Safe Harbor "maybe" - when plan language is currently silent

[Belgarath]

So, here's one I hadn't seen, but maybe it is actually quite common. Plan language currently says NOTHING about safe harbor contributions, or the ability to utilize a "maybe" provision,etc.

Last year, a "maybe" notice was done. Now they want to utilize the 3% SH and amend the plan for 2013 to provide the 3% SH.

Is this ok, under 1.401(k)-3(f), or does the plan FIRST have to have safe harbor "enabling" language prior to 1/1/2013?

The documents I have seen all have such "enabling" language, prior to the start of the "maybe" year.

[Lou S.]

I'm not sure what you mean by "enabling language." My underatanding is that if your maybe notice and supplemental notice are both good and your amendment to elect SH for the year is timeley, you are good to go.

[Bird]

I'm used to seeing it in the document as you say, but technically the plan is "amended" to use the safe harbor so I guess it would be ok to issue the notice before the SH language is in the plan and amend it in later. I guess it would just be a longer amendment.

[Belgarath]

Thanks. "Enabling language" is just a term I concocted for the language I have always seen. Essentially, the current plan document says nothing whatsoever about safe harbor, and doesn't have any of the language stating that you can do the "maybe" notice, etc., etc...

My initial reaction was that you couldn't do the safe harbor for 2013 even if proper and timely notice was done in 2012, but then after reading he regulation, it seemed to me that it would be ok, unless I'm missing something...

[Kevin C]

I don't think you are missing anything. I read 1.401(k)-3(f) as saying that for a plan that provides for current year testing, providing the conditional and supplemental notices are the requirements to be able to amend mid-year to add the 3% SH.

Our VS document has language saying you can do that, but I don't see anything in the regulations requiring you to have that kind of language in your document to do the amendment.