PROFIT SHARING CONTRIBUTION NOT MADE FOR OWNERS IN PRIOR YEAR

[Guest PAM]

A small business has a 401(k) plan with match. Last year the owners maxed out deferral and got match. However, they made a 5% profit sharing contribution just for rank and file ees. They did not sign any kind of waiver. Do they have a problem for 1998 if they participate in profit sharing portion?

[Guest bswift]

Pam, why not amend the plan now to provide that HCEs are not eligible to recieve a profit sharing contributions? Won't correct any problem for the past and you may have to make a corrective contribution. Best to hit the issue head on and exclude them. The one time waiver might work under some circumstances in the 401(k) area, but from the little facts you gave, I don't think that works. Good luck.

[Guest Eric L]

Is the goal for them to be able to receive profit sharing allocations going forward? If so, I'd make a corrective contribution to them now, including earnings, just like I'd make it up to any other overlooked eligible employee. Document what steps are being taken to avoid having this happen again. Then, just run the plan as currently written going forward. If the goal is to keep them from getting the contribution going forward, I agree with bswift.

[Guest PAM]

The goal is for the owners to start receiving ps contribution. They just didn't give themselves a contribution last year because of cash flow, I believe. So, Eric, I guess what you've said is pretty applicable. Thanks for the help.