Catchup only

[ombskid]

Can key employees make only 50+ catchup contributions without triggering the need for either TH minimum or safe harbor contributions for non-key?

[Tom Poje]

deferrals are treated as a catch-up if they violate one of the limits -

402(g)

415 limit

or plan imposed limit.

in addition, a plan that fails ADP testing can treat those amounts as catch-up.

so you don't really 'make' a catch-up - if you haven't violated one of the limits, then you have no catch up.

If I understand things correctly you could have a plan limit of 0% deferrals by key employees and that would get around the issue

[Belgarath]

Oooh, I don't know. This doesn't smell so good. Depending upon facts and circumstances, there might not be effective availablity for the NHC, depending upon the limits that apply to them. I'd look really, really hard at this before giving a go-ahead. Although non-uniform plan limits are permitted under 1.414(v)-1(e), I don't feel comfortable with pushing the edge of the envelope to this extent. This could be an end run around proper ADP testing. I'm also conservative by nature on these questions, however, and perhaps unnecessarily so.

[austin3515]

I've done this. I can't see how limiting the HCE's to zero discriminates in their favor. LEt's say he/she was not limited to zero and the ADP test was failed--the HCE would be able to retain AT LEAST the catch-up amount in the Plan, if not more. Okay, I suppose it might help another HCE keep money in the Plan, because of the ordering of refunds, etc. but I fall back on my original comment (i.e., limiting HCE's to zero discriminates against the HCE's).

[Guest mjb]

Under reg. 1.416-1 M-20 any elective contributions by key employees are taken into account for determining the minimum required contributions for non key employees. Since catch up contributions are elective contributions they will be counted in determining the amount of the minimum required contribution for a top heavy plan. (5K contribution by key ee earning 165k =3% TH contribution) I dont understand how a 0% deferral limit would not trigger the need for a TH minimum contribution if the key ee makes only catch up contributions.

[wsp]

Under reg. 1.416-1 M-20 any elective contributions by key employees are taken into account for determining the minimum required contributions for non key employees. Since catch up contributions are elective contributions they will be counted in determining the amount of the minimum required contribution for a top heavy plan. (5K contribution by key ee earning 165k =3% TH contribution) I dont understand how a 0% deferral limit would not trigger the need for a TH minimum contribution if the key ee makes only catch up contributions.

Better take that up with Mr. Tripodi.

Just looked at the Outline Book and he says the catchup contributions are disregarded. He cites authority as 414(v)(3)(b) which says that making of such contributions will not cause a plan to fail to satisfy IRC 416. He also sources the proposed Treas Regs. 1.414(v)-1(2)(iv).

[masteff]

Further, the final regs, published here: http://www.irs.gov/pub/irs-irbs/irb03-37.pdf, on page 13 explicitly address that catch-up is excluded from a variety of limits and non-discrimination tests, including ADP and top heavy.

[Guest mjb]

While I agree that catch ups for the current yr are exempt from 416, the cite is 1.414(v)-1(d)(3). The proposed regs were replaced by final regs in 2003

[Belgarath]

I'd like to briefly resurrect this topic, as a similar question came up again today.

I think that the last sentence in 1.414(v)-1(e)(1)(i) would prevent a plan from having an employer provided limit of 0% for the HC (who are over 50 and catch-up eligible) while providing a higher deferral limit for the NHC. That final sentence, which must of course be read in conjunction with the rest of the section, says, "However, a plan may not provide lower employer-provided limits for catch-up eligible participants."

If you disagree, could you discuss your reasoning, as I don't quite see how you get around this section. Additionally, is anyone aware of any discussion from the podium at any conferences? Thanks!

[Guest fender5150]

"I think that the last sentence in 1.414(v)-1(e)(1)(i) would prevent a plan from having an employer provided limit of 0% for the HC (who are over 50 and catch-up eligible) while providing a higher deferral limit for the NHC. That final sentence, which must of course be read in conjunction with the rest of the section, says, "However, a plan may not provide lower employer-provided limits for catch-up eligible participants."

If you disagree, could you discuss your reasoning, as I don't quite see how you get around this section. Additionally, is anyone aware of any discussion from the podium at any conferences? Thanks!"

I think the proposal was to limit Key employees to 0% (not catch-up eligable participants).

