deferral.   
The QNEC is adjusted for Earnings. The missed deferral for Employee T is determined by using T's elected deferral per-   
centage (10%) for 2006 and multiplying that percentage by Employee T's compensation for 2006 ($30,000). Accordingly,   
the missed deferral for Employee V, on account of the employee's improper exclusion from the plan is $3,000 (10% x   
$30,000). The missed deferral opportunity is $1,500 (that is, 50% x $3,000). Thus, the required QNEC for the failure to   
provide Employee V with the opportunity to make elective deferrals to the plan is $1,500 (adjusted for Earnings).   
     
(2)   Matching contributions: Employee T should have been eligible for but did not receive an allocation of employer   
matching contributions because no elective deferrals were made on behalf of Employee T in 2006. Thus, pursuant to Ap-   
pendix A, section.05(5)(c), Employer K must make a corrective employer nonelective contribution to the plan on behalf   
of Employee T that is equal to the matching contribution Employee T would have received had the missed deferral been   
made. The corrective employer nonelective contribution is adjusted for Earnings. Under the terms of the plan, if Employee   
T had made an elective deferral of $3,000 or 10% of compensation ($30,000), the employee would have been entitled to a   
matching contribution equal to 100% of the first 3% of Employee T's compensation ($30,000) or $900. Accordingly, the   
contribution required to replace the missed employer matching contribution is $900, adjusted for Earnings.   
     
The total required corrective contribution, before adjustments for Earnings, on behalf of Employee T is $2,400 ($1,500   
for the missed deferral opportunity plus $900 for the missed matching contribution). The corrective contribution for the   
missed deferral opportunity ($1,500) and related Earnings must be made in the form of a QNEC.   
     
(2)   Exclusion of Eligible Employees In a Profit-Sharing Plan. (a)   Correction Methods. (i)     Appen-    
 dix A Correction Method. Appendix A, section.05, sets forth the method for correcting the failure   
to make a contribution on behalf of an employee improperly excluded from a defined contribution   
plan or to provide benefit accruals for an employee improperly excluded from a defined benefit   
plan. In the case of a defined contribution plan, the correction method is to make a contribution   
on behalf of an excluded employee. Section 2.02(2)(a)(ii) clarifies the correction method in the   
case of a profit-sharing or stock bonus plan that provides for nonelective contributions (within the   
meaning of §1.401(k)-6).   
     
(ii)   Additional Requirements for Appendix A Correction Method as applied to Profit-Sharing    
 Plans. To correct for the exclusion of an eligible employee from nonelective contributions in a   
profit-sharing or stock bonus plan under the Appendix A correction method, an allocation amount   
is determined for each excluded employee on the same basis as the allocation amounts were   
determined for the other employees under the plan's allocation formula (for example, the same   
ratio of allocation to compensation), taking into account all of the employee's relevant factors (for   
example, compensation) under that formula for that year. The Plan Sponsor makes a corrective   
contribution on behalf of the excluded employee that is equal to the allocation amount for the ex-   
cluded employee. The corrective contribution is adjusted for Earnings. If, as a result of excluding   
an employee, an amount was improperly allocated to the account balance of an eligible employee   
who shared in the original allocation of the nonelective contribution, no reduction is made to the   
account balance of the employee who shared in the original allocation on account of the improper   
allocation. (See Example 15.)   
     
(iii)   Reallocation Correction Method. (A)   In General. Subject to the limitations set forth in sec-   
tion 2.02(2)(a)(iii)(F) below, in addition to the Appendix A correction method, the exclusion of   
an eligible employee for a plan year from a profit-sharing or stock bonus plan that provides for   
nonelective contributions may be corrected using the reallocation correction method set forth in   
this section 2.02(2)(a)(iii). Under the reallocation correction method, the account balance of the   
excluded employee is increased as provided in paragraph (2)(a)(iii)(B) below, the account balanc-   
es of other employees are reduced as provided in paragraph (2)(a)(iii)(C) below, and the increases   
and reductions are reconciled, as necessary, as provided in paragraph (2)(a)(iii)(D) below. (See   
Examples 16 and 17.)   
     
(B)   Increase in Account Balance of Excluded Employee. The account balance of the excluded em-   
ployee is increased by an amount that is equal to the allocation the employee would have received   
had the employee shared in the allocation of the nonelective contribution. The amount is adjusted   
for Earnings.   
     
(C)   Reduction in Account Balances of Other Employees. (1) The account balance of each em-   
ployee who was an eligible employee who shared in the original allocation of the nonelective   
contribution is reduced by the excess, if any, of (I) the employee's allocation of that contribution   
over (II) the amount that would have been allocated to that employee's account had the failure not   
occurred. This amount is adjusted for Earnings taking into account the rules set forth in section   
2.02(2)(a)(iii)(C)(2) and (3) below. The amount after adjustment for Earnings is limited in accor-   
dance with section 2.02(2)(a)(iii)(C)(4) below.   
     
(2) This paragraph (2)(a)(iii)(C)(2) applies if most of the employees with account balances that   
are being reduced are nonhighly compensated employees. If there has been an overall gain for the   
period from the date of the original allocation of the contribution through the date of correction,   
no adjustment for Earnings is required to the amount determined under section 2.02(2)(a)(iii)(C)   
(1) for the employee. If the amount for the employee is being adjusted for Earnings and the plan   
permits investment of account balances in more than one investment fund, for administrative   
convenience, the reduction to the employee's account balance may be adjusted by the lowest rate   
of return of any fund for the period from the date of the original allocation of the contribution   
through the date of correction.   
     
(3) If an employee's account balance is reduced and the original allocation was made to more than   
one investment fund or there was a subsequent distribution or transfer from the fund receiving the   
original allocation, then reasonable, consistent assumptions are used to determine the Earnings   
adjustment.   
     
(4) The amount determined in section 2.02(2)(a)(iii)(C)(1) for an employee after the application   
of section 2.02(2)(a)(iii)(C)(2) and (3) may not exceed the account balance of the employee on   
the date of correction, and the employee is permitted to retain any distribution made prior to the   
date of correction.   
     
(D)   Reconciliation of Increases and Reductions. If the aggregate amount of the increases under   
section 2.02(2)(a)(iii)(B) exceeds the aggregate amount of the reductions under section 2.02(2)(a)   
(iii)(C), the Plan Sponsor makes a corrective contribution to the plan for the amount of the excess.   
If the aggregate amount of the reductions under section 2.02(2)(a)(iii)(C) exceeds the aggregate   
amount of the increases under section 2.02(2)(a)(iii)(B), then the amount by which each employ-   
ee's account balance is reduced under section 2.02(2)(a)(iii)(C) is decreased on a pro rata basis.   
     
(E)   Reductions Among Multiple Investment Funds. If an employee's account balance is reduced   
and the employee's account balance is invested in more than one investment fund, then the reduc-   
tion may be made from the investment funds selected in any reasonable manner.   
     
(F)   Limitations on Use of Reallocation Correction Method. If any employee would be permitted   
to retain any distribution pursuant to section 2.02(2)(a)(iii)(C)(4), then the reallocation correction   
method may not be used unless most of the employees who would be permitted to retain a distri-   
bution are nonhighly compensated employees.   
     
(b)   Examples.   
     
 Example 13:   
     
Employer D maintains a profit-sharing plan that provides for discretionary nonelective employer contributions. The plan   
provides that the employer's contributions are allocated to account balances in the ratio that each eligible employee's   
compensation for the plan year bears to the compensation of all eligible employees for the plan year and, therefore, the   
only relevant factor for determining an allocation is the employee's compensation. The plan provides for self-directed   
investments among four investment funds and daily valuations of account balances. For the 2006 plan year, Employer D   
made a contribution to the plan of a fixed dollar amount. However, five employees who met the eligibility requirements   
were inadvertently excluded from participating in the plan. The contribution resulted in an allocation on behalf of each of   
the eligible employees, other than the excluded employees, equal to 10% of compensation. Most of the employees who re-   
ceived allocations under the plan for the year of the failure were nonhighly compensated employees. No distributions have   
been made from the plan since 2006. If the five excluded employees had shared in the original allocation, the allocation   
made on behalf of each employee would have equaled 9% of compensation. The excluded employees began participating   
in the plan in the 2007 plan year.   
     
 Correction:   
     
Employer D uses the Appendix A correction method to correct the failure to include the five eligible employees. Thus,   
Employer D makes a corrective contribution to the plan. The amount of corrective contribution on behalf of the five ex-   
cluded employees for the 2006 plan year is equal to 10% of compensation of each excluded employee, the same allocation   
that was made for other eligible employees, adjusted for Earnings. The excluded employees receive an allocation equal to   
10% of compensation (adjusted for Earnings) even though, had the excluded employees originally shared in the allocation   
for the 2006 contribution, their account balances, as well as those of the other eligible employees, would have received an   
allocation equal to only 9% of compensation.   
     
 Example 14:   
     
The facts are the same as in Example 13.   
     
