Failure to Make Fixed Profit Sharing Contribution

[Guest Grumpy456]

A DC/profit sharing plan (non-Money Purchase Plan) contains a fixed contribution formula (I know that's odd) equal to 10% of participants' aggregate pay. The contribution is allocated under a points formula.

For 2006, the employer contributed only 9% of participants' aggregate pay. For 2007, the employer didn't contribute anything--instead, it gave each participant a cash bonus equal to 10% of their pay. Had the 10% of participants' aggregate pay been contributed to the plan for 2007, then some would have received more and some less than they received as a bonus.

Is there an easy VCP option available for this client? If not, what are the options?

I guess the DOL's recent FAB 2008-1 provides some guidance for fiduciaries.