When can 401(k) be added to a profit sharing plan?

[ombskid]

Can 401(k) be added to a profit sharing plan this late in a calender year plan?

[Lou S.]

Yes, but you'll be subject to nondiscrimination testing.

You can elect prior year testing and effectively allow the HCEs to put in 5% of pay but that will probably limit you for 2010 unless you immediately amend to current year testing for 2010 and use that for at least 5 years.

It is too late to add a safe-harbor for 2009 and you need at least 3 months of deferral.

[Blinky the 3-eyed Fish]

I too think you have BRF issues potentially if the HCE's have the opportunity to make larger relative deferrals (owner hasn't taken salary yet or is self-employed or larger bonuses relative to salary) than the NHCE's. The earlier it is implemented the better, to stave off this potential issue.