 Correction:   
     
Employer D uses the reallocation correction method to correct the failure to include the five eligible employees. Thus, the   
account balances are adjusted to reflect what would have resulted from the correct allocation of the employer contribution   
for the 2006 plan year among all eligible employees, including the five excluded employees. The inclusion of the excluded   
employees in the allocation of that contribution would have resulted in each eligible employee, including each excluded   
employee, receiving an allocation equal to 9% of compensation. Accordingly, the account balance of each excluded em-   
ployee is increased by 9% of the employee's 2006 compensation, adjusted for Earnings. The account balance of each of the   
eligible employees other than the excluded employees is reduced by 1% of the employee's 2006 compensation, adjusted   
for Earnings. Employer D determines the adjustment for Earnings using the rate of return of each eligible employee's   
excess allocation (using reasonable, consistent assumptions). Accordingly, for an employee who shared in the original al-   
location and directed the investment of the allocation into more than one investment fund or who subsequently transferred   
a portion of a fund that had been credited with a portion of the 2006 allocation to another fund, reasonable, consistent as-   
sumptions are followed to determine the adjustment for Earnings. It is determined that the total of the initially determined   
reductions in account balances exceeds the total of the required increases in account balances. Accordingly, these initially   
determined reductions are decreased pro rata so that the total of the actual reductions in account balances equals the total of   
the increases in the account balances, and Employer D does not make any corrective contribution. The reductions from the   
account balances are made on a pro rata basis among all of the funds in which each employee's account balance is invested.   
     
 Example 15:   
     
The facts are the same as in Example 13.   
     
 Correction:   
     
The correction is the same as in Example 14, except that, because most of the employees whose account balances are   
being reduced are nonhighly compensated employees, for administrative convenience, Employer D uses the rate of return   
of the fund with the lowest rate of return for the period of the failure to adjust the reduction to each account balance. It is   
determined that the aggregate amount (adjusted for Earnings) by which the account balances of the excluded employees   
is increased exceeds the aggregate amount (adjusted for Earnings) by which the other employees' account balances are   
reduced. Accordingly, Employer D makes a contribution to the plan in an amount equal to the excess. The reduction from   
account balances is made on a pro rata basis among all of the funds in which each employee's account balance is invested..03 Vesting Failures. (1)   Correction Methods. (a)   Contribution Correction Method. A failure in a   
defined contribution plan to apply the proper vesting percentage to the employee's account balance   
that results in forfeiture of too large a portion of the employee's account balance may be corrected   
using the contribution correction method set forth in this paragraph. The Plan Sponsor makes a   
corrective contribution on behalf of the employee whose account balance was improperly forfeit-   
ed in an amount equal to the improper forfeiture. The corrective contribution is adjusted for Earn-   
ings. If, as a result of the improper forfeiture, an amount was improperly allocated to the account   
balance of another employee, no reduction is made to the account balance of that employee. (See   
Example 16.)   
     
(b)   Reallocation Correction Method. In lieu of the contribution correction method, in a defined   
contribution plan under which forfeitures of account balances are reallocated among the account   
balances of the other eligible employees in the plan, a failure to apply the proper vesting per-   
centage to an employee's account balance which results in forfeiture of too large a portion of the   
employee's account balance may be corrected under the reallocation correction method set forth   
in this paragraph. A corrective reallocation is made in accordance with the reallocation correction   
method set forth in section 2.02(2)(a)(iii), subject to the limitations set forth in section 2.02(2)(a)   
(iii)(F). In applying section 2.02(2)(a)(iii)(B), the account balance of the employee who incurred   
the improper forfeiture is increased by an amount equal to the amount of the improper forfeiture   
and the amount is adjusted for Earnings. In applying section 2.02(2)(a)(iii)(C)(1), the account   
balance of each employee who shared in the allocation of the improper forfeiture is reduced by   
the amount of the improper forfeiture that was allocated to that employee's account. The Earnings   
adjustments for the account balances that are being reduced are determined in accordance with   
sections 2.02(2)(a)(iii)(C)(2) and (3) and the reductions after adjustments for Earnings are limited   
in accordance with section 2.02(2)(a)(iii)(C)(4). In accordance with section 2.02(2)(a)(iii)(D), if   
the aggregate amount of the increases exceeds the aggregate amount of the reductions, the Plan   
Sponsor makes a corrective contribution to the plan for the amount of the excess. In accordance   
with section 2.02(2)(a)(iii)(D), if the aggregate amount of the reductions exceeds the aggregate   
amount of the increases, then the amount by which each employee's account balance is reduced is   
decreased on a pro rata basis. (See Example 17.)   
     
(2)   Examples.   
     
 Example 16:   
     
Employer E maintains a profit-sharing plan that provides for nonelective contributions. The plan provides for self-directed   
investments among four investment funds and daily valuation of account balances. The plan provides that forfeitures of   
account balances are reallocated among the account balances of other eligible employees on the basis of compensation.   
During the 2006 plan year, Employee R terminated employment with Employer E and elected and received a single-sum   
distribution of the vested portion of his account balance. No other distributions have been made since 2006. However, an   
incorrect determination of Employee R's vested percentage was made resulting in Employee R receiving a distribution of   
less than the amount to which he was entitled under the plan. The remaining portion of Employee R's account balance was   
forfeited and reallocated (and these reallocations were not affected by the limitations of § 415). Most of the employees who   
received allocations of the improper forfeiture were nonhighly compensated employees.   
     
 Correction:   
     
Employer E uses the contribution correction method to correct the improper forfeiture. Thus, Employer E makes a con-   
tribution on behalf of Employee R equal to the incorrectly forfeited amount (adjusted for Earnings) and Employee R's   
account balance is increased accordingly and subsequently distributed to Employee R. No reduction is made from the   
account balances of the employees who received an allocation of the improper forfeiture.   
     
 Example 17:   
     
The facts are the same as in Example 16.   
     
 Correction:   
     
Employer E uses the reallocation correction method to correct the improper forfeiture. Thus, Employee R's account bal-   
ance is increased by the amount that was improperly forfeited (adjusted for Earnings) and such increase will be distributed   
to Employee R. The account of each employee who shared in the allocation of the improper forfeiture is reduced by the   
amount of the improper forfeiture that was allocated to that employee's account (adjusted for Earnings). Because most   
of the employees whose account balances are being reduced are nonhighly compensated employees, for administrative   
convenience, Employer E uses the rate of return of the fund with the lowest rate of return for the period of the failure to   
adjust the reduction to each account balance. It is determined that the amount (adjusted for Earnings) by which the account   
balance of Employee R is increased exceeds the aggregate amount (adjusted for Earnings) by which the other employees'   
account balances are reduced. Accordingly, Employer E makes a contribution to the plan in an amount equal to the excess.   
The reduction from the account balances is made on a pro rata basis among all of the funds in which each employee's   
account balance is invested..04 Section 415(c) Failures and Correction of Overpayments (Defined Contribution Plans and   
§ 403(b) Plans).   
     
(1)   Correction Methods for Failures Relating to a § 415(c) Excess. (a)   Appendix A Correction    
 Method. Appendix A, section.08, sets forth the correction method for correcting the failure to   
satisfy the § 415(c) limits on annual additions.   
     
(b)   Forfeiture Correction Method. In addition to the Appendix A correction method, the failure   
to satisfy § 415(c) with respect to a nonhighly compensated employee (A) who in the limitation   
year of the failure had annual additions consisting of both (I) either elective deferrals or after-tax   
employee contributions or both and (II) either matching or nonelective contributions or both, (B)   
for whom the matching and nonelective contributions equal or exceed the portion of the employ-   
ee's annual addition that exceeds the limits under § 415(c) ("§ 415(c) excess") for the limitation   
year, and (C) who has terminated with no vested interest in the matching and nonelective contri-   
butions (and has not been reemployed at the time of the correction), may be corrected by using   
the forfeiture correction method set forth in this paragraph. The § 415(c) excess is deemed to   
consist solely of the matching and nonelective contributions. If the employee's § 415(c) excess   
(adjusted for Earnings) has previously been forfeited, the § 415(c) failure is deemed to be cor-   
rected. If the § 415(c) excess (adjusted for Earnings) has not been forfeited, that amount is placed   
in an unallocated account, as described in section 6.06(2) of this revenue procedure, to be used   
to reduce employer nonelective contributions in succeeding year(s) (or if the amount would have   
been allocated to other employees who were in the plan for the year of the failure if the failure had   
not occurred, then that amount is reallocated to the other employees in accordance with the plan's   
allocation formula). Note that while this correction method will permit more favorable tax treat-   
ment of elective deferrals for the employee than the Appendix A correction method, this correction   
method could be less favorable to the employee in certain cases, for example, if the employee is   
subsequently reemployed and becomes vested. (See Examples 18 and 19.)   
     
