OPINION
SPENCER WILLIAMS, District Judge:Appellant Myron is sole shareholder, chairman of the board, president, and general manager of Myron’s Ballroom, Inc., and Myron’s Enterprises, Inc. The two corporations submitted a Joint Retirement Income Plan to the Internal Revenue Service in 1967. The Plan, as submitted and approved, was sound. However, as administered it did not meet the requirements of 26 U.S.C. Section 401 and 26 C.F.R. Sections 1.401-1 and 1.401-3.
When the Internal Revenue Service audited the two corporations’ tax returns in 1969, it determined that the Plan discriminated in its operation because amounts contributed to it by the corporations had been allocated solely for the benefit of appellant taxpayer when in fact five additional employees were eligible for coverage. The IRS rejected appellant’s offer to cure the discrimination retroactively and included in appellant’s income for 1967 and 1968 those amounts which the corporations had contributed to the Plan on her behalf.
Appellant taxpayer exhausted her administrative appeals through the IRS and following affirmation by the Commissioner, paid the taxes and interest found to be due, filed a claim for refund, and initiated suit in the District Court. The District Court made an affirmative finding that the situation resulted from an honest mistake of which the taxpayer had no actual knowledge, but nonetheless, affirmed the Commissioner.
The issue on appeal is whether the District Court committed error when it affirmed the Commissioner’s decision not to allow tax deductions for the retroactive payments.
The Commissioner’s determination should not be set aside by the courts unless the taxpayer demonstrates that it was unreasonable, arbitrary or capricious. Loevsky v. Commissioner, 55 T.C. 1144 (1971), aff’d 471 F.2d 1178 (3rd Cir. 1973), cert. denied, 412 U.S. 919, 93 S.Ct. 2733, 37 L.Ed.2d 145 (1973).
Appellant cites Ray Cleaners, Inc. v. Commissioner, 27 T.C.M. 23 (1968) for the proposition that disqualification is not proper in situations where an inadvertent error causes employees to be omitted from coverage. However, the facts in that case differ significantly from the facts in the instant case. In Ray Cleaners, the plan had operated for two years without error. During those years three employees were covered, four declined to participate, and approximately twenty (20) employees were not eligible for coverage. In the third year of operation, three more employees became eligible but were inadvertently omitted from coverage. The important distinctions are that the Ray Cleaners plan had operated properly before the error occurred, that under the Ray Cleaners plan all seven (7) eligible employees were offered coverage initially, and that those employees actually covered included two who were low salaried.
While it might seem harsh to deny retroactive qualification of any plan where a claim of innocence has been accepted, this Court is not prepared to say that consideration of the degree of failure, even innocent failure in coverage is an improper basis for denying qualification.
The Commission has not and need, not set any inflexible standard for determining the degree of inadvertent error required for disqualification. He properly held that a plan may be disqualified retroactively when the degree of failure in cov*1147erage is extreme. The degree of failure here, where five eligible employees were omitted and the only person covered was the highly salaried manager who was also the sole shareholder of the corporation, is certainly that.
Affirm.