HCE Top-Paid Group Election Consistency Rule Violation

[Alf]

Will the IRS let us fix a problem with the HCE Top-Paid Group Election Consistency Rule by plan amendment?

I know it is pretty obscure, but here goes:

Employer sponsors two 401(k) plans for different groups. Demographically, they need to make the top-paid group election to pass testing. The plan that wiould pass without the election has specifically incorporated the election in the document. The plan that needs the election does not mention the top-paid group election. We understand that all plans of the employer need to make the election and we want to amend the non-electing document to correct the problem, but can't get our hands around what the IRS would do with a VCP filing requesting apporval of a retroactive amendment. The problem goes back to the GUST restatement.

Do we file anonymously requesting plan amendment adding the election, hide out and bury the problem in the EGTRRA round of changes, or something in between?

[Guest smckinlay]

I noticed it's been a couple of years since this post, so I'm hoping someone may have new ideas on this. I am running into the same problem with a client of mine. Thanks for your help.