No NHCEs; discrimination testing deemed pass ?

[JAY21]

I have a situation where the emloyer has no non-highly compensated employees, but rather 10 highly Compensated Employees that includes the one sole (100%) owner. He wants to put in a cafeteria plan for dependent care expenses only, in which he the only Key Employee will NOT benefit in, only the other Highly Compensated Employees. Given there is NO non-highly compensated employees do I get a free pass on IRC 129(d)(2) HCE discrimination testing ? or is this a problem since I'd fail the 55% dependent care (IRC 129(d)(8)) test ? Thanks for any thoughts/opinions.

[oriecat]

Mathematically speaking, the 55% wouldn't fail, but it wouldn't pass either. If you try to divide by zero, the answer would be undefined.

What if you use the Top 20% option to determine the HCEs?