- 20 - 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 thePage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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