employer becomes controlled group member-does sungard language require contribution?

[Floridaattorney]

Employer's 100% owner purchased 100% of another corporation 10 years ago without telling Tpa. so, employer and other corporation have been part of a brother sister controlled group since then. both companies have 401k plans but, the plans are different. one is safeharbor 401k , the other is regular 401k.

employer A has matched contributions to plan A. Employer B has matched-at a different level-contributions to plan B. neither employer has affirmatively agreed to participate in the other's plan.

the two companies clearly have to test to make sure that they have passed and will pass testing on a group basis. However, plan A has the following language from sungard volume submitter. Would 1.30© below require that the employees of B should be considered participating employees of the A plan after the 410(b)(6)© grace period runs out?

1.30 "Eligible Employee" means any Employee, except as provided below, and except as provided in any other particular

provision for the limited purposes of that provision (e.g., ADP test). The following Employees shall not be eligible to partiCipate in this

Plan:

1. Employees of Affiliated Employers, unless such Affiliated Employers have specifically adopted this Plan in writing.

(b) An individual shall not be an Eligible Employee if such individual is not reported on the payroll records of the Employer as a

common law employee. In particular, it is expressly intended that individuals not treated as common law employees by the

Employer on its payroll records and out-sourced workers, are neither Employees nor Eligible Employees, and are excluded from

Plan participation even if a court or administrative agency determines that such individuals are common law employees and not

independent contractors. However, this paragraph shall not apply to partners or other Self-Employed Individuals unless the

Employer treats them as independent contractors.

© Unless or until otherwise provided, Employees who became Employees as the result of a "Code Section 410(b)(6)©

transaction" will not be Eligible Employees until the expiration of the transition period beginning on the date of the transaction and

ending on the last day of the first Plan Year beginning after the date of the transaction. A Code Section 410(b)(6)© transaction

is an asset Of stock acquisition, merger, or similar transaction involving a change in the Employer of the Employees of a trade or

business that is subject to the special rules set forth in Code Section 410(b)(6)©.

[PensionPro]

employees of employer b are excluded from plan a unless employer b adopts plan a

"The following Employees shall not be eligible to participate in this

Plan:

1. Employees of Affiliated Employers, unless such Affiliated Employers have specifically adopted this Plan in writing."