Similar Plans w/in 3 years of Plan Termination

[Guest thefades]

Under 1.409A-3(j)(4)(ix)©(5), after terminating a plan, the employer may not adopt a new plan "that would be aggregated" with the terminated plan "if the same [employee]" participated in both plans, at any time w/in 3 years following termination.

My question is how this language is interpreted. I have seen some practictioners say that you use a "hypothetical employee" standard, such that even if an employee that did not participate in the terminated plan now participates in the new (similar) plan w/in the 3 year prohibited period, the plan termination is not effective and is deemed a prohibited acceleration for all participants under 409A.

This interpretation seems like a huge stretch to me, and I dont see the basis for it. Does anyone know of any guidance on this issue, or have an opinion as to how this language should be interpreted?

Thanks very much in advance.

[gc@chimentowebb.com]

My understanding is that the Plan termination rule applies to all plans of the same type in the controlled group. If that were not the case, it would be very easy to circumvent the anti-acceleration rule.