401(k) Plan with Safe Harbor and last day requirement

[pensionnube]

Hello All,

I have a question regarding a Safe Harbor Plan that also happens to have a last day requirment.

The plan also has crosstesting thus everyone is in their own rate group.

I have a participant that has termed before the year end, and was a participant in the plan throughout the year entitling him to SH.

The plan is also maximizing the owners and needs to satisfy gateway requirement. Since the participant is technically not eleigible for the additional 2 % that he needs to satisfy gateway (because he was not employed on the last day), do we have to amend the plan so that he is eligible for PS for the year or is it understood that a participant that has recieved SH can also receive profit sharing to recieve gateway?

Please advise.

[Lou S.]

Does your plan document have language to automatically "top up" participants to the gateway minimum regardless of other allocation conditions?

If the answer is yes you don't need an amendment; if the answer is no you do need an amendment.

[Tom Poje]

in other words, most documents (at least I think) have gateway language similar to top heavy language, basically saying even if not otherwise eligible you get