Safe Harbor, Forfeitures and Top Heavy

[PMC]

Plan was amended to be safe harbor effective 1-1-09. Plan had reallocated forfeitures but was changed to reduce when amended for safe harbor. Only employer contributions made are those used to satisfy safe harbor.

The Plan does have some forfeitures (on old non-safe harbor $) that need reallocating for the plan year ending 12-31-08. The plan otherwise would have been top heavy for the 2009 plan year based on the 12-31-08 determination date.

Question - since the plan is safe harbor for 2009 will it be exempt from top heavy for the 2009 plan year if forfeitures are reallocated in 2009 for the 12-31-08 plan year end? It would seem to be the same as if a PS contribution were made early 2009 for the 2008 plan year - the plan would be exempt from t-h in that situation, wouldn't it.

It's the plan year for which they are allocated and not in which they are allocated that would affect top heavy exemption?

[BG5150]

I believe the TH pass would still apply, as long as the forfeitures are considered annual additions for 2008, that is, they are allocated within 30 days of the due date of the corp tax return (or is it 30 days after the due date of the 5500?).