Page:United States Statutes at Large Volume 100 Part 3.djvu/633

 PUBLIC LAW 99-514—OCT. 22, 1986

100 STAT. 2441

"(A) The plan benefits at least 70 percent of employees who are not highly compensated employees. "(B) The plan benefits— "(i) a percentage of employees who are not highly compensated employees which is at least 70 percent of "(ii) the percentage of highly compensated employees benefiting under the plan. "(C) The plan meets the requirements of paragraph (2). '(2) AVERAGE BENEFIT PERCENTAGE TEST.—

"(A) IN GENERAL.—A plan shall be treated as meeting the requirements of this paragraph if— "(i) the plan benefits such employees as qualify under a classification set up by the employer and found by the Secretary not to be discriminatory in favor of highly compensated employees, and "(ii) the average benefit percentage for employees who are not highly compensated employees is at least 70 percent of the average benefit percentage for highly compensated employees. "(B) AVERAGE BENEFIT PERCENTAGE.—For purposes of this paragraph, the term 'average benefit percentage' means, with respect to any group, the average of the benefit percentages calculated separately with respect to each employee in such group (whether or not a participant in any plan). "(C) BENEFIT PERCENTAGE.—For purposes of this paragraph— "(i) IN GENERAL.—The term 'benefit percentage' means the employer-provided contribution or benefit of an employee under all qualified plans maintained by the employer, expressed as a percentage of such employee's compensation (within the meaning of section 414(s)). "(ii)

PERIOD FOR COMPUTING PERCENTAGE.—At

the

election of an employer, the benefit percentage for any plan year shall be computed on the basis of contributions or benefits for— "(I) such plan year, or "(II) any consecutive plan year period (not greater than 3 years) which ends with such plan year and which is specified in such election. An election under this clause, once made, may be revoked or modified only with the consent of the Secretary. "(D) EMPLOYEES TAKEN INTO ACCOUNT.—For purposes of determining who is an employee for purposes of determining the average benefit percentage under subparagraph (B)"(i) except as provided in clause (ii), paragraph (4)(A) shall not apply, or "(ii) if the employer elects, paragraph (4)(A) shall be applied by using the lowest age and service requirements of all qualified plans maintained by the employer. "(E) QUALIFIED PLAN.—For purposes of this paragraph, the term 'qualified plan' means any plan which (without regard to this subsection) meets the requirements of section 401(a).

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