safe harbor 401(k) to traditional 401, but wants to use safe harbor match formula

[Lori H]

ok, an employer in 2003 was safe harbor, they amended the plan to rescind safe harbor provisions effective 1-1-04. this was due to the fact that the board of directors did not think the money would be there to fund the safe harbor match. the plan is at this time a trad. 401k with a dollar for dollar match up to the first one percent deferred. the board now feels that they will be able to make their numbers this year and they want to make the plan "whole" by funding the match as if it was a safe harbor plan for 2004. i know that even if this is ok, they would still be subject to non-discrimination requirements. my question is, is the safe harbor match outside a "safe harbor" plan discrimnatory? can they decide later in the year to give the additional funds to the participants? seems to me the government would not mind them increasing employee pensions.

thanks

[Archimage]

As you stated, this would not be a true safe harbor match and the plan would still be subject to the ADP/ACP tests. I am assuming that the plan doc has a discretionary match provision. Why not incorporate this as your discretionary match?

[Blinky the 3-eyed Fish]

my question is, is the safe harbor match outside a "safe harbor" plan discrimnatory?

Your ACP test will give you the answer.