Do 402(g) refunds count as ER contr for Key EEs when determining Top H

[Guest GMedley]

We have a plan where the two Key EEs also participate in outside deferred compensation arrangements. This year, they've asked us to refund their entire employee contribution, as they've evidently contributed $10,500 into another 401(k) or 403(B) plan. This will require that we forfeit their entire match amount as well. Thus they will effectively have no contribution for 2001.

Does anyone think they could then get away with not funding their 3% minimum contribution? They are a top heavy plan. Generally, I would count an excess deferral as a contribution, but I see no specific reference to Top Heavy minimum determination.

Thanks.

Grant