Top Heavy Required Aggregation Group 4 Year Lookback

[Guest Scott McHenry]

Company sponsors a 401(k) Profit Sharing Plan and is considering adopting a new Defined Benefit Plan.

Key employees will be excluded from 401(k) PS Plan on a prospective basis (have participated in 401(k) Plan previously). Plans will be tested separately for 401(a)(4) and 410.

Treas. Reg. §1.416-1 T-6 indicates that a required aggregation group includes each plan of the employer in which a key employee participants in the plan year containing the determination date, or any of the four preceding plan years.

Question: Do you see any wiggle room in taking the position that the "four preceding plan years" portion of this cite no longer applies (i.e. some portions of Treas. Reg. §1.416 are clearly outdated since EGTRRA)?