dissenting:

I respectfully dissent.

After very careful study, I have concluded that it was legally and factually unreasonable for the Commissioner not to accept Myron’s offer of retroactive cure for the inadvertent exclusion of her employees.

In the beginning, I have difficulty in comprehending the thoughts of either of my Brothers as to the supposed distinction between this case and Ray Cleaners, Inc., 27 T.C.M. 23 (1968). My Brother Sneed, concurring, writes that the plan scrutinized in Ray Cleaners did not operate discrimina-tively. This conclusion appears to me to ignore the facts of that case, at least insofar as those facts are reiterated by Judge Williams. In Ray Cleaners the Tax Court held, inter alia, that the pension plan should not have been disqualified under 26 U.S.C. § 401 (a)(4) due to discriminative operation simply because the taxpayer inadvertently failed to invite three eligible employees to participate. See id. at 28 . Thus, there is no question that the plan of Ray Cleaners discriminated in its operation. The only question was whether that discrimination constituted a fatal defect under the statute, and the court held that it did not.

My Brother Williams submits that there are three important distinctions between the facts of Ray Cleaners and the facts presented here:

Immediately, it should be emphasized that the second proposed distinction merely reformulates the first: If the plan operated properly for its first few years, then by definition all eligible employees must necessarily have been invited to participate. Thus, there are actually only two distinctions that could possibly be of substance, and both are wholly attributable to fortuitous circumstances. The time when the inadvertent discrimination occurs, either at the plan’s inception or at any time thereafter, is entirely fortuitous precisely because the error is inadvertent. Similarly, the fact that the instant plan included no low-salaried employees while the Ray Cleaners plan included two such workers is, it seems to me, another insignificant fortuity. I therefore cannot justify the inherent capriciousness of denying retroactive qualification depending upon the happenstance basis of fortuitous circumstances, particularly in light of the fact that the inadvertently omitted employees may be the ones primarily penalized.

The above notwithstanding, I cannot with firm conviction hold that Ray Cleaners offers convincing support that our court errs in affirming the judgment of the District Court. This is because the Tax Court did not expose its reasoning as to why it did not consider the inadvertent discrimination in Ray Cleaners to be fatally defective. Obviously, that which disturbs and troubles me about the Commissioner’s determination is the wholly different treatment accorded to plans with provisions defective because of conceded inadvertence. 26 U.S.C. § 401 (b); Aero Rental v. Commissioner, 64 T.C. 331 (1975). True, there is no comparable statutory provisions governing the cure *1148 of a plan’s operational defects; nonetheless, there remains the question whether the Commissioner acts reasonably by refusing to draw a seemingly appropriate analogy, i. e. considering the extremely liberal avenue for retroactive cure of a plan originating with defects due to inadvertence and applying that remedy in the context of operational defects arising from innocent inadvertence.

The formulation and implementation of pension plans involves highly complicated accounting and legal tasks; hence, inadvertent errors are unavoidable. If the Commissioner’s refusal to allow retroactive qualification of inadvertently defective plan provisions would unduly frustrate the legislative purpose to encourage the establishment of pension plans and, of more significance, primarily penalize the employees, see Aero Rental, supra, then I see no reason to believe that a similar attitude in respect to the retroactive qualification of a plan wherein an inadvertent and temporary operative defect has been discovered will not have similarly deleterious consequences. 1

Consequently, I would REVERSE.

. In this connection, I note some evidence in the record that the inadvertent exclusion of eligible employees is a common phenomenon, and that retroactive corrections are often implemented as a matter of course without any objection from the Revenue Service. (R.T., Vol. V at 178-84.)