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How is the following situation corrected:

A controlled group between 2 companies. 2013 is the first year after the transition period and both companies need to be considered together. Company A has a safe harbor 3% nonelective plan with with SH going to all employees (not just NHCEs). Company B has a 401(k) only plan subject to ADP testing with no employer contributions. The plan's do not pass 410(b) separately.

Since they don't pass 410(b), I can't split them into 1 safe harbor group and 1 group that is tested.

How is this corrected?

Am I stuck providing the 3% SH contribution to all employees of Company A but still being subject to ADP testing?

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