The last sentence doesn't address limiting contributions of key employees. I don't read it as a free pass for key employees who happen to be over 49 - though I see how it could be interpreted that way.

[Belgarath]

Let's assume that the only HC/Key employees are 50+, and are, by sheer coincidence of course, the only employees who are 50+ and therefore the only employees eligible for catch-up. I think you are agreeing that you can't provide a deferral limit of 0% for them, and a higher limit for all the NHC?

Thanks!

[austin3515]

We're discussing providing limits on owners, and not catch-up eligible participants. The fact that they are also catch-up eligible is a coincidence.

Based on your interpretation of the reg, the employer wouldn't be able to restrict catch-up contributions of HCE's in order to avoid failing the ADP test. I think we would all agree that is not the case.

It appears to me that the intent of this provision is that the sponsor should not be able to negate the catch-up contribution provisions simply by imposing additional limitations. AS an example, assume the sponsor said "catch-up eligible particpants may only contribute $10,500 for 2007." Therefore, after catch-ups, they still contribute the regular $15,500. Why might they do this? Perhaps to reduce matching contributions? Nevertheless, that's how I interpret the provision.

[Guest mjb]

From the preamble to 414v regs TD 9073 7/7/03:

"Thus for example a plan could provide for an employer provided limit that applies to HCEs even though no employer provided limit applies to non HCEs. However, the final regulations retain the rule that an applicable employer plan is not permitted to provide lower employer provided limits for catch up participants. Furthermore, a plan fails to provide an effective opportunity to make catch up contributions if it has an applicable limit (e.g. an employer provided limit) and does not permit all catch up eligible participants to make elective deferrals in excess of that limit."

How can a plan permit Key/HC ees to make catch up contributions with the first $ of their elective deferrals but require non key/HC employees to max out on their 402g limit before making a cath up contributions without violating the universal availability requirement of 414v?

[wsp]

So then you limit deferrals to 1% for everyone? Kind of a role reversal isn't it? Over age 50 HCE now benefits more than the NHCE's.

[Guest mjb]

Universal availability means providing the same opportunity for all participants under plan imposed terms. If you disagree with the IRS please feel free to do so and provide a cite. The reason the IRS regs require the same limit for all catch up eligible employees is to prevent a TH plan from avoiding the contribution required under 416 by manupulating the limits for making a catch up contributions to favor HCE/key ees. I dont understand why there is a need to do this in a 401k plan when catch up eligible HC/Key ees can contribute 5k to an IRA and then roll it over to the plan in the following yr.

[Bird]

Thanks, mjb, for the quote from the preamble; I was concerned about Belgarath's cite but I think that the preamble explains what it means - "you can't limit catch-up opportunities for catch-up eligible participants by imposing an employer limit."

I disagree with your conclusion that "forcing" NHCEs to use up their 402(g) limit before making catchups is a problem. Is there a scenario where NHCEs could contribute less because of it? I don't think that imposing an employer limit on HCEs, which allows (or requires) them to start using catch-ups sooner than an NHCE, means that catch-ups are not universally available. The NHCE can still do catch-ups if s/he exceeds the 402(g) limit or some other limit.

[austin3515]

The EOB clearly indicates in Chapter 11, Section XII, Part E2 (2006 version) that having plan imposed limits apply to different groups of participants does NOT affect the universal availability requirement. It then goes on to say that HCE's could be limited to a lower percentage of pay.

In Chapter 3, Section IV, Part C.1.b.3, he also indicates that catch-up contributions are excluded from the determination of a key employee's contriubtion rate.

So the only conclusion (if you trust Sal is that you can limit a key employee to 0, let them make their catch-up contributions only, and no THM is required.

[Guest mjb]

Austin:

Q1: What provision of the regs does Sal cite as authority?

Q2: If the plan is audited who has more authority Sal or the IRS?

Q3: anyone gotten a 401k plan approved with 0% contribution/ 5000k catch up for keys HCEs?

My problem with his conclusion is that it is inconsistent with the universal availiablity rule of 414(v). I see no reason to risk a plans qualified status of this kind of trivial issue.

[austin3515]

Q1a: With respect to the catch-ups not requiring top-heavy contributions, he sites whereever it says that a plan shall not fail to satisfy top-heavy by reason of making a catch-up contribution 1.414(v)-1(d)(3)(i), which states:

Contributions not taken into account for other nondiscrimination purposes -- (i) Application for top- heavy. Catch-up contributions with respect to the current plan year are not taken into account for purposes of section 416. However, catch-up contributions for prior years are taken into account for purposes of section 416. Thus, catch-up contributions for prior years are included in the account balances that are used in determining whether the plan is top-heavy under section 416(g).

