stxman

Sorry for not making that explicit. Each owner is 1/3 equity holder, so key. The 2 employees have zero equity, aren't officers, etc so I am assuming they are both non-key. That said, if the TH minimum must be met for the 1 non-participating, non-key employee, could a profit share contribution be used to cover that?

What would this do to top heavy requirements? As an example, a safe harbor plan with 5 participants composed of 3 owners and 2 employees, all of which are HCEs. The owners and 1 employee defer to get full company match of 4%, but 1 employee defers nothing, gets no company match. If the plan was amended to allow after tax 401k contributions and this feature was used, I understand it would still pass ADP/ACP (because there are no NHCEs), but would lose its TH protections. Would there be a mandatory 3% TH employer contribution to the non-deferring HCE?