Retroactive 2006 match amendment?

[Guest FAQ]

Facts: Company A and B are part of a controlled group that sponsors a single 401(k) plan. There are two separate lines of business, and the company qualifies for QSLOB status but has not yet declared as a QSLOB.

The Plan states in the section regarding the employer contribution formula that "For each Plan Year, the Employer shall contribute to the Plan ... on behalf of each Participant who is eligible to share in matching contributions for the Plan Year, a discretionary matching contribution equal to a uniform percentage of each such Participant's Deferred Compensation, the exact percentage, if any, to be determined each year by the Employer ..." A participant is eligible for a match if he has attained age 21. Companies A and B are both "Employers" under the plan.

Company A is doing well and wants to contribute a match for 2006. Company B cannot afford to. In order to contribute a match for one group and not the other, I believe the plan's match formula or match eligibility provision would have to be amended (otherwise, under the above formula, all participants would be entitled to the match once the percentage is declared).

Question: can a plan be amended retroactively to revise a matching formula -- i.e. to state that the match can be provided to employees of one Employer and not the other? Something tells me it's too late to amend to do so for 2006.

Thanks in advance for any thoughts.

[Blinky the 3-eyed Fish]

Something is correct.

[namealreadyinuse]

If there is no LDY requirement, it was probably too late as soon as an employee in the less profitable group earned 500 hours of service, so December 31, probably wasn't relevant, fyi.

Couldn't they add an entirely new contribution type, like profit sharing before March 15th, only for the favored group?