Can associated match not be forfeited if return of excess aggregate co

[John A]

A plan failed the ADP test and the plan document calls for forfeiting the match associated with the deferrals that will be returned to the one HCE causing the failure. The plan also failed the ACP test and will do a corrective distribution to pass the ACP test. Since the amount returned to pass the ACP test exceeds the amount of associated match, can the associated match provision be ignored in this case?

[Guest]

YES! (Smile)

there is no order specified in plans failing both ADP and ACP tests.

Thus, since plan failed ACP test, you are allowed first to return ACP $. Then return ADP $

this is because of 1.401(m)-1(e)(4)

...matching contributions that are distributed as excess aggregate contributions are NOT taken into account when applying the nondiscrimination rights and features to the RATE of match

[John A]

Thanks, Tom. That's the way I was interpreting my reading, but it's really nice to have it confirmed.

[MWeddell]

I agree with the above, but check the plan document too. Often documents are drafted to not handle the hanging match problem as optimally as is legally permitted.