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I've never heard of such language before, but that doesn't mean it isn't possible. so lets say I make 2 groups. those with less than 5 years and those with 5 or more years. It sound like anyone with less than 5 years who deferred gets a set amount of match...e.g. $500 and then anyone who deferred with 5 or more years gets a set amount...e.g. $1000 in addition to the ACP test you also have to run a BRF test. but maybe someone else has run such a plan before and has a better idea than I do. of course you could also say 'no match this year"

And operationally, this is the only thing that makes sense, because if you have a payment due in the last quarter and wait until the end of the first Q to determine if it is deemed, and in fact it is...your 1099-R is late if you want to do it retroactively.

And, by the way, check and double-check everything this "consultant" says because if he or she is really describing a rate group test failure as a 410(b) failure you have been put on notice!!!

1.72(p)-1 Q&A 10 addresses the effect of the cure period and gives an example. The regs aren't precise, but the example clearly says the deemed distribution happens at the end of the cure period.

I stand corrected and must admit to being too vague. While it is permissible to totally remove participation to the later of the new eligibility requirements and new entry dates, I've not experienced any plans making such an election to the extent they didn't grandfather employees who were already participants in the plan.