Page:United States Statutes at Large Volume 102 Part 4.djvu/656

 102 STAT. 3626

PUBLIC LAW 100-647—NOV. 10, 1988 "(B) if there is no such designation, the calendar year. No period may be designated under subparagraph (A) unless the same period is designated with respect to all other plans of the employer of the same type. Any designation under subparagraph (A) may be changed only with the consent of the Secretary." (C) Subsection (c) of section 4976 of the 1986 Code (as added by title I) is amended— (i) by striking out "any plan year" in paragraph (1) and inserting in lieu thereof "any testing year (as defined in section 89(j)(13))"; and (ii) by striking out "such plan year" each place it appears in paragraph (2)(A) and inserting in lieu thereof "such testing year". (2) TIME FOR TESTING.—

(A) IN GENERAL.—Subsection (g) of section 89 is amended by adding at the end thereof the following new paragraph: "(6) TIME FOR TESTING.—

"(A) IN GENERAL.—Except as otherwise provided in this paragraph, the determination of whether any plan is a discriminatory employee benefit plan for any testing year shall be made on the basis of the facts as of the testing day. "(B) ADJUSTMENT WHERE BENEFIT OF HIGHLY COMPENSATED

EMPLOYEE CHANGES.—If the employer-provided benefit (actually provided or made available) of a highly compensated employee changes during the testing year by reason of any change in the terms of the plan or the making of an election by such employee, the amount taken into account as such employee's employer-provided benefit shall be adjusted to take into account such change and the portion of the testing year during which the changed benefit is provided (or made available). "(C) TREATMENT OF NON-HIGHLY COMPENSATED EMPLOYEES WHERE CHANGE IN PLAN.—Rules similar to the rules of

subparagraph (B) shall apply in the case of employees who are not highly compensated employees and who are affected by any change in the terms of the plan, except that the determination of such employees' employer-provided benefits (actually provided or made available) shall be determined as of the date after such change selected by the employer and permitted under regulations prescribed by the Secretary. "(D) TESTING DAY.—For purposes of this paragraph, the term 'testing day' means— "(i) the day designated in the plan as the testing day for purposes of this paragraph, or "(ii) if there is no day so designated, the last day of the testing year. "(E) LIMITATIONS.— "(i) DESIGNATION MUST BE CONSISTENT FOR ALL PLANS

OF SAME TYPE.—No day may be designated under subparagraph (D)(i) with respect to any plan unless the same day is so designated with respect to all other plans of the employer of the same type. "(ii) DESIGNATION BINDING.—Any designation under subparagraph (D)(i) shall apply to the testing year for

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