Proposed Safe Harbor Match lower than previous match

[rblum50]

I have a client that currently has a 401(k) with the only contributions being salary deferrals and an employer match. The employer match is 100% of their deferrals to a maximum of $2,000. The owners want to get more for themselves by maxing out on their salary deferrals. Without a safe harbor contribution, they would not pass the ADP test. I suggested a Safe Harbor match (100% up to 3% plus 50% of the next 2%). The revised figures with the four owners maxing out their salary deferrals came out great. The owners would receive approximately 75% of the increase to the contribution. Unfortunately, about 20 staff out of about 100 had a decrease in their employer contribution from the current match to the S/H match. One of the owners just does not want to see this happen. Since the accumulated decreases were relatively minor, I suggested making the shortfalls up to these individuals outside the plan. He balked at that idea. Here's my question. Can the plan have an additional matching contribution that would equal the difference, if any, of what each participant had before versus their potentially new lower amount due to the S/H match?

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Here's an idea, what if every participant was put into a separate class? Since the "correction" contributions would only be going to non-highly participants, there would be no discrimination issue. Seems like this approach is alot simpler than the additional matching approach detailed above.

[Lou S.]

I'm not sure if you can have a greater of formula for SH match but if you can you do a greater of 100% of deferral up to $2,000 or standard SH formula. Clearly the first formula would only apply to employees making less than $66.7K. In case you have owner HCEs making less than that amount you might want to exclude HCEs from first part of that.

Now if that doesn't satisfy SH you can still do it but I think that opens your match to ACP testing.

It is clearly an interesting situation that porbably wasn't contemplated by the IRS when setting up SH plan rules as this is the kind of design that is going to favor low paid employees.