Q1b: With respect to the ability to limit HCE's to a given percentage, he sites 1.414(v)-1(e)(1)(i), which states:

An applicable employer plan does not fail to satisfy the universal availability requirement of this paragraph (e) solely because an employer-provided limit does not apply to all employees or different limits apply to different groups of employees under paragraph (b)(2)(i) of this section. However, a plan may not provide lower employer-provided limits for catch-up eligible participants.

As I had mentioned before, my intepretation of this last sentence is that a limit cannot apply solely to catch-up eligible participants. IF that is not the interpretation then the immediately preceding sentence has no meaning whatsoever.

Q2: The real question is who is a better judge of what the regulations mean - you or Sal? I mean, Sal very literally wrote the book on this stuff.

Q3: Corbel's prototype has a field to apply a separate 401k contribution limit on the HCE's and I don't recall anything in any amendment that indicated such a restriction violated the universal availability requirements.

I see no reaosn not to use a very effective and very legal plan design...

[Guest mjb]

A: While the sentence cited in bold in Q1b permits an employer to allow different limits between different groups of employees, as noted in both the (e) reg and the preamble to the 414(v) regs, each empployer limit on universal availalility of catch ups for plan participants is subject to the BRF regs of 1.401(a)(4)-4. The preamble pointly notes as an example that a plan could permit an employer provided limit for catch ups by HCEs (e.g.,no catchup allowed) even though no similar employer provided limit applies to NHCEs. Allowing only HCEs/key employees to make only catch ups with a 0% employer contribution would violate the BRF rules and would disqualfiy a plan that had adopted such a provision as an operational failure, regardless of whether a determination letter had been issued. In otherwords a plan cannot distinguish the effective opportunity to make catch up contributions among different groups of participants in a way that would violate the BRF regs. I see nothing in the EOB that contradicts this premise.

In addition, the preamble to the 414v regs would require that an employer provided limit apply to all catch up eligible participants.

[austin3515]

Sorry, but I'm going w/ Sal on this one...

[Guest mjb]

Q1: why do you believe is Sal is advising employers that they can ignore the application of the BRF rules required for universial availability under 1.414-1(e) which explicitly require compliance with the BRF rules?

I will leave it to other posters to answer the Q of whether they think the EOB is advising plan sponsors to ignore the BRF rules when applying the universal availaiblity rules for catch up contributions.

Q2: Are you informing you clients of the application of the BRF rules to universal availability when proposing 0% catch option for HCEs/Key employees or are you not disclosing the potential risk of disqualfication?

[austin3515]

He says this can be done in black and white, I even provided the cites.

So just to be clear, you think is Sal is wrong on this?

[Bird]

mjb, your argument seems to hinge on the presumption that allowing HCEs to use catchups before NHCEs might otherwise use them somehow violates universal availability.

I see nothing in the regs that supports that. The fact is that the NHCEs can still use catchups if they "need" them, e.g. by exceeding the 402(g) limit.

As I noted earlier, if you can come up with a scenario where an NHCE won't be able to use catchups if they are needed because of an employer-imposed limit on HCEs, then you might have something.

But I don't think anyone except you cares if an NHCE's $10,000 contribution doesn't consist of any catchups, while a similarly-situated HCE has $1,000 of catchups.

[Guest mjb]

I think the IRS cares whether a Q plan complies with requirements for universal availability under IRC 414(v) in both written form as well as operation. If plans were only required to meet the substantive requirements of the IRC instead complying with formalities of the myraid provisions of the IRC, regulations and rulings there would be lot less VCP filings and audit issues. Allowing HCEs/Key ees to make catch up contributons under a 0% contribution plan not available to other ees is a questionable practice under two separate regulations affecting qualification under 401(a) :

1. BRF rules. As noted in the preamble to 414(v) regs, the catch up option must comply separately with the BRF rules. There is nothing in the regs that permits a plan to HCEs/Key ees to make a catch up contribution with the first dollar of their elective contributions to comply with the BRF rules as long as the the plan allows Non HCEs/key ees to contribute a larger amount overall to the plan. There is nothing in the quoted provision of the EOB that provides an exemption under the BRF regs for this provision.

