Correcting Gateway Test Failures
One of the nondiscrimination tests that plans can use to confirm that its benefits aren’t discriminatory in favor of highly compensated employees is the "general test" (Internal Revenue Code 401(a)(4) and Treasury Regulation 1.401(a)(4)-8). As part of meeting the general test, plans can use one of two tests to pass the "gateway test" under Treas. Regs. 1.401(a)(4)-8(b)(1):
- the minimum allocation test (Treas. Regs. 1.401(a)(4)-8(b)(1)(vi))
- the broadly available allocation rates test (Treas. Regs. 1.401(a)(4)-8(b)(1)(iii))
The plan terms state which of the two gateway tests it will use for the testing. Each may provide different results.
Using a gateway test not specified in the plan
A plan may have a gateway test operational failure if the plan terms require using the broadly available allocation test but the plan used the minimum allocation rates test in operation.
Correcting using VCP
Following the Voluntary Correction Program (VCP) approved correction methods, plan sponsors may correct failures to operate qualified plans according to plan provisions by retroactively amending the plan to conform plan provisions to operations if the retroactive change complies with IRC Sections 401(a)(4), 410(b), and 411(d)(6).
Example: The plan sponsor used the minimum allocation test in the last 13 years of testing. In year 13, the plan sponsor signed a revised adoption agreement that should have mirrored the prior adoption agreement, but the revised adoption agreement was completed by the provider who mistakenly elected the broadly available allocation rates test instead of the previous plan selection of the minimum allocation test. This resulted in an operational failure for year 13. The plan sponsor followed plan terms in years 1 to 12 but not in year 13.
The plan sponsor made a VCP submission and requested to correct by retroactively amending the plan’s testing provisions to reflect the minimum allocation test for year 13. In the VCP submission, the plan sponsor included an email to the document provider instructing them to mirror current plan terms when preparing the adoption agreement in year 13.
Even though the retroactive amendment may cause a cutback in benefits because the minimum allocation formula used would cause some participants to receive a lesser allocation than what they would have been entitled to under the broadly available formula, based on the information provided, the retroactive amendment was approved. As a result, the plan sponsor was able to correct this gateway failure under VCP by a retroactive amendment to conform to the plan's operation in year 13.