Correction by Plan Amendment - Rev. Proc. 2021-30

Has anyone used self-correction under the new Rev. Proc. 2021-30 for a correction by plan amendment that only affects HCEs?

We have a 403(b) plan document that excludes highly compensated employees from eligibility for purposes of matching and nonelective contributions. In 2016 the employer requested an amendment to the plan document to remove the eligibility exclusion for HCEs to receive matching contributions. Consistent with the requested amendment, the employer began making matching contributions for HCEs but cannot find a record that the plan amendment was ever signed. It has only impacted 1-3 HCEs in each year, and the dollars involved are relatively small in comparison to total matching contributions and plan assets.

Assuming self-correction is otherwise available, it does not seem clear from 4.05 that this could not be corrected by a retroactive plan amendment outside of VCP.

If you meet the 401(m), 410(b) and 1.401(a)(4)-4 tests (BRF test for rates of match) for those years, looks like you can correct by SCP based on 4.05(2)(a). 

Though there is a rule about the nondiscriminatory timing of plan amendments under 1.401(a)(4)-5, I don't think removing a previous exclusion of HCEs is necessarily discrimination in favor of HCEs (it's really just removing discrimination in favor of NHCEs) - except perhaps if there was something else discriminatory about that particular timing .