Safe Harbor - Disqualifying Provision

[Guest shaul]

Assume a filer is a Cycle E filer that sponsors a 401(k) plan designed as a safe harbor 401(k) plan. If the document contains a provision that undercuts the safe harbor status - - - for example, a provision that provides a higher rate of match for HCEs than for NHCEs, or that only allows deferrals from an "unreasonable" definition of compensation - - - does that constitute a "disqualifying provision" under Code Section 401(b)? My assumption is that it does not, since the plan can still qualify by running and passing the ADP/ACP tests; its qualified status is not jeopardized per se.

Thanks.

[Tom Poje]

without looking it up, I thought the rule was that if you had any amounts above and beyond safe harbor you ran an ACP test on the entire match, with an option to exclude the first 4% or something like that.