(c)   Return of Overpayment Correction Method. A failure to satisfy § 415(c) that includes a distri-   
bution of a § 415(c) excess attributable to nonelective contributions and matching contributions   
may be corrected using the return of Overpayment correction method set forth in section 6.06(4)   
of this revenue procedure.   
     
(2)   Correction of Overpayment Failures that are not Attributable to a § 415(c) Excess. An Over-   
payment that is not attributable to a § 415(c) excess may be corrected in accordance with the   
return of Overpayment correction method in section 2.04(1)(c).   
     
(3)   Examples.   
     
      Example 18:   
          
     Employer G maintains a § 401(k) plan. The plan provides for nonelective employer contributions, elective deferrals, and   
     after-tax employee contributions. The plan provides that the nonelective contributions vest under a 5-year cliff vesting   
     schedule. The plan provides that when an employee terminates employment, the employee's nonvested account balance   
     is forfeited five years after a distribution of the employee's vested account balance and that forfeitures are used to reduce   
     employer contributions. For the 1998 limitation year, the annual additions made on behalf of two nonhighly compensated   
     employees in the plan, Employees T and U, exceeded the limit in § 415(c). For the 1998 limitation year, Employee T had   
     § 415 compensation of $60,000, and, accordingly, a § 415(c)(1)(B) limit of $15,000. Employee T made elective deferrals   
     and after-tax employee contributions. For the 1998 limitation year, Employee U had § 415 compensation of $40,000, and,   
     accordingly, a § 415(c)(1)(B) limit of $10,000. Employee U made elective deferrals. Also, on January 1, 1999, Employee   
     U, who had three years of service with Employer G, terminated his employment and received his entire vested account   
     balance (which consisted of his elective deferrals). The annual additions for Employees T and U consisted of:   
          
                
     
          
          
          
          
          
          
          
      Correction:   
          
     Employer G uses the Appendix A correction method to correct the § 415(c) excess with respect to Employee T (that is,   
     $3,000). Thus, a distribution of plan assets (and corresponding reduction of the account balance) consisting of $500 (ad-   
     justed for Earnings) of after-tax employee contributions and $2,500 (adjusted for Earnings) of elective deferrals is made   
     to Employee T. Employer G uses the forfeiture correction method to correct the § 415(c) excess with respect to Employee   
     U. Thus, the § 415(c) excess is deemed to consist solely of the nonelective contributions. Accordingly, Employee U's non-   
     vested account balance is reduced by $300 (adjusted for Earnings) which is placed in an unallocated account, as described   
     in section 6.06(2) of this revenue procedure, to be used to reduce employer contributions in succeeding year(s). After   
     correction, it is determined that the ADP and ACP tests for 1998 were satisfied.   
          
      Example 19:   
          
     Employer H maintains a § 401(k) plan. The plan provides for nonelective employer contributions, matching contributions,   
     and elective deferrals. The plan provides for matching contributions that are equal to 100% of an employee's elective   
     deferrals that do not exceed 8% of the employee's plan compensation for the plan year. For the 1998 limitation year, Em-   
     ployee V had § 415 compensation of $50,000, and, accordingly, a § 415(c)(1)(B) limit of $12,500. During that limitation   
     year, the annual additions for Employee V totaled $15,000, consisting of $5,000 in elective deferrals, a $4,000 matching   
     contribution (8% of $50,000), and a $6,000 nonelective employer contribution. Thus, the annual additions for Employee   
     V exceeded the § 415(c) limit by $2,500.   
          
      Correction:   
          
     Employer H uses the Appendix A correction method to correct the § 415(c) excess with respect to Employee V (that is,   
     $2,500). Accordingly, $1,000 of the unmatched elective deferrals (adjusted for Earnings) are distributed to Employee V.   
     The remaining $1,500 excess is apportioned equally between the elective deferrals and the associated matching employer   
     contributions, so Employee V's account balance is further reduced by distributing to Employee V $750 (adjusted for   
     Earnings) of the elective deferrals and forfeiting $750 (adjusted for Earnings) of the associated employer matching contri-   
     butions. The forfeited matching contributions are placed in an unallocated account, as described in section 6.06(2) of this   
     revenue procedure, to be used to reduce employer contributions in succeeding year(s). After correction, it is determined   
     that the ADP and ACP tests for 1998 were satisfied..05 Section 415(b) Failures and Correction of Overpayments (Defined Benefit Plans). (1)   In Gen-    
      eral. An Overpayment in a defined benefit plan may be corrected using the return of Overpayment   
     or adjustment of future payment correction methods set forth in section 2.05(2), or, provided   
     certain requirements are satisfied, the funding exception correction method set forth in section   
     2.05(3), or the contribution credit correction method set forth in section 2.05(4). However, the   
     funding exception correction method set forth in section 2.05(3) and the contribution credit cor-   
     rection method set forth in section 2.05(4) may not be applied with respect to Overpayments asso-   
     ciated with a failure to satisfy a statutory limit (including §§ 401(a)(17), 415(b), and 436) or with   
        Overpayments made to a disqualified person (as defined in § 4975(e)(2)) or an owner-employee   
   (as defined in § 401(c)). In addition, to be eligible to use the contribution credit correction method,   
   the plan may not have a funding deficiency or an unpaid minimum required contribution as of the   
   end of the last plan year before the plan year for which the Plan Sponsor takes into account the   
   corrected benefit payment amount for funding purposes (taking into account contributions made   
   after the end of the plan year that are credited to that plan year). As provided in section 6.06(3)   
   (e) of this revenue procedure, any other appropriate correction method may be used to correct an   
   Overpayment.   
     
   (2)   Return of Overpayment and Adjustment of Future Payments Correction Methods. (a)   Return    
    of Overpayment Correction Method. (i)   In General. Under the return of Overpayment correc-   
   tion method, the Plan Sponsor must take reasonable steps to have the Overpayment (adjusted for   
   appropriate interest) returned to the plan by the Overpayment recipient and must reduce future   
   benefit payments (if any) to the Overpayment recipient to equal the correct amount payable under   
   the terms of the plan (or an amount that satisfies a limitation provided in the Code or regulations).   
   The Plan Sponsor may permit the Overpayment recipient to repay the Overpayment through the   
   payment of a single sum or through an installment agreement, as described in section 2.05(2)(a)   
   (ii). If the amount returned to the plan by the Overpayment recipient is less than the Overpayment   
   adjusted for Earnings at the plan's earnings rate, the Plan Sponsor or another person (other than   
   any spouse or beneficiary of the Overpayment recipient) must contribute the difference to the plan.   
   In addition, if the Overpayment was previously treated as eligible for favorable tax treatment,   
   in accordance with section 6.06(3) of this revenue procedure, the Plan Sponsor must notify the   
   Overpayment recipient in writing that the Overpayment was not eligible for favorable tax treat-   
   ment accorded to distributions from qualified plans (and, specifically, was not eligible for tax-free   
   rollover). (See Examples 23, 24, and 25.)   
     
   (ii)   Rules Relating to Recoupment Through an Installment Agreement. Under the return of Over-   
   payment correction method, the Plan Sponsor may permit an Overpayment recipient to repay the   
   Overpayment through an installment agreement. However, this option is not available in cases in   
   which the Overpayment recipient is a disqualified person (as defined in § 4975(e)(2)) or an own-   
   er-employee (as defined in § 401(c)).   
     
   (b)   Adjustment of Future Payments Correction Method. (i)   In General. In the case of plan benefits   
   that are being distributed in the form of periodic payments, Overpayments may be corrected using   
   the adjustment of future payments correction method set forth in this section 2.05(2)(b). Under the   
   adjustment of future payments correction method, payments made to the Overpayment recipient   
   on or after the date of correction are reduced so that they do not exceed the correct benefit payment   
   under the terms of the plan (or satisfy a limitation provided in the Code or regulations). An addi-   
   tional reduction is made to recoup the Overpayment (over a period not longer than the remaining   
   payment period) so that the actuarial present value of the additional reduction, determined as of   
   the date of correction, is equal to the Overpayment plus interest at the interest rate used by the   
   plan as of the date of correction to determine actuarial equivalence. (See Examples 20 and 22.)   
     
   (ii)   Joint and Survivor Annuity Payments. If a participant is receiving payments in the form of   
   a joint and survivor annuity, with the employee's spouse receiving a life annuity upon the em-   
   ployee's death equal to a percentage (for example, 75 percent) of the amount being paid to the   
   employee, the reduction of future annuity payments to reflect the correct amount payable to the   
   participant under the terms of the plan (or to satisfy a limitation provided in the Code or regula-   
   tions) reduces the amount of benefits payable during the lives of both the employee and spouse.   
   However, any reduction to recoup Overpayments made to the employee's future annuity payments   
   does not reduce the amount of the spouse's survivor benefit (regardless of whether the Overpay-   
   ments have been recouped fully due to the reductions during the employee's lifetime). Thus, the   
   spouse's survivor benefit will be based on the specific percentage (for example, 75 percent) of the   
   maximum permitted amount payable under the terms of the plan (or to satisfy a limitation provid-   
   ed in the Code or Regulations), instead of the reduced periodic amount payable to the employee.   
   (See Example 21.)   
     