2. 414(v) regs. The regs expessly prohibit a plan from providing a lower employer provided limits for catch up eligible participants which rules out a 0% catch up option. The EOB specificaly notes that this provision is an exception to the prior sentence which permits differentiation in catch up limits between different groups of employees (but not participants).

Failure to comply with either of the above provisions will result in DQing the plan. I can't understand why an advisor would recommend a provision which provides trivial benefits to HCE/Key ees at the risk of the loss of qualfied status when the same tax benefit is available without risk if the HCEs/ key ees contribute 5K to an IRA and rollover the proceeds to the plan.

What none of the posters have been willing to answer is whether they would inform a client of the D Q risk of adopting such a provision and recommend that the client consult a tax advisor or obtain a determination letter for such a provision.

[Mike Preston]

5K to an IRA or 2.5k?

[Mike Preston]

Austin, bird, do either of you have an email or other communication from Sal (or any other source) that specifically talks about a 0% limitation applying to HCE's (or Key's or any other group OTHER THAN catch-up eligible participants, per se)?

I would venture to say that every citation I've seen so far from Sal does not contradict what mjb has been saying. In fact, I would say that using what Sal has written as justification for allowing a lower deferal limitation to a thinly disguised group of catch-up eligible participants with a large overlap with those who are so defined is likely to result in exactly what mjb is sounding the alarm over: plan disqualification or unhappy EPCRS (or worse: audit CAP) plan sponsors.

I'm fairly certain I have a citation from Sal that specifically says a zero limitation for HCE's is, at the least, inadvisable. If I get time (please, stop the cacophonous laughter), I'll search for it.

With that said, if there is a significant percentage of HCE's who are not catch-up eligible and they, too, are subject to the same deferral limitation, it is unlikely that the IRS would raise the discrimination issue under the BRF provisions of the regulations under 401(a)(4). Remember, in order for a BRF violation to occur under a4 it must result in "significant" discrimination in favor of HCE's. It is a (much?) higher standard than "amounts testing" violations of a4.

But with all that said, the fact remains that mjb's advice is spot on: there is a greater RISK of the IRS making trouble for a plan sponsor that chooses to implement an artificially deflated plan imposed limitation which can be, effectively, for no other purpose than to enable HCE's access to catch-up contributions where they would otherwise not be available. How could it be otherwise?

[Tom Poje]

Fact:

preamble says "Thus for example a plan could provide for an employer provided limit that applies to HCEs even though no employer provided limit applies to non HCEs."

so one can't disagree with that.

preamble then goes on to say:

" However, the final regulations retain the rule that an applicable employer plan is not permitted to provide LOWER employer provided limits for catch up participants."

emphasis mine.

earlier in the preamble the example is used of a plan that limits HCEs to 1% deferral the first few months and then increasing it to 15% later in the year, thus creating an artificial 'catch-up" early on. the IRS has cleary said NO, you look at catch up at the end of the year, that catch ups aren't 'created' early on in that way. (By the way, no mention is made that doing this would violate any BRF - you could do this, but in determining what amounts are treated as deferrals and waht amounts are catch-ups you still have to follow the guidelines listed under, for lack of a better term - what happens if the employer imposed limit is changed during the year.)

what has been left out from the quote from the preamble listed above was the first sentence -(which results in the whole thing (at least to me) to be taken out of context. Lets include that first sentence. "A plan will NOT FAIL the universal ability requirement solely because an employer-provided limit does not apply to ALL employees or different employer-provided limits apply to different groups, as long as each limit satisfies the nondiscriminatory availability requirements of 1.401(a)(4)-4 for BRF. Thus, for example, a plan could provide for an employer-provoded limit that applies to HCEs, even though no employer-provided limit applies to NHCEs...

hmmm. lets see. first sentence says you could provide different limits as long as you satisfy BRF. next sentence says you could limit HCEs only. apparently the govt doesn't think that is a BRF.

what you can't do (next sentence) "..not permitted to provide lower employer provided limit for catch-up eligible participants"

so that would seem to say you can't write your document to say "deferral limit is 15% for employees aunder age 50 and 5% for employees over age 49.

