At the risk of being a bit too "geeky" here, it is worth noting that a loan must be "bona fide" to be treated as a loan under IRC §72 (see Treas. Reg. §1-72(p)-1 Q&A 17). If the business owner took the funds with the intent to not pay them back, then there was no bona fide loan and the plan has an operational failure and a failure to withhold taxes on a distribution. Given that a HCE/Key EE was the party that took a distribution in violation of the plan's terms (and probably in violation of the 401(k) distribution restrictions), this could be a qualification issue.