(iii)   Overpayment Not Treated as an Excess Amount. An Overpayment corrected under the ad-   
justment of future payments correction method is not treated as an Excess Amount as defined in   
section 5.01(3) of this revenue procedure.   
     
(iv)   Plan Sponsor Not Required to Contribute to the Plan. To the extent the amount returned by an   
Overpayment recipient through the adjustment of future payments correction method is less than   
the Overpayment (for example, due to the death of the Overpayment recipient), the Plan Sponsor   
is not required to contribute any additional amount to the plan.   
     
(c)   Overpayment Recipients May Be Given Choice of Recoupment Correction Methods. If seek-   
ing recoupment of an Overpayment under the return of Overpayment or adjustment of future   
payments correction methods under section 2.05(2), a Plan Sponsor may provide Overpayment   
recipients a choice of repaying an Overpayment by: (A) a single sum repayment, (B) entering an   
installment agreement, or (C) an adjustment   
     
(3)   Funding Exception Correction Method. Corrective payments are not required in the case of a   
plan subject to § 436, provided that the plan's certified or presumed AFTAP that is applicable to   
the plan at the date of correction is equal to at least 100 percent (or, in the case of a multiemployer   
plan, the plan's most recent annual funding certification indicates that the plan is not in critical,   
critical and declining, or endangered status, as defined in § 432, determined at the date of correc-   
tion). For this purpose, the rules for determining the AFTAP and presumed AFTAP under § 436   
and for determining the status of a multiemployer plan under § 432 must be followed. Future   
benefit payments to an Overpayment recipient must be reduced to the correct benefit payment   
amount. For purposes of EPCRS, no further payments from any party are required, no further   
reductions to future benefit payments to and Overpayment recipient, or any spouse or beneficiary   
of an Overpayment recipient, are permitted, and no further corrective payments from an Over-   
payment recipient, or any spouse or beneficiary of an Overpayment recipient, are permitted. (See   
Examples 25 and 28.)   
     
(4)   Contribution Credit Correction Method. (a)   In General. (i) Subject to the additional rules set   
forth in section 2.05(4)(a)(ii) and (b), under the contribution credit correction method, the amount   
of Overpayments required to be repaid to the plan is the amount of the Overpayments reduced (but   
not below zero) by: (A) the cumulative increase in the plan's minimum funding requirements at-   
tributable to the Overpayments (including the increase attributable to the overstatement of liabili-   
ties, whether funded through cash contributions or through the use of a funding standard carryover   
balance, prefunding balance, or funding standard account credit balance), beginning with (1) the   
plan year for which the Overpayments are taken into account for funding purposes, and through   
(2) the end of the plan year preceding the plan year for which the corrected benefit payment   
amount is taken into account for funding purposes; and (B) certain additional contributions in   
excess of minimum funding requirements paid to the plan after the first of the Overpayment was   
made (see section 2.05(4)(a)(ii)). The amount of the Overpayments and the cumulative additional   
contributions (taking into account the increase in minimum funding and excess contributions) are   
determined without adjustment for interest. (See Examples 26 and 27.) This reduction is referred   
to as the "contribution credit."   
     
(ii) Contributions may not be counted toward the contribution credit if they are  designated   for other   
plan purposes. Accordingly, the following contributions to the plan in excess of minimum funding   
requirements may not be counted toward the contribution credit: (A) contributions added to the   
plan's prefunding balance (except that, if an election was made by the date of correction to reduce   
the prefunding balance by all or a portion of those contributions, then the amount by which the   
prefunding balance was reduced may be counted toward the contribution credit); (B) contribu-   
tions made to avoid or remove restrictions under § 436; (C) contributions made to CSEC plans   
and withdrawal liability payments and other contributions made to multiemployer plans (all of   
which are automatically added to the credit balance); and (D) contributions made to correct other   
Qualification Failures.   
     
(iii) For purposes of EPCRS, if the amount of the Overpayments is reduced to zero after the   
contribution credit is applied, no further corrective payments from any party are required, no   
further reductions to future benefit payments to an Overpayment recipient, or any spouse or ben-   
eficiary of an Overpayment recipient, are permitted, and no further corrective payments from an   
Overpayment recipient, or any spouse or beneficiary of an Overpayment recipient, are permitted.   
However, if a net amount of Overpayments remains ("net Overpayment") after application of the   
contribution credit, subject to section 2.05(4)(a)(iv) and the additional rules set forth in section   
2.05(4)(b), the Plan Sponsor or another party must take one of the following actions to secure re-   
payment to the plan of the net Overpayment: (A) the Plan Sponsor or another party makes a single   
sum contribution to the plan in the amount of the net Overpayment; or (B) the Plan Sponsor takes   
reasonable steps to recoup the net Overpayment from the Overpayment recipient by (1) securing   
a single sum payment from the Overpayment recipient, (2) entering into an installment agreement   
with the Overpayment recipient, or (3) adjusting future benefit payments due to an Overpayment   
recipient in accordance with section 2.05(2)(b). If the Plan Sponsor pursues recoupment under this   
section 2.05(4)(a), Overpayment recipients must be permitted to choose which of these correction   
options will apply after receiving the written notification described in section 2.05(4)(b)(iv).   
     
(iv) To the extent the amount returned by an Overpayment recipient through either a single sum   
payment or an installment agreement is less than the net Overpayment, the Plan Sponsor or an-   
other person must contribute any additional amount owed to the plan. However, to the extent the   
amount returned by the Overpayment recipient through the adjustment of future payments is less   
than the net Overpayment (for example, due to the death of the Overpayment recipient), the Plan   
Sponsor is not required to contribute an additional amount to the plan.   
     
(b)   Additional Rules. The following additional rules apply if a net Overpayment remains after the   
application of the contribution credit as described in section 2.05(4)(a).   
     
(i)   Limitations Relating to Recoupment Through Adjustment of Future Payments. The following   
limitations apply if a Plan Sponsor pursues recoupment of a net Overpayment from an Overpay-   
ment recipient and the Overpayment recipient chooses to have future periodic benefit payments   
adjusted for the net Overpayment: (A) the maximum adjustment to a future periodic benefit pay-   
ment must be limited to 10 percent of the Overpayment recipient's corrected periodic payment   
amount; (B) interest may not accrue prior to the date that corrected periodic payments begin; and   
(C) appropriate interest must accrue on the amount of the net Overpayment beginning on the date   
the corrected periodic payments begin.   
     
(ii)   Rules Relating to Recoupment From an Overpayment Recipient Through an Installment Agree-    
 ment. The following rules apply if a Plan Sponsor pursues recoupment of a net Overpayment from   
an Overpayment recipient and the Overpayment recipient chooses to repay the net Overpayment   
through an installment agreement: (A) interest may not accrue prior to the date that installment   
payments begin; (B) appropriate interest must accrue on the amount of the net Overpayment be-   
ginning on the date the installment payments begin; and (C) the installment period over which the   
net Overpayment will be repaid to the plan must be at least five years.   
     
(iii)   Joint and Survivor Annuity Payments. The requirements set forth in section 2.05(2)(B)(ii), re-   
lating to joint and survivor annuity payments, apply to the contribution credit correction method.   
     
(iv)   Written Notification Required. Under the contribution credit correction method, a Plan Spon-       
sor that requests recoupment of a net Overpayment from an Overpayment recipient must provide   
a written notification to the Overpayment recipient with information about the net Overpayment   
and the repayment options available to the Overpayment recipient. This information must include   
the following:   
     
(A) a description of the error;   
     
(B) the amount of the Overpayment;   
     
(C) the amount of the Overpayment recipient's benefit after reduction to reflect the correct amount   
payable under the terms of the plan, or to satisfy a limitation provided in the Code or regula-   
tions;   
     
(D) the estimated amount of reduced future benefit payments that the Overpayment recipient will   
receive if the Overpayment recipient chooses to have future benefit payments adjusted; and   
     
(E) the estimated repayment amounts if the Overpayment recipient chooses to repay the Overpay-   
ment through a single sum repayment or an installment agreement.   
     
Information about the repayment options must indicate that if the Overpayment recipient does   
not choose a repayment option within a reasonable time (which may not be less than 30 days),   
the default repayment option will be the adjustment of future payments correction method if the   
Overpayment recipient is entitled to future payments under the terms of the plan, or a single sum   
repayment, if the Overpayment recipient is not entitled to future payments under the terms of the   
plan (for example, if the Overpayment recipient's entire benefit was distributed as a single sum   
payment). The information required by this section 2.05(4)(b)(iv) must be provided in addition to   
the written notification required under section 6.06(3)(b)(ii) of this revenue procedure (but may be   
set forth in the same notification to the Overpayment recipient).   
     
(c)   Examples.   
     
