Erroneous Early Entry of Employee

[Jay3]

An employer allowed a participant (NHCE) to join the plan at age 19 and the eligibility age was age 21. The employee deferred in 2007 and 2008. We were not aware of this until now (2/2009). The employee's actual entry date should be 1/1/2009. I referenced 2008-35 I.R.B. and it says, "The amendment may change the eligibility or entry date provisions with respect to only those ineligible employees that were wrongly included, and....". I have a concern with amending the plan for one person when several others were excluded because of age (all NHCE's). Thanks.

[J Simmons]

That corrective amendment would not favor an HCE at the expense of NHCEs, so ought not be problematic from a discrimination point of view.