Long time listener, first time caller...
One 501(c)(3) (Org A) that sponsors a 403(b) plan with a non-elective deferral is taking control of the board of another 501(c)(3) (Org B) that sponsors a 401(k), also with a non-elective deferral. The preferred outcome would be to continue to maintain the plans separately as the organizations will continue to exist and operate separately.
For 401(k) testing of elective deferrals, I see 26 C.F.R. § 1.410(b)-7(f) disregards 403(b)s for testing. Furthermore, 26 CFR § 1.410(b)-6(g)(3) allows 403(b) plans of a 501(c)(3) organization to be excluded for 410(b) purposes. However, one of the conditions is that "No employee of an organization described in section 403(b)(1)(A)(i) is eligible to participate in such section 401(k) plan or section 401(m) plan."
I also found this IRS language that would seem to suggest the intent was to allow one to keep these plans separate.
As for 403(b) testing, it seems optional whether to include the 401(k) employees.
Questions:
1) Since Org B is also a 501(c)(3), would it not meet the requirement under 26 CFR § 1.410(b)-6(g)(3)? I'm concerned that Org B's employees are eligible to participate in a 401(k), or would they be treated as separate?
2) How does 26 C.F.R. § 1.410(b)-7 relate to 1.410(b)-6(g)(3)?
3) Is it correct that for the testing of Org A's 403(b) Org B's employees could be excluded? Is there more guidance on this?
4) Since both plans include non-elective deferrals and it seems that the 403(b) employees cannot be excluded from testing for the non-elective deferral of the 401(k), is there any sense in even trying to exclude employees and avoid testing a controlled group?