 Example 20:   
     
Employer F maintains a defined benefit plan funded solely through employer contributions. The plan provides that the   
benefits of employees are limited to the maximum amount permitted under § 415(b), disregarding cost-of-living adjust   
ments under § 415(d) after benefit payments have commenced. At the beginning of the 2006 plan year, Employee S retired   
and started receiving an annual straight life annuity of $185,000 from the plan. Due to an administrative error, the annual   
amount received by Employee S for 2006 included an Overpayment of $10,000 (because the § 415(b)(1)(A) limit for 2006   
was $175,000). This error was discovered at the beginning of 2007.   
     
 Correction:   
     
Employer F uses the adjustment of future payments correction method to correct the failure to satisfy the limit in § 415(b).   
Future annuity benefit payments to Employee S are reduced so that they do not exceed the § 415(b) maximum limit, and, in   
addition, Employee S's future benefit payments from the plan are actuarially reduced to recoup the Overpayment Accord-   
ingly, Employee S's future benefit payments from the plan are reduced to $175,000 and further reduced by $75,000 annually   
for life, beginning in 2007. The annual benefit amount is reduced by $1,000 annually for life because, for Employee S,   
the actuarial present value of a benefit of $1,000 annually for life commencing in 2007 is equal to the sum of $10,000 and   
interest at the rate used by the plan to determine actuarial equivalence beginning with the date of the first Overpayment and   
ending with the date the reduced annuity payment begins. Thus, Employee S's remaining benefit payments are reduced so   
that Employee S receives $174,000 for 2007, and for each year thereafter.   
     
 Example 21:   
     
The facts are the same as in Example 20, except that Employee S is receiving the benefit in the form of a fully-subsidized   
100% joint and survivor benefit, so that Employee S's spouse will receive 100% of Employee S's benefit after Employee   
S's death. As provided under Example 20, under the terms of the plan, the annual benefit payable to Employee S should   
have been $175,000 for Employee S's lifetime, and $175,000 to Employee S's spouse after Employee S's death.   
     
 Correction:   
     
The adjustment to recoup the Overpayment is applied only for Employee S's lifetime, as described in section 2.05(2)(b)   
(ii), so the actuarial adjustment is $1,000 annually as determined in Example 20. Therefore, the future annual payments   
to Employee S will be $174,000 for Employee S's lifetime, and the annual payments to Employee S's spouse will be   
$175,000 for the remainder of the spouse's lifetime after Employee S's death.   
     
 Example 22:   
     
The facts are the same as in Example 20.   
     
 Correction:   
     
Employer F uses the adjustment of future payments correction method to correct the § 415(b) failure, by recouping the   
entire excess payment made in 2006 from Employee S's remaining benefit payments for 2007. Thus, Employee S's annual   
annuity benefit for 2007 is reduced to $164,400 reflect the excess benefit amounts (increased by interest) that were paid   
from the plan to Employee S during the 2006 plan year. Beginning in 2008, Employee S begins to receive annual benefit   
payments of $175,000.   
     
 Example 23:   
     
The facts are the same as in Example 20, except that the benefit was paid to Employee S in the form of a single-sum dis-   
tribution in 2006, which exceeded the maximum § 415(b) limit by $110,000.   
     
 Correction:   
     
Employer F uses the return of Overpayment correction method to correct the § 415(b) failure. Thus, Employer F notifies   
Employee S of the $110,000 Overpayment and that the Overpayment was not eligible for favorable tax treatment accorded   
to distributions from qualified plans (and, specifically, was not eligible for tax-free rollover). The notice also informs Em   
ployee S that the Overpayment (with interest at the rate used by the plan to calculate the single-sum payment) is owed to   
the plan. Employer F takes reasonable steps to have the Overpayment (with interest at the rate used by the plan to calculate   
the single-sum payment) paid to the plan. Employee S pays the $110,000 (plus the requested interest) to the plan. It is   
determined that the plan's rate of return for the relevant period was 2 percentage points more than the rate used by the plan   
to calculate the single-sum payment. Accordingly, Employer F contributes the difference to the plan.   
     
 Example 24:   
     
The facts are the same as in Example 23.   
     
 Correction:   
     
Employer F uses the return of Overpayment correction method to correct the § 415(b) failure. Thus, Employer F notifies   
Employee S of the $110,000 Overpayment and that the Overpayment was not eligible for favorable tax treatment accorded   
to distributions from qualified plans (and, specifically, was not eligible for tax-free rollover). The notice also informs Em   
ployee S that the Overpayment (with interest at the rate used by the plan to calculate the single-sum payment) is owed to   
the plan. Employer F takes reasonable steps to have the Overpayment (with interest at the rate used by the plan to calculate   
the single-sum payment) paid to the plan. As a result of Employer F's recovery efforts, some, but not all, of the Overpay-   
ment (with interest) is recovered from Employee S. It is determined that the amount returned by Employee S to the plan   
is less than the Overpayment adjusted for Earnings at the plan's rate of return. Accordingly, Employer F contributes the   
difference to the plan.   
     
 Example 25:   
     
Plan H is a single-employer plan with a calendar-year plan year. In August, 2021, the Plan Sponsor discovers that the lump   
sum paid to Participant U in December, 2019 was overstated by $10,000, although the benefit was less than the maximum   
benefit permitted under § 415(b). Plan H's last certified AFTAP for the 2020 plan year is equal to 100%; however, the Plan   
Sponsor has not yet certified the AFTAP for 2021.   
     
 Correction:   
     
The Plan Sponsor notifies Participant U that $10,000 of the lump sum payment is not eligible for favorable tax treatment   
because the benefit exceeded the amount that should have been provided under plan terms. The Plan Sponsor uses the   
funding exception correction method to correct the Overpayments. Because the presumed AFTAP as required under § 436   
as of August, 2021 is equal to 100%, no corrective payment is required to be made to Plan H as a result of the Overpay-   
ment.   
     
 Example 26:   
     
The facts are the same as in Example 25, except that the certified AFTAP for 2020 was 90%. The Plan Sponsor determines   
that the $10,000 Overpayment increased the minimum funding requirement by $1,700 per year, starting with the 2020   
plan year when the Overpayment was first reflected in the funding calculations. The error was discovered after the 2021   
valuation was completed, so the Overpayment was also reflected in the 2021 minimum required contribution. The Plan   
Sponsor contributed an additional $1,000 over the minimum required contribution for the 2020 plan year which was not   
added to the prefunding balance.   
     
 Correction:     
     
The Plan Sponsor corrects the Overpayment under the contribution credit correction method. Under this correction meth-     
od, the cumulative contribution credit is $4,400 (that is, $1,700 for plan year 2020, $1,700 for plan year 2021, and the     
additional $1,000 contribution for the 2020 plan year). The difference of $5,600 ($10,000 - $4,400) must be repaid by     
the Plan Sponsor, Participant U, or another party. Under this correction method, no adjustment for interest is made when     
calculating the amount of the Overpayment or the cumulative contribution credit for periods before the date of correction.     
     
 Example 27:     
     
The facts are the same as in Example 26 except that Participant U retired December 1, 2019, with a life annuity and the     
Plan Sponsor discovered in August, 2021 that the monthly benefits paid to Participant U were overstated by $200 per   
month. The Plan Sponsor reduces the life annuity to the correct amount beginning with the benefit paid for September   
2021. The Plan Sponsor reflected the incorrect payment in the calculation of the minimum required contribution for the   
2020 and 2021 plan years and determined that the Overpayment resulted in an increase in the minimum required contribu-     
tion of $4,900 per year. Participant U received the $200 monthly Overpayment for 21 months, for a cumulative Overpay-     
ment of $4,200 (with no adjustment for interest prior to the date of correction).     
     
 Correction:     
     
The Plan Sponsor corrects the Overpayment using the contribution credit correction method. The accumulated contribu-     
tion credit is $10,800 (resulting from an increase in the minimum required contribution of $4,000 per year for two years,     
plus the additional $1,000 contribution for the 2020 plan year, again with no adjustment for interest). Under the contri-     
bution credit correction method, since the accumulated contribution credit is larger than the cumulative Overpayment, no     
corrective payments are required to be made to Plan H as a result of the Overpayment.     
     
 Example 28:     
     
Plan G is a multiemployer plan with a calendar-year plan year. In March, 2021, the enrolled actuary certifies that Plan G   
is not in critical, critical and declining, or endangered status in accordance with the rules of § 432. In June, 2021, the Plan     
Administrator discovers that for 12 months, Participant T had been receiving a benefit of $1,000 per month (which is under   
the limit in § 415(b)) instead of the $900 per month benefit provided under the terms of the plan.   
     
 Correction:     
     
The Plan Sponsor reduces Participant T's benefit to the corrected amount of  $900 per month effective July 1, 2021. The   
Plan Sponsor uses the funding exception correction method to correct the Overpayments. Under this correction method,     
because the most recent certification by Plan G's actuary states that Plan G is not in critical, critical and declining, or en   
dangered status, no corrective payment is required for Plan G as a result of the Overpayment..06 § 401(a)(17) Failures. (1)   Reduction of Account Balance Correction Method. The allocation of     
contributions or forfeitures under a defined contribution plan for a plan year on the basis of compen-   
sation in excess of the limit under § 401(a)(17) for the plan year may be corrected using the reduction     
of account balance correction method set forth in section 6.06(2) of this revenue procedure.   
     
