Page:United States Statutes at Large Volume 102 Part 4.djvu/657

 PUBLIC LAW 100-647—NOV. 10, 1988

102 STAT. 3627

which made and all subsequent years unless revoked with the consent of the Secretary. "(F) SPECIAL RULE FOR MULTIPLE EMPLOYER PLAN.—In the

case of a multiemployer plan or any other plan maintained by more than 1 employer, each employer may, subject to such rules as the Secretary may prescribe, elect its ovm testing year under paragraph (13) of subsection (j) and its own testing date under this paragraph." (B) DESIGNATIONS FOR 1989 NOT BINDING.—Any designa- 26 USC 89 note. tion of a testing day for a year beginning in 1989 shall be disr^arded in determining the day which may be designated as the testing day for years beginning sdfter 1989. (3) SAMPUNG.—Subsection (g) of section 89 of the 1986 Code is amended by adding at the end thereof the following new paragraph: "(7) SAMPLING.—For purposes of determining whether a plan Discrimination, is a discriminatory employee benefit plan (but not for purposes prohibition. of identifying the highly compensated employees who have a discriminatory excess or the amount of any such excess), determinations under this section may be made on the basis of a statistically valid random sample. The preceding sentence shall apply only if— "(A) the sampling is conducted by an independent person in a manner not inconsistent with r^ulations prescribed by the Secretary, and "(B) the statistical method and sample size result in a 95 percent probability that the results will have a margin of error not greater than 3 percent." (4) SPECIAL VALUATION RULE FOR MULTIEMPLOYER PLANS.—

Paragraph (3) of section 89(g) of the 1986 (}ode is amended by adding at the end thereof the following new subparagraph: "(E) SPECIAL RULE FOR MULTIEMPLOYER PLANS.—

"(i) IN GENERAL.—Except as provided in r^ulations and clause (ii), an employer may treat the contribution such employer makes to a multiemployer plan on behalf of an employee as the employer-provided benefit of such employee under such plan, "(ii) ADJUSTMENT.—K—

"(I) the allocation of plan benefits between highly compensated employees and other employees under a multiemployer plan (or within either of such groups) varies materially from the allocation of employer contributions to such plan, or "(n) the employer contributions relate to benefits of different types, the employer-provided benefit determined under clause (i) shall be appropriately adjusted to take into account such material variation or such employer contribution, "(iii) EXCEPTION FOR PROFESSIONALS.—This subparagraph shall not apply to any employer maintaining a multiemployer plan if such employer makes contributions to such plan on behalf of any individual performing services in the field of health, law, engineering, architecture, accounting, actuarial science, financial services, or consulting or in such other field as the Secretary may prescribe." (5) EXCLUDED EMPLOYEE REQUIREMENTS.—

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