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You quoted the proper passage in Pub 590, but you went on to say that...

If neither you nor your employer contribute to your 401(k) during a plan year that ends in the current year and your employer still lists you as covered on your W-2, you should fight it.

But the rule also talks about funds that are allocated to an employee's account. In plans that have a company match, for instance, the match is often vested over three years or so. If a plan member leaves the employer before being fully vested in the match, that portion that is not vested is allocted to all other plan members, whether they've made contributions in that year or not.

So, you could rightly come across a situation where the employee, having not made any contributions, sees the box for retirement plan checked on the W-2 for no other reason than there was an allocation of non-vested company matches. The employee will insist that the company is wrong, but in most cases the W-2 is correct.
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