(2)   Example.     
     
 Example 29:     
     
Employer J maintains a money purchase pension plan. Under the plan, an eligible employee is entitled to an employer     
contribution of 8% of the employee's compensation up to the § 401(a)(17) limit ($220,000 for 2006). During the 2006 plan     
year, an eligible employee, Employee W, inadvertently was credited with a contribution based on compensation above the     
§ 401(a)(17) limit. Employee W's compensation for 2006 was $250,000. Employee W received a contribution of $20,000     
for 2006 (8% of $250,000), rather than the contribution of $17,600 (8% of $220,000) provided by the plan for that year,     
resulting in an improper allocation of $2,400.     
     
 Correction:     
     
The § 401(a)(17) failure is corrected using the reduction of account balance method by reducing Employee W's account     
balance by $2,400 (adjusted for Earnings) and crediting that amount to an unallocated account, as described in section     
6.06(2) of this revenue procedure, to be used to reduce employer contributions in succeeding year(s)..07 Correction by Amendment. (1)   Section 401(a)(17) Failures. (a)   Contribution Correction      
 Method. In addition to the reduction of account balance correction method under section 6.06(2)     
of this revenue procedure, a Plan Sponsor may correct a § 401(a)(17) failure for a plan year under     
a defined contribution plan by using the contribution correction method set forth in this paragraph   
The Plan Sponsor contributes an additional amount on behalf of each of the other employees (ex-   
cluding each employee for whom there was a § 401(a)(17) failure) who received an allocation for   
the year of the failure, and amends the plan (as necessary) to provide for the additional allocation.   
The amount contributed for an employee is equal to the employee's plan compensation for the   
year of the failure multiplied by a fraction, the numerator of which is the improperly allocated   
amount made on behalf of the employee with the largest improperly allocated amount, and the de-   
nominator of which is the limit under § 401(a)(17) applicable to the year of the failure. The result-   
ing additional amount for each of the other employees is adjusted for Earnings. (See Example 30.)   
     
(b)   Example.   
     
 Example 30:   
     
The facts are the same as in Example 29.   
     
 Correction:   
     
Employer J corrects the failure under VCP using the contribution correction method by (1) amending the plan to increase   
the contribution percentage for all eligible employees (other than Employee W) for the 2003 plan year and (2) contribut-   
ing an additional amount (adjusted for Earnings) for those employees for that plan year. To determine the increase in the   
plan's contribution percentage (and the additional amount contributed on behalf of each eligible employee), the improperly   
allocated amount ($2,400) is divided by the § 401(a)(17) limit for 2006 ($220,000). Accordingly, the plan is amended to   
increase the contribution percentage by 1.09 percentage points ($2,400/$220,000) from 8% to 9.09%. In addition, each   
eligible employee for the 2006 plan year (other than Employee W) receives an additional contribution of 1.09% multiplied   
by that employee's plan compensation for 2006. This additional contribution is adjusted for Earnings.   
     
(2)   Hardship Distribution Failures. (a)   Plan Amendment Correction Method. The Operational   
Failure of making hardship distributions to employees under a plan that does not provide for hard-   
ship distributions may be corrected using the plan amendment correction method set forth in this   
paragraph. The plan is amended retroactively to provide for the hardship distributions that were   
made available. This paragraph does not apply unless (i) the amendment satisfies § 401(a), and   
(ii) the plan as amended would have satisfied the qualification requirements of § 401(a) (including   
the requirements applicable to hardship distributions under § 401(k), if applicable) had the amend-   
ment been adopted when hardship distributions were first made available (See Example 31.)   
     
(b)   Example.   
     
 Example 31:   
     
Employer K, a for-profit corporation, maintains a § 401(k) plan. Although plan provisions in 2005 did not provide for   
hardship distributions, beginning in 2005 hardship distributions of amounts allowed to be distributed under § 401(k) were   
made currently and effectively available to all employees (within the meaning of §1.401(a)(4)-4). The standard used to   
determine hardship satisfied the deemed hardship distribution standards in § 1.401(k)-1(d). Hardship distributions were   
made to a number of employees during the 2005 and 2006 plan years, creating an Operational Failure. The failure was   
discovered in 2007.   
     
 Correction:   
     
Employer K corrects the failure under VCP by adopting a plan amendment in 2007, effective January 1, 2005, to provide a   
hardship distribution option that satisfies the rules applicable to hardship distributions in § 1.401(k)-1(d). The amendment   
provides that the hardship distribution option is available to all employees. Thus, the amendment satisfies § 401(a), and   
the plan as amended in 2007 would have satisfied § 401(a) (including §1.401(a)(4)-4 and the requirements applicable to   
hardship distributions under § 401(k)) if the amendment had been adopted in 2005.   
     
(3)   Plan Loan Failures.   Plan Amendment Correction Method. The Operational Failure of (i) per-   
mitting plan loans to employees under a plan that does not provide for plan loans, or (ii) permit-   
ting a participant to obtain a number of loans that exceeds the number of loans permitted under   
the terms of the plan, may be corrected using the plan amendment correction method set forth in   
this paragraph. The plan is amended retroactively to provide for the plan loans that were made   
available. This paragraph does not apply unless (i) the amendment satisfies § 401(a), (ii) the plan   
as amended would have satisfied the qualification requirements of § 401(a) (and the requirements   
applicable to plan loans under § 72(p)) had the amendment been adopted when plan loans were   
first made available, and (iii) plan loans (including plan loans in excess of the number permitted   
under the terms of the plan) were available to either all participants, or solely to one or more par-   
ticipants who were nonhighly compensated employees.   
     
(4)   Early Inclusion of Otherwise Eligible Employee Failure. (a)   Plan Amendment Correction    
 Method. The Operational Failure of including an otherwise eligible employee in the plan who   
either (i) has not completed the plan's minimum age or service requirements, or (ii) has com-   
pleted the plan's minimum age or service requirements but became a participant in the plan on a   
date earlier than the applicable plan entry date, may be corrected by using the plan amendment   
correction method set forth in this paragraph. The plan is amended retroactively to change the   
eligibility or entry date provisions to provide for the inclusion of the ineligible employee to reflect   
the plan's actual operations. The amendment may change the eligibility or entry date provisions   
with respect to only those ineligible employees that were wrongly included, and only to those   
ineligible employees, provided (i) the amendment satisfies § 401(a) at the time it is adopted, (ii)   
the amendment would have satisfied § 401(a) had the amendment been adopted at the earlier time   
when it is effective, and (iii) the employees affected by the amendment are predominantly non-   
highly compensated employees. For a defined benefit plan, a contribution may have to be made to   
the plan for a correction that is accomplished through a plan amendment if the plan is subject to   
the requirements of § 436(c) at the time of the amendment, as described in section 6.02(4)(e)(ii).   
     
(b)   Example.   
     
 Example 32:   
     
Employer L maintains a § 401(k) plan applicable to all of its employees who have at least six months of service. The plan   
is a calendar year plan. The plan provides that Employer L will make matching contributions based upon an employee's   
salary reduction contributions. In 2007, it is discovered that all four employees who were hired by Employer L in 2006   
were permitted to make salary reduction contributions to the plan effective with the first weekly paycheck after they were   
employed. Three of the four employees are nonhighly compensated. Employer L matched these employees' salary reduc-   
tion contributions in accordance with the plan's matching contribution formula. Employer L calculates the ADP and ACP   
tests for 2006 (taking into account the salary reduction and matching contributions that were made for these employees)   
and determines that the tests were satisfied.   
     
 Correction:   
     
Employer L corrects the failure under SCP by adopting a plan amendment, effective for employees hired on or after Janu-   
ary 1, 2006, to provide that there is no service eligibility requirement under the plan.   
     
SECTION 3. EARNINGS ADJUSTMENT METHODS AND EXAMPLES.01 Earnings Adjustment Methods. (1)   In general. (a) Under section 6.02(4)(a) of this revenue   
procedure, whenever the appropriate correction method for an Operational Failure in a defined   
contribution plan includes a corrective contribution or allocation that increases one or more em-   
ployees' account balances (now or in the future), the contribution or allocation is adjusted for   
Earnings and forfeitures. This section 3 provides Earnings adjustment methods (but not forfeiture   
adjustment methods) that may be used by a Plan Sponsor to adjust a corrective contribution or   
allocation for Earnings in a defined contribution plan. Consequently, these earnings adjustment   
methods may be used to determine the Earnings adjustments for corrective contributions or al-   
locations made under the correction methods in section 2 and under the correction methods in   
Appendix A. If an Earnings adjustment method in this section 3 is used to adjust a corrective   
contribution or allocation, that adjustment is treated as satisfying the Earnings adjustment re-   
quirement of section 6.02(4)(a) of this revenue procedure. Other Earnings adjustment methods,   
different from those illustrated in this section 3, may also be appropriate for adjusting corrective   
contributions or allocations to reflect Earnings.   
     
