Contingent safe harbor language

[Guest erisa.com]

I'm looking for some help on a plan document issue related to a safe-harbot 401(k) plan. As simply as I can state the question: Is it permissable to have a plan document which includes a "contingent" safe harbor feature and which, therefore, does not have to be amended, from time to time, to invoke or deactivate the safe harbor approach? I'm thinking along the lines of language that is "activated" or "deactivated," if you will, by, for example the delivery of the safe harbor notice(s). Any thoughts on this approach would be appreciated. Reference to any such "approved" language would be appreciated even more. Apologies if this has been hashed out before.

Thanks!

Individual replies to mhughes@rhoadeslawfirm.com or 412-765-2449

[Bob R]

The position taken at the Cincinnatti Key District Office is that you can't do it that way. The only refernce is to compare the statuory language in 401(k)(12) to the statutory language for SIMPLE Plans (where you can implement the safe harbor contribution through the notice to employees).