Use of "safety valve" provision of §1.401(a)(4)-3(C)(3) with respect to the general test for nondiscrimination in amount of benefits

[gle318612]

Has anyone experience with use of the "certain violations disregarded (aka "safety valve") " provisions as per the referenced citation in the Treasury Regulations? The testing population in our situation is in excess of 8,000 and 11 hce's are causing the test to fail. We realize that the appropriate use of this provision is pursuant to a facts and circumstances determination by the Commissioner. The situation would seem to support use of this provision based on the relevant factors found in §1.401(a)(4)-3©(3)(i-v). We've never used this provision before. We are in Cycle E (determination letter filing) of the 5-Year Remedial Amendment Cycle for Individually Designed Plans...thus if this provision is used, it will appear in the filing. Thus, we are seemingly left with 1) use this provision or 2) do a remediation impacting (increasing the benefits of) a small group of nhce's in order to pass.

Thanks for any general thoughts...relevant experience using this provision.