(b) Under the Earnings adjustment methods of this section 3, a corrective contribution or alloca-   
tion that increases an employee's account balance is adjusted to reflect an "earnings amount" that   
is based on the Earnings rate(s) (determined under section 3.01(3)) for the period of the failure   
(determined under section 3.01(2)). The Earnings amount is allocated in accordance with section   
3.01(4).   
     
(c) The rule in section 6.02(5)(a) of this revenue procedure permitting reasonable estimates in   
certain circumstances applies for purposes of this section 3. For this purpose, a determination of   
Earnings made in accordance with the rules of administrative convenience set forth in this section   
3 is treated as a precise determination of Earnings. Thus, if the probable difference between an   
approximate determination of Earnings and a determination of Earnings under this section 3 is   
insignificant and the administrative cost of a precise determination would significantly exceed the   
probable difference, reasonable estimates may be used in calculating the appropriate Earnings.   
     
(d) This section 3 does not apply to corrective distributions or corrective reductions in account   
balances. Thus, for example, while this section 3 applies in increasing the account balance of an   
improperly excluded employee to correct the exclusion of the employee under the reallocation   
correction method described in section 2.02(2)(a)(iii)(B), this section 3 does not apply in reducing   
the account balances of other employees under the reallocation correction method. (See section   
2.02(2)(a)(iii)(C) for rules that apply to the Earnings adjustments for such reductions.) In addition,   
this section 3 does not apply in determining Earnings adjustments under the one-to-one correction   
method described in section 2.01(1)(b)(iii).   
     
(2)   Period of the Failure. (a)   General Rule. For purposes of this section 3, the "period of the fail-   
ure" is the period from the date that the failure began through the date of correction. For example,   
in the case of an improper forfeiture of an employee's account balance, the beginning of the period   
of the failure is the date as of which the account balance was improperly reduced. See section   
6.02(4)(f) of this revenue procedure.   
     
(b)   Rules for Beginning Date for Exclusion of Eligible Employees from Plan. (i)   General Rule.   
In the case of an exclusion of an eligible employee from a plan contribution, the beginning of the   
period of the failure is the date on which contributions of the same type (for example, elective de-   
ferrals, matching contributions, or discretionary nonelective employer contributions) were made   
for other employees for the year of the failure. In the case of an exclusion of an eligible employee   
from an allocation of a forfeiture, the beginning of the period of the failure is the date on which   
forfeitures were allocated to other employees for the year of the failure.   
     
(ii)   Exclusion from a § 401(k) or (m) Plan. For administrative convenience, for purposes of cal-   
culating the Earnings rate for corrective contributions for a plan year (or the portion of the plan   
year) during which an employee was improperly excluded from making periodic elective deferrals   
or after-tax employee contributions, or from receiving periodic matching contributions, the Plan   
Sponsor may treat the date on which the contributions would have been made as the midpoint   
of the plan year (or the midpoint of the portion of the plan year) for which the failure occurred.   
Alternatively, in this case, the Plan Sponsor may treat the date on which the contributions would   
have been made as the first date of the plan year (or the portion of the plan year) during which   
an employee was excluded, provided that the Earnings rate used is one half of the Earnings rate   
applicable under section 3.01(3) for the plan year (or the portion of the plan year) for which the   
failure occurred.   
     
(3)   Earnings Rate. (a)   General Rule. For purposes of this section 3, the Earnings rate generally is   
based on the investment results that would have applied to the corrective contribution or allocation   
if the failure had not occurred.   
     
(b)   Multiple Investment Funds. If a plan permits employees to direct the investment of account   
balances into more than one investment fund, the Earnings rate is based on the rate applicable to   
the employee's investment choices for the period of the failure. For administrative convenience, if   
most of the employees for whom the corrective contribution or allocation is made are nonhighly   
compensated employees, the rate of return of the fund with the highest rate of return under the   
plan for the period of the failure may be used to determine the Earnings rate for all corrective   
contributions or allocations. If the employee had not made any applicable investment choices, the   
Earnings rate may be based on the rate of return under the plan as a whole (that is, the average of   
the rates earned by all of the funds in the valuation periods during the period of the failure weight-   
ed by the portion of the plan assets invested in the various funds during the period of the failure).   
     
(c)   Other Simplifying Assumptions. For administrative convenience, the Earnings rate applicable   
to the corrective contribution or allocation for a valuation period with respect to any investment   
fund may be assumed to be the actual Earnings rate for the plan's investments in that fund during   
that valuation period. For example, the Earnings rate may be determined without regard to any   
special investment provisions that vary according to the size of the fund. Further, the Earnings   
rate applicable to the corrective contribution or allocation for a portion of a valuation period may   
be a pro rata portion of the Earnings rate for the entire valuation period, unless the application of   
this rule would result in either a significant understatement or overstatement of the actual Earnings   
during that portion of the valuation period.   
     
(4)   Allocation Methods. (a)   In General. For purposes of this section 3, the Earnings amount gen-   
erally may be allocated in accordance with any of the methods set forth in this paragraph (4). The   
methods under paragraph (4)(c), (d), and (e) are intended to be particularly helpful where correc-   
tive contributions are made at dates between the plan's valuation dates.   
     
(b)   Plan Allocation Method. Under the plan allocation method, the Earnings amount is allocated   
to account balances under the plan in accordance with the plan's method for allocating Earnings   
as if the failure had not occurred. (See Example 33.)   
     
(c)   Specific Employee Allocation Method.  Under the specific employee allocation method, the       
entire Earnings amount is allocated solely to the account balance of the employee on whose be-   
half the corrective contribution or allocation is made (regardless of whether the plan's allocation   
method would have allocated the Earnings solely to that employee). In determining the allocation   
of plan Earnings for the valuation period during which the corrective contribution or allocation is   
made, the corrective contribution or allocation (including the Earnings amount) is treated in the   
same manner as any other contribution under the plan on behalf of the employee during that val-   
uation period. Alternatively, where the plan's allocation method does not allocate plan Earnings   
for a valuation period to a contribution made during that valuation period, plan Earnings for the   
valuation period during which the corrective contribution or allocation is made may be allocated   
as if that employee's account balance had been increased as of the last day of the prior valuation   
period by the corrective contribution or allocation, including only that portion of the Earnings   
amount attributable to Earnings through the last day of the prior valuation period. The employee's   
account balance is then further increased as of the last day of the valuation period during which the   
corrective contribution or allocation is made by that portion of the Earnings amount attributable to   
Earnings after the last day of the prior valuation period. (See Example 34.)   
     
(d)   Bifurcated Allocation Method. Under the bifurcated allocation method, the entire Earnings amount   
for the valuation periods ending before the date the corrective contribution or allocation is made is   
allocated solely to the account balance of the employee on whose behalf the corrective contribution   
or allocation is made. The Earnings amount for the valuation period during which the corrective con-   
tribution or allocation is made is allocated in accordance with the plan's method for allocating other   
Earnings for that valuation period in accordance with section 3.01(4)(b). (See Example 35.)   
     
(e)   Current Period Allocation Method. Under the current period allocation method, the portion of the   
Earnings amount attributable to the valuation period during which the period of the failure begins   
("first partial valuation period") is allocated in the same manner as Earnings for the valuation period   
during which the corrective contribution or allocation is made in accordance with section 3.01(4)   
(b). The Earnings for the subsequent full valuation periods ending before the beginning of the val-   
uation period during which the corrective contribution or allocation is made are allocated solely to   
the employee for whom the required contribution should have been made. The Earnings amount for   
the valuation period during which the corrective contribution or allocation is made ("second partial   
valuation period") is allocated in accordance with the plan's method for allocating other Earnings for   
that valuation period in accordance with section 3.01(4)(b). (See Example 36.).02 Examples.   
     
 Example 33:   
     
Employer L maintains a profit-sharing plan that provides only for nonelective contributions. The plan has a single invest-   
ment fund. Under the plan, assets are valued annually (the last day of the plan year) and Earnings for the year are allocated   
in proportion to account balances as of the last day of the prior year, after reduction for distributions during the current   
year but without regard to contributions received during the current year (the "prior year account balance"). Plan contri-   
butions for 1997 were made on March 31, 1998. On April 20, 2000, Employer L determines that an operational failure   
occurred for 1997 because Employee X was improperly excluded from the plan. Employer L decides to correct the failure   
by using the Appendix A correction method for the exclusion of an eligible employee from nonelective contributions in   
a profit-sharing plan. Under this method, Employer L determines that this failure is corrected by making a contribution   
on behalf of Employee X of $5,000 (adjusted for Earnings). The Earnings rate under the plan for 1998 was +20%. The   
Earnings rate under the plan for 1999 was +10%. On May 15, 2000, when Employer L determines that a contribution to   
correct for the failure will be made on June 1, 2000, a reasonable estimate of the Earnings rate under the plan from January   
1, 2000 to June 1, 2000 is +12%.   
     
