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First Plan year: 401(k)(3)(E) and then switch to current year


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98-1 discussed the first plan year and states that if a plan (other than a successor plan) uses the prior year testing method and for its first plan year the plan determines the ADP or ACP for NHCEs for the prior plan year using the ADP or ACP for NHCEs for that first plan year (in lieu of 3%), then the use of the prior year testing method in the next testing year is not treated as a change in testing method.

my plan has checked off current year election for the first year. However, they will be using 401(k)(3)(E) which provides that, for the first plan year of any plan (other than a successor plan) that uses the prior year testing method, the ADP for NHCEs for the prior year is 3%, or, if the employer elects, is the ADP for NHCEs for that first plan year. in the second year they will use current year testing.

am i operating correctly under 98-1 or should my plan have elected the prior year method for year 1 to be consistant?

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