Section 85.12 - Plan Qualification(a) These plans, the benefits provided thereunder, or contributions made thereto, shall be in compliance with all applicable Code provisions and regulations promulgated thereunder, as amended from time to time, regarding nondiscrimination, eligibility, and plan qualification requirements.(b) In the event the plan administrator determines that any discrimination in favor of highly compensated employees, as defined in Internal Revenue Code §414(q) or under any applicable provision of the Code regarding discrimination, has occurred or may occur, the plan administrator shall be authorized to cause the election made by any participants to be modified to the extent necessary to avoid or cure such discrimination. Such participants participating herein shall be deemed, upon executing the requisite application for participation, to have expressly consented to any modification of the application and salary conversion agreement deemed necessary by the plan administrator to prevent discrimination from occurring.(c) Although these plans are intended to be fully qualified under the Code, neither the employer, the plan administrator, employees, the state of Texas, nor any agent or representative thereof, represents that these plans, the benefits provided thereunder, or contributions made thereto, at any particular point in time do not discriminate in favor of highly compensated employees, as determined in accordance with applicable provisions of the Code and regulations promulgated thereunder. The employer, the plan administrator, the state of Texas and any agent or representative thereof shall be held harmless by any employee, participant, their representatives, heirs, beneficiaries, administrators, or assigns from any and all tax liability of any nature that might arise by reason of these plans being deemed discriminatory at any time and in any regard or by reason of plan qualification requirements.(d) In the event any portion or all of a benefit or benefits becomes taxable hereunder, by reason of these plans being deemed discriminatory, such benefit shall be treated as received or accrued in the taxable year of the participant or key employee in which the plan year ends unless applicable law requires inclusion in income at some other time, in which case, such law shall be controlling.34 Tex. Admin. Code § 85.12
The provisions of this §85.12 adopted to be effective May 29, 2005, 30 TexReg 3022