[Bird]

Mike, I'm not relying on or looking at what Sal wrote. I'm just looking at the regs, in particular the cites that Tom has quoted and explained very nicely; I recognize that there is some apparent contradiction ("you can't provide lower limits to catch-up eligibles" but at the same time "a plan could provide a lower limit for HCEs"). I think it's clear that they just don't want some provision that would keep an NHCE from using a catchup if it is needed.

mjb, if you're going to insist on answers to your questions, maybe you should answer mine first: how is an NHCE going to be harmed by limiting HCEs?

[austin3515]

Regarding TP's last paragraph, I would like the record to note that this is exactly what I speculated the requirement to mean (See post #12).

[J Simmons]

The NHCEs could be harmed by not obtaining the QNEC to cure ADP failure that they'd otherwise receive if this end run around the ADP test were not attempted.

[austin3515]

I love how good plan design is an "end-run."

By that rationale, testing by otherwsie excludables would also result in discrimination.

The point being that both the 0% limit on HCE's and testing by OE's are clearly allowable by law.

[Mike Preston]

You keep this up and I'm going to have to find the time to find what I intimated I might be able to find if only I had the time. <g>

[austin3515]

Don't blame me, I'm just a free-lance poster

Tom Poje's the one who gave my argument credibility!!

[Mike Preston]

Somebody help me out, here. I seem to recall (famous last words?) that there was a requirement in the regulations which requires a participant to be eligible to make regular elective deferrals in order to be eligible for catch up contributions. Isn't a provision which limits elective deferrals to ZERO the functional equivalent of providing that such a participant is ineligible to make elective deferrals? Just testing the theories, ya' know?

[rcline46]

I agree with Mike! One, I believe this was stated at one of the annual conventions from the stage by one of the IRS representatives.

Two, I agree that being ineligible to defer makes one ineligible for catchup. The agument centers on the 'exceeds a 402(g), 415, or plan limit' clause. And the operative words are that a participant's elective deferral exceeds one of these limits. Well, if you cannot make a deferral (0% plan limit), then you cannot have a deferral exceed this limit.

Is therefore a $0.01 limit acceptable? In this case the Top Heavy Minimum would be to small to actually count. But we are not addressing THIS argument.

[Mike Preston]

I agree with Mike!

Geez, Reed, you make it sound like it is a once in a lifetime event!!!!!

Is therefore a $0.01 limit acceptable? In this case the Top Heavy Minimum would be to small to actually count. But we are not addressing THIS argument.

Well, I will. I think that there is a fuzzy line here. Intentionally. If the plan sponsor draws this line (in any manner) then it falls on said plan sponsor to justify its use and be able to prove that it isn't a fake line, drawn for no purpose other than creating catch-ups where there otherwise might not have been any (or many). Not that I like this result, but I do think it is the natural implication of the way the rules have been crafted (and that we are stuck with). In essence, this falls squarely in the mjb camp of saying that the plan sponsor is assuming some level of risk by drawing the line and assumes more risk by drawing this line closer to zero allowed elective deferrals than farther from it. fwiw

[Tom Poje]

Mike:

"I'm fairly certain I have a citation from Sal that specifically says a zero limitation for HCE's is, at the least, inadvisable. If I get time (please, stop the cacophonous laughter), I'll search for it."

no need to search for it, I don't think you will find it. On page 11.272 (section XI part B.3.b.2)f (2006 edition)

its even a particular paragraph

Could a 401(k) plan impose a zero percent deferral limit?

Yes...blah blah blah

and then the last sentence in bold

Applying zero limit to a specific group. A zero limit also could apply to a specific group of participants (e.g., only to HCEs or only to key employees)

unless he has changed his mind in the 2007 edition, it doesn't sound like he is saying it is 'inadvisable'.

the only place where he implies it is inadvisable is that he says this reduces the deferral rate available to someone substantially.

(If you carry the argument further, then cap the HCEs a 1 cent. that should satisfy you.)

[Mike Preston]

(If you carry the argument further, then cap the HCEs a 1 cent. that should satisfy you.)

But it doesn't. See my prior message. I think you devolve into a facts and circumstances test.