 Earnings Adjustment on the Corrective Contribution:   
     
The $5,000 corrective contribution on behalf of Employee X is adjusted to reflect an earnings amount based on the Earn-   
ings rates for the period of the failure (March 31, 1998 through June 1, 2000) and the earnings amount is allocated using   
the plan allocation method. Employer L determines that a pro rata simplifying assumption may be used to determine the   
Earnings rate for the period from March 31, 1998 to December 31, 1998, because that rate does not significantly understate   
or overstate the actual investment return for that period. Accordingly, Employer L determines that the Earnings rate for that   
period is 15% (9/12 of the plan's 20% Earnings rate for the year). Thus, applicable Earnings rates under the plan during   
the period of the failure are:   
     
           
     
     
     
     
     
If the $5,000 corrective contribution had been contributed for Employee X on March 31, 1998, (1) Earnings for 1998   
would have been increased by the amount of the Earnings on the additional $5,000 contribution from March 31, 1998   
through December 31, 1998 and would have been allocated as 1998 Earnings in proportion to the prior year (December   
31, 1997) account balances, (2) Employee X's account balance as of December 31, 1998 would have been increased by the   
additional $5,000 contribution, (3) Earnings for 1999 would have been increased by the 1999 Earnings on the additional   
$5,000 contribution (including 1998 Earnings thereon) allocated in proportion to the prior year (December 31, 1998) ac-   
count balances along with other 1999 Earnings, and (4) Earnings for 2000 would have been increased by the Earnings on   
the additional $5,000 (including 1998 and 1999 Earnings thereon) from January 1 to June 1, 2000 and would be allocated   
in proportion to the prior year (December 31, 1999) account balances along with other 2000 Earnings. Accordingly, the   
$5,000 corrective contribution is adjusted to reflect an Earnings amount of $2,084 ($5,000[(1.15)(1.10)(1.12)-1]) and the   
earnings amount is allocated to the account balances under the plan allocation method as follows:   
     
(a) Each account balance that shared in the allocation of Earnings for 1998 is increased, as of December 31, 1998, by its   
appropriate share of the Earnings amount for 1998, $750 ($5,000(.15)).   
     
(b) Employee X's account balance is increased, as of December 31, 1998, by $5,000.   
     
(c) The resulting December 31, 1998 account balances will share in the 1999 Earnings, including the $575 for 1999   
Earnings included in the corrective contribution ($5,750(.10)), to determine the account balances as of December 31,   
1999. However, each account balance other than Employee X's account balance has already shared in the 1999 Earnings,   
excluding the $575. Accordingly, Employee X's account balance as of December 31, 1999 will include $500 of the 1999   
portion of the earnings amount based on the $5,000 corrective contribution allocated to Employee X's account balance as   
of December 31, 1998 ($5,000(.10)). Then each account balance that originally shared in the allocation of Earnings for   
1999 (that is, excluding the $5,500 additions to Employee X's account balance) is increased by its appropriate share of the   
remaining 1999 portion of the earnings amount, $75.   
     
(d) The resulting December 31, 1999 account balances (including the $5,500 additions to Employee X's account balance)   
will share in the 2000 portion of the earnings amount based on the estimated January 1, 2000 to June 1, 2000 Earnings   
included in the corrective contribution equal to $759 ($6,325(.12)). (See Table 1.)   
     
TABLE 1   
CALCULATION AND ALLOCATION OF THE   
CORRECTIVE AMOUNT ADJUSTED FOR EARNINGS   
     
           
       
     
     
     
     
     
 1   $5,000 x 15%   
     
     
     
     
     
 2   $5,750($5,000 +$750) x 10%   
     
     
     
     
     
 3   $6,325($5,000 +$750 + $575) x 12%   
     
     
     
     
     
 4    After reduction for distributions during the year for which Earnings are being determined but without regard to contribu-   
tions received during the year for which Earnings are being determined.   
     
     
     
     
     
     
     
     
     
 Example 34:   
     
     
     
     
     
     
     
     
     
     
     
The facts are the same as in Example 33.   
     
     
     
     
     
     
     
     
     
     
     
 Earnings Adjustment on the Corrective Contribution:   
     
     
     
     
     
     
     
     
     
     
The earnings amount on the corrective contribution is the same as in Example 33, but the earnings amount is allocated   
using the specific employee allocation method. Thus, the entire earnings amount for all periods through June 1, 2000 (that   
is, $750 for March 31, 1998 to December 31, 1998, $575 for 1999, and $759 for January 1, 2000 to June 1, 2000) is allo-   
cated to Employee X. Accordingly, Employer L makes a contribution on June 1, 2000 to the plan of $7,084 ($5,000(1.15)   
(1.10)(1.12)). Employee X's account balance as of December 31, 2000 is increased by $7,084. Alternatively, Employee   
X's account balance as of December 31, 1999 is increased by $6,325 ($5,000(1.15)(1.10)), which shares in the allocation   
of Earnings for 2000, and Employee X's account balance as of December 31, 2000 is increased by the remaining $759.   
(See Table 2.)   
     
     
     
     
     
     
     
     
     
     
     
TABLE 2     
CALCULATION AND ALLOCATION OF THE     
CORRECTIVE AMOUNT ADJUSTED FOR EARNINGS     
     
     
     
     
     
     
           
     
     
     
     
     
     
 1   $5,000 x 15%   
     
     
     
     
     
 2   $5,750($5,000 +$750) x 10%   
     
     
     
     
     
 3   $6,325($5,000 +$750 + $575) x 12%   
     
     
     
     
     
     
 Example 35:   
     
The facts are the same as in Example 33.   
     
 Earnings Adjustment on the Corrective Contribution:   
     
The earnings amount on the corrective contribution is the same as in Example 33, but the earnings amount is allocated   
using the bifurcated allocation method. Thus, the Earnings for the first partial valuation period (March 31, 1998 to Decem-   
ber 31, 1998) and the Earnings for 1999 are allocated to Employee X. Accordingly, Employer L makes a contribution on   
June 1, 2000 to the plan of $7,084 ($5,000(1.15)(1.10)(1.12)). Employee X's account balance as of December 31, 1999   
is increased by $6,325 ($5,000(1.15)(1.10)); and the December 31, 1999 account balances of employees (including Em-   
ployee X's increased account balance) will share in estimated January 1, 2000 to June 1, 2000 Earnings on the corrective   
contribution equal to $759 ($6,325(.12)). (See, Table 3.)   
     
TABLE 3   
CALCULATION AND ALLOCATION OF THE   
CORRECTIVE AMOUNT ADJUSTED FOR EARNINGS   
     
           
       
     
     
     
 1   $5,000 x 15%   
     
     
     
 2   $5,750($5,000 + $750) x 10%   
     
     
     
 3   $6,325($5,000 +$750 +$575) x 12%   
     
     
     
 4   After reduction for distributions during the 2000 year but without regard to contributions received during the 2000 year.   
     
 Example 36:   
     
The facts are the same as in Example 33.   
     
 Earnings Adjustment on the Corrective Contribution:   
     
The earnings amount on the corrective contribution is the same as in Example 33, but the earnings amount is allocated   
using the current period allocation method. Thus, the Earnings for the first partial valuation period (March 31, 1998 to   
December 31, 1998) are allocated as 2000 Earnings. Accordingly, Employer L makes a contribution on June 1, 2000 to the   
plan of $7,084 ($5,000 (1.15)(1.10)(1.12)). Employee X's account balance as of December 31, 1999 is increased by the   
sum of $5,500 ($5,000(1.10)) and the remaining 1999 Earnings on the corrective contribution equal to $75 ($5,000(.15)   
(.10)). Further, both (1) the estimated March 31, 1998 to December 31, 1998 Earnings on the corrective contribution equal   
to $750 ($5,000(.15)) and (2) the estimated January 1, 2000 to June 1, 2000 Earnings on the corrective contribution equal   
to $759 ($6,325(.12)) are treated in the same manner as 2000 Earnings by allocating these amounts to the December 31,   
2000 account balances of employees in proportion to account balances as of December 31, 1999 (including Employee X's   
increased account balance). (See, Table 4.) Thus, Employee X is allocated the Earnings for the full valuation period during   
the period of the failure.   
     
TABLE 4   
CALCULATION AND ALLOCATION OF THE   
CORRECTIVE AMOUNT ADJUSTED FOR EARNINGS   
     
           
     
     
     
     
 1   $5,000 x 15%   
     
     
     
 2   $5,750 ($5,000 +$750) x 10%   
     
     
     
 3   $6,325 ($5,000 +$750 +$575) x 12%   
     
     
     
 4   After reduction for distributions during the year for which Earnings are being determined but without regard to contribu-   
tions received during the year for which Earnings are being determined.