Frank Gant and Roberta Gant - Page 20

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          II. The Plans Fail to Meet the Requirements of Sec.                         
          401(a)(26)(A)                                                               
               Since we have held that the Pension Plan and Profit Sharing            
          Plan were both ongoing plans, the next subissue is whether the              
          plans failed to meet the requirements imposed by either section             
          401(a)(26) or 410(b).                                                       
               To satisfy the requirements of section 401(a)(26)(A), a plan           
          generally must benefit the "lesser of--(i) 50 employees of the              
          employer, or (ii) 40 percent or more of all employees of the                
          employer."  It has been stipulated that the plans excluded from             
          participation 51 of the 66 eligible employees for the plan year             
          ended June 30, 1991.  It has further been stipulated that only 15           
          eligible employees were participating in the plans for the plan             
          years ended June 30, 1991.  Forty percent of the 66 eligible                
          employees is 26 employees.  Since only 15 eligible employees were           
          participating and therefore benefiting under the plans, both                
          plans fail to meet the participation requirements of section                
          401(a)(26)(A).  Since the plans fail to meet the participation              
          requirements of section 401(a)(26), we need not consider whether            
          the plans meet the minimum coverage requirements of section                 
          410(b).                                                                     
          III.  Highly Compensated Employee                                           
               Section 402(b)(2) requires that if a plan fails to satisfy             
          section 401(a)(26), a highly compensated employee must include in           
          gross income his "vested accrued benefit" determined as of the              




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