When can you amend to exclude HCE from plan participation?

[MR]

Lets say you have a non-standardized prototype 401(k)/ps plan and the owners at this late date decide they do not want to share in this year's profit sharing contribution. They have already made 401(k) contributions and plan to continue through year-end. They can't waive participation, but can I amend the plan, effective 12-31-04 to exclude them from the plan? I could exclude all owners, just like Union employees, etc. The plan requires 1000 hours and year-end employment status in order to share and my concern is that amending to exclude them on the last day of the year would be a cut-back. A more expensive alternative, but one that I think would be more legit would be to amend to a New Comparability plan, putting the owners in their own group.

Any thoughts?

[R. Butler]

Does the document allow for different exclusions for each source? If so just amend to exclude owners from profit sharing source only.

[MR]

I like that, but what about the timing? I guess, since there's a last day requirement, nobody has "earned" anything until then, so we can change the rules before 12-31.

thanks,