Bussiness Hardship & safe harbor contribution

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A corporation is dissolving and terminating the plan July 31st due to substantial business hardship. They currently have an end of year 3% non-elective safe harbor feature.

Since the plan is terminating due to a substantial business hardship it is my understanding they can eliminate the 3% non-elective contribution and use the ADP test.

Does anyone see a problem with my analysis?

[Kevin C]

Take a look at 1.401(k)-3(e)(4). Having a substantial business hardship is one of the situations where you can stay safe harbor when you terminate with a short final plan year. Make sure you look at 412(d) for the substantial business hardship requirements. They are pretty restrictive. If the corporate assets are being sold, look at 410(b)(6)©.

1.401(k)-3(e)(4) Final plan year. --A plan that terminates during a plan year will not fail to satisfy the requirements of paragraph (e)(1) of this section merely because the final plan year is less than 12 months, provided that the plan satisfies the requirement of this section through the date of termination and either --

(i) The plan would satisfy the requirements of paragraph (g) of this section, treating the termination of the plan as a reduction or suspension of safe harbor matching contributions, other than the requirement that employees have a reasonable opportunity to change their cash or deferred elections and, if applicable, employee contribution elections; or

(ii) The plan termination is in connection with a transaction described in section 410(b)(6)© or the employer incurs a substantial business hardship comparable to a substantial business hardship described in section 412(d).

[Guest Sieve]

Another issue that I see . . . If, as you suggest, the 3% SHNEC has only been given to those employed at year-end, then it has violated the final 401(k) regs for a number of years. If so, there may be a VCP analysis in your future. (Or, hopefully, you simply mean that the SHNEC is based on full-year comp rather than payroll comp.)