Using Matching Contributions in ADP Test

[Guest lizano]

If a plan document describes the standard method for determining ADR, may qualified matching contributions be taken into account as allowed by Treasury Regulation 1.401(k)-2(a)(6) without an amendment?

If an amendment is required, may the amendment be effective for the entire year in which the amendment is adopted (calendar year plan), or are only matching contributions made after the adoption eligible?

[Tom Poje]

not quite sure what is being asked by standard method of ADP test.

for instance, the documents we use have the following definition for QMAC

1.129 Qualified Matching Contribution. The term Qualified Matching Contribution means an Employer contribution made to this or any other defined contribution plan on behalf of a Participant on account of Elective Deferrals, Voluntary Employee Contributions, and/or Mandatory Employee Contributions made by such Participant under a plan maintained by the Sponsoring Employer, that is subject to the distribution (but financial hardship distributions are not permitted) and nonforfeitability requirements of Code §401(k) when made to the Plan. Qualified Matching Contributions are available for either the ADP Test or the ACP Test

so, if made, such QMACs could be used in either test (but of course you cant double up and use the same QMAC in both tests at the same time.)

if your document has a required match contribution that is subject to vesting, then no, you can't wave a magic wand and make it a QMAC.

even if it was 100% vested you can't wave the magic wand because there are also distribution restrictions that must be attached.

[Guest lizano]

What if your plan document did not have the bold text or something similar? Could you use the QMACs on the basis of the regulation alone or would use be precluded by the language in the plan document that does not expressly acknowledge use of QMACs for the ADP test, but does not expressly preclude use?