What is the impact of catch-up elections on the general test?

[JDuns]

The proposed regulations under 414(v) indicate that catch-up contributions are disregarded for a number of tests, however, 401(a)(4) is not on that list.

My question is: can the catch-up contributions be disregarded when doing the general test?

[Blinky the 3-eyed Fish]

Yes.

[JDuns]

Do you have any authority for the opinion that the catch-up contribution is disregarded when performing the general test?

[E as in ERISA]

IRC Section 414(v)(3)(B)?

[MWeddell]

Also the in the proposed regulations released last fall under Code Section 414(v).

[JDuns]

Please forgive me if I am beating a dead horse but I am still not sure I agree.

I do agree that 414(v)(3)(B) states that a "plan shall not be treates as failing to meet the requirements of section 401(a)(4) ... by reason of the making of (or the right to make) such contributions.

So I agree that the code section would support the exclusion of catch-up contributions (but not any match attributable thereto) from the general test.

I am a little concerned that the regulations do not say that (or even imply it).

I note that Proposed regulation 1.414(v)-1(d)(3) (titled - "availability of CU contributions") states that the catch up contribution does not violate 1.401(a)(4)-4 "merely because the group of employees for whom the CU contributions are currently available." I read this reg. section as there is not a BRF issue when offering CU contributions.

The reference to 401(a)(4) is conspicuously missing from 1.414(v)-1(d)(2) "contributions not taking into account for certain nondiscrimination tests".