Esop Plan Contribution Deposited Twice

[Guest ctbno1]

Plan Sponsor deposited a $200k contribution for the 2002 plan year in February of 2002, and then mistakenly made the same $200k deposit at the end of the year (December 27th, 2002).

The employer does not want to allocate the 2nd $200k deposit as a 2002 contribution (even though it would be fully deductible under 404).

Would this fit within the mistake of fact pursuant to 403©(2)(A)? The reason the deposit was made was due to their past history of making the deposit at the end of the year, and they failed to remember the early deposit they made in February, 2002.