Top Heavy Safe Harbor Plan with early eligibility for deferrals only

[Brenda Wren]

OK, what's the latest here? I've searched and read many historical threads on this topic, but cannot ascertain for sure whether this is a poor plan design or not. Is a top heavy plan required to provide top heavy minimums to otherwise excludable employees who are allowed to defer, but are not receiving the safe harbor contribution? I believe the argument is based on the definition of "solely safe harbor" and whether or not you can claim that status since you have participants in the plan not receiving the safe harbor contribution. What is Sal's latest position?

[R. Butler]

It is my understanding the "top-heavy pass" available to ceratin 401(k) safe harbor plans is not available to the Plan design you describe. That was Sal's view in the 2002 edition of the ERISA Outline book. We don't have the 2003 edition, but I've seen nothing that to suggest a reason for a change in that position.