Top Heavy Exemption if HCEs do not receive Safe Harbor?

[Guest wickedp1]

Hello everyone!

I have a client that is contributing only the 3% Safe Harbor Nonelective contribution to their plan. There are no other employer contributions to be allocated, and forfeitures were used to reduce plan expenses. Based on all information I could find, and from my past experience, this scenario allows the plan to be exempt from all top-heavy minimum requirements.

However, there is one wrinkle that is affecting my judgement. The plan document is written so HCEs are not required to receive Safe Harbor contributions (keep in mind they are eligible to receive the Safe Harbor in the sense they met the eligibility requirements and entered the plan for Safe Harbor contributions, and are not strictly excluded from this portion of the plan). This selection was made a few years ago, so the plan has not contributed the Safe Harbor 3% Nonelective for any HCEs (both Non-Key and Key) for quite some time. This is the first year in a while where the client decided to not allocate discretionary profit sharing in addition to the Safe Harbor, so the Top Heavy exemption can possibly come into play for the plan year.

That being said, since the HCEs that are Non-Key are not receiving any Safe Harbor contribution, does the plan lose their Top Heavy exemption, and would this group have to receive a 3% Top Heavy Minimum? I can't confirm anywhere whether the exemption still holds up since the client is strictly allocating the Safe Harbor nonelective to the plan.

Any help is greatly appreciated (a regulation cite or excerpt from the ERISA Outline Book would really help as well).

Thanks!

Wickedp1

[Lou S.]

The plan is deemed not top-heavy under the regulation if the only contributions are employer contributions satisfying the safe-harbor rules and employee elective deferrals.

So you are fine with this design. That is the HCE, non-Keys do not need to receive an employer allocation.

I'm assuming this is the employers only plan, that is they aren't using this plan to support er contributions or accruals in another plan.

[Guest wickedp1]

Thanks Lou. That is what I assumed... just wanted to make sure I wasn't going crazy. There is no other plan the employer participates in.