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If the employee was a participant on 1/1/21, then SF

There are differing opinions on this, but my opinion is yes. Under IRC 404(a)(6), the contribution deemed to have been made on the last day of the prior taxable year if it is made "on account of such taxable year." Clearly it was made on account of the prior plan year, but what does it mean to be made on account of the prior taxable year? The IRS doesn't elaborate, but the only thing that makes sense to me is that the employer deducts it on that year's tax return. Since they didn't do that, I would argue that it defaults to being deductible in the year contributed (assuming it meets all the other requirements to be deductible, of course).

I would view the changes agreed to between the employer and the union in the CBA to be proposals to amend the plan. Since this would be an optional or voluntary amendment to the plan, the IRS guidance on optional plan amendments not necessarily required by plan qualifications generally requires such amendments to be adopted by the end of the plan year in which they are to have been made effective. Accordingly, I would view this as a plan document failure which can be corrected via EPCRS. It would be helpful to know in what year the changes discussed in the CBA to be able to determine whether the change could be implemented via self-correction. If it is within 3 years of when the changes were agreed upon, then the plan could be self-corrected and thus, retroactively amended under the latest iteration of EPCRS.

That should be the first check. Concerning operational failure or not, it may be that the plan was followed but the CBA was not - although I think a union rep would have been all over that. If plan contribution language is flexible then maybe the only issue is vesting and maybe no one has been directly impacted yet, hence so material conflict between operation and CBA. The 2018 thread Lois provided has a lot of positions/arguments/disagreements but no true consensus, although I think most thought the plan document must govern. If you have nothing else to do this afternoon you can read it but otherwise let's cut to the chase - if the plan does not currently have language that incorporates for CBA then get it amended ASAP to comply with CBA.

This 2018 discussion of the same question might be helpful.

I'm a little confused - you say that the plan was operated according to its terms, so there's no operational failure. Yet it sounds like the plan was NOT operated according to its terms, (even though it was more generous) according to your first paragraphs. Based on what you've presented, I'd say that there is an operational error, so the full range of allowable corrections under EPCRS should be available to you, as appropriate under the specific circumstances. One question - sometimes plans contain a clause in the contribution section to the effect that contributions to union employees will be made under the terms if the current CBA - so were some of these changes already automatically included?

87,000 new IRS agents ... (just sayin') 😀