Top heavy minimum included in testing?

[Sully]

A participant in a top-heavy cross-tested profit sharing plan who works less than 1,000 hours and is employed on the last day of the plan year is required to receive the employer top heavy minimum contribution.

Are we required to include this participant in the non-discriminatory classification test and the average benefits percentage test?

Would it make a difference if he worked less than 500 hours?

[AndyH]

1. Yes, unless.

2. No, unless.

Unless is unless he could be excluded from the test on the basis that he was an "otherwise excludable employee", i.e. under 21, never worked Year of Service (including 1,000 hours), in plan because it has eligibility more liberal than allowed. Such people could be tested separately, and if there are no such HCEs, they automatically pass.

[Blinky the 3-eyed Fish]

And don't forget that unless he is part of the unless group Andy describes, he must receive the gateway minimum contribution and the document must also have language that allows him to get it.