[John Feldt ERPA CPC QPA]

Sal has a cautionary note on page 11.278 of the 2007 ERISA Outline Book:

"It should be noted that, when the catch-up regulations were in proposed form, there was an example exactly on point, where a plan set the plan imposed deferral limit at 0%, but also included a catch-up provision. This example was absent from the final regulations issued under IRC Section 414(v). Treasury officials have not discussed their reasoning for removal of this example, or whether it represents a decision by the Treasury that a 0% deferral limit is improper, or that they simply didn't want to promote such a plan design by way of a regulatory example. Clearly, a plan could set $1 as the deferral limit and there would be no question it is acceptable, so setting a $0 limit shouldn't make a difference. Some would argue that with a $0 limit, the plan really doesn't have a 401(k) arrangement. But that argument fails to recognize that, even with a $0 limit, those employees who are catch-up eligible could make elective deferrals, so the 401(k) arrangement is still available, just not to all eligible employees."

I'm not personally advocating Sal's position or Mike's (or mjb's), just adding Sal's comments. I hope that's okay to enter in here. Sal has other things to say about this in the book, but you can just get the 2007 EOB if you need.

[Mike Preston]

Of course it is ok to enter here.

Looking just at the 2006 EOB, there are two sections which bear on this issue. The question is which one takes precedence.

The first was alluded to, above. Sal states that "A zero limit also could apply to a specific group of participants (e.g., only to HCEs or only to key employees)." But immediately after that he has the phrase "See Section XII (Part E.2.d.) of this chapter for details." In said E.2.d there is this little gem:

E.2.d.5)a) Limits may not be based solely on whether participant is eligible to make catch-up contributions. The universal applicability rule *is* violated if the plan imposes a lower elective deferral limit just on catch-up eligible participants. In other words, the class has to be based on criteria other than whether the employee is eligible to make catch-up contributions. This way, a lower limit could not be placed on catch-up eligible HCE's in order to treat a greater portion of these employees' elective deferrals as catch-up contributions and, thus, exempt from the ADP test.

I think you need to look to all of what is written, not just a small portion. The above seems cautionary enough for me, even without the elaboration in the 2007 EOB.

I'm not saying I know where the IRS will draw the line. I'm merely saying that there is a line, somewhere, and the client should be made aware of the fact that if they draw it differently from the way the IRS draws it, there is a risk.

[austin3515]

No one has suggested that a limit can be placed on catch-up eligible participants. The limit is being placed on HCE's. The fact that some HCE's are also catch-up eligible is a coincidence.

And Mike, just so we're all clear, assume the document limits HCE's to 5% of pay. You're position also includes that if a sufficient number of NHCE's are also limited to 5%, that such a plan design would be allowable? Or have I misunderstood your concerns with respect to BRF's?

[Mike Preston]

I'm not so sure I'd need ANY NHCE's to be limited before the plan would be "ok". Note that it isn't a BRF issue, it is an effective availability issue. At least I think that is the concern. But I would be concerned if 100% of the HCE's deferred 5% plus 100% of the catch-up limitation, while none of the NHCE's contributed more than 5%. Think of the movie Labrynth and hear these words: "Smells baaaaaaaaaaaaaaaaad."

Again, I'm not saying I know where the line is drawn. I'm saying we have precious little guidance on how to draw said line.

Are you saying there is no line?

[stephen]

I find it funny that Mike and mjb agree!

[Mike Preston]

We have agreed far more often than we have disagreed.

[Mike Preston]

You just read about it in great detail when it is the latter.

[austin3515]

Just that I'm comfortable based on a literal reading of the regs that this falls well within the line. The only grayness is the 0% limit, in my opinion. But I am omfortable by the "catch-ups are elective deferrals too" argument. Plus the fact that an example was in the proposed regs (which I did not know) and then removed with no explicit explanation and/or prohibition is a tacit confirmation that we (me and TP and Bird) are on the correct side of the line.

[wsp]

And quite the entertaining and informative read it usually is.

What exactly would the risk be in this instance? Realistically... Seems to me like this almost boils down to a facts and circumstances issue. I can't imagine that the IRS would come down too heavy handed on it given that it can be reasonably be argued the other way AND it could have been resolved leaving the example in the final regs or issuing comment on why it was pulled.

[Bird]

The NHCEs could be harmed by not obtaining the QNEC to cure ADP failure that they'd otherwise receive if this end run around the ADP test were not attempted.

Thanks for responding. I agree that that could happen, but I should have been more specific; I was wondering how an NHCE could not be able to make catchups if needed if a similarly situated HCE has a specific limit.

[Guest mjb]

Mike is correct. Great minds think alike