Leveraged ESOP - s-corp - mandatory to exclude disqualified persons?

[Belgarath]

Dumb question - suppose you have a leveraged ESOP that you know will fail 409(p) testing in first and probably many subsequent years.

You can exclude these people. Is there any reason that the exclusion must be irrevocable? In other words, most plans now seem to have standard "non-allocation year" language to prevent a prohibited allocation. But is there any reason, from a plan design standpoint, why they can't just be put in an excluded class, and amend the exclusion out of the plan once they reach the point where 409(p) testing can pass?

Or, can they NOT be excluded, and just rely on the non-allocation year language so that they in effect just don't receive an allocation for as long as a non-allocation year would come into play?

[Belgarath]

P.S. - I'm envisioning an exclusion that might be something along the lines of the following:

For any Plan Year which is determined to be a “nonallocation year” as defined in Section 409(p) of the Internal Revenue Code and Section (XXXX) of the Plan, any employee who would be ineligible to receive an allocation due to their status as a “Disqualified Person” for such Plan Year.

The document is being drafted by an ERISA attorney, so this will be addressed by legal counsel, but in the meantime, if anyone has any thoughts/experience/opinions regarding this issue, I'd appreciate it. Anyone ever seen a plan with similar provision that has received a D-letter from the IRS?