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section 1.401(k)-1(b)(4)(iii)(B) last sentence Similarly, an employer may not aggregate a plan (within the meaning of section 1.410(b)-7(b) using the ADP safe harbor provision of section 401(k)(12) and another plan using the ADP test of section 401(k)(3). or if Willy Wonka rewrote the regs about trying to combineg a safe harbor with a non-safe harbor plan Wonka: [angrily] Wrong, sir! Wrong! Under section 37B of the contract signed by him, it states quite clearly that all offers shall become null and void if - and you can read it for yourself in this photostatic copy - "I, the undersigned, shall forfeit all rights, privileges, and licenses herein and herein contained," et cetera, et cetera... "Fax mentis, incendium gloria cultum," et cetera, et cetera... Memo bis punitor delicatum! It's all there! Black and white, clear as crystal! You have one safe harbor plan and another non-safe harbor plan., so you get... NOTHING combined!!! You lose! GOOD DAY, SIR! [returns to work]

Now if you can train oompa loompas to do ADP testing...that would make everyone's life easier.

I'll answer the same way as I did above EPCRS Appendix A .05 (2)(g) says (g) The methods for correcting the failures described in this section .05(2) do not apply until after the correction of other qualification failures. Thus, for example, if, in addition to the failure of excluding an eligible employee, the plan also failed the ADP or ACP test, the correction methods described in section .05(2)(b) through (f) cannot be used until after correction of the ADP or ACP test failures. For purposes of this section .05(2), in order to determine whether the plan passed the ADP or ACP test, the plan may rely on a test performed with respect to those eligible employees who were provided with the opportunity to make elective deferrals or after-tax employee contributions and receive an allocation of employer matching contributions, in accordance with the terms of the plan, and may disregard the employees who were improperly excluded. ............................... so does the term 'may' be it is optional, you can include the people and rerun the test? I don't think so - there is no mention anywhere of rerunning the tests. The problem with the English language is 'may' can be understood different ways. there are other times in the regs in which 'may' is not meant to be understood as optional, but rather 'normally you can't do this, but in this situation you are allowed (and in fact you must do this)' somewhere in the ERISA Outline book is a discussion on the useof 'may', not in regards to this issue but another. maybe it was related match, the regs say they may be forfeited. not that it is optional, but rather, even if it was 100% vested, it may be forfeited anyway to be in compliance with other rules.

EPCRS Appendix A .05 (2)(g) says (g) The methods for correcting the failures described in this section .05(2) do not apply until after the correction of other qualification failures. Thus, for example, if, in addition to the failure of excluding an eligible employee, the plan also failed the ADP or ACP test, the correction methods described in section .05(2)(b) through (f) cannot be used until after correction of the ADP or ACP test failures. For purposes of this section .05(2), in order to determine whether the plan passed the ADP or ACP test, the plan may rely on a test performed with respect to those eligible employees who were provided with the opportunity to make elective deferrals or after-tax employee contributions and receive an allocation of employer matching contributions, in accordance with the terms of the plan, and may disregard the employees who were improperly excluded. so does the term 'may' be it is optional, you can include the people and rerun the test? I don't think so - there is no mention anywhere of rerunning the tests. The problem with the English language is 'may' can be understood different ways. there are other times in the regs in which 'may' is not meant to be understood as optional, but rather 'normally you can't do this, but in this situation you are allowed (and in fact you must do this)' somewhere in the ERISA Outline book is a discussion on the term 'may' - not in regards to this issue but another one. maybe it was in the case of related match to an ADP failure. the regs say the related match may be forfeited. not to mean it is optional but you don't have to, but rather, even if the match was 100% forfeited you are permitted to forfeit it to be in compliance with other rules.