using 3% for missed deferral opportunity in a Safe Harbor Plan

[Jim Chad]

What do you all think of using 3% instead of actually calculating the ADP?

 

One very large company wants to use 3%.  Is there any regulatory backing for this position?

[Mr Bagwell]

Here's the reg.

(Emphasis mine)

(d)(i) If the employee was not provided the opportunity to elect and make elective deferrals (other than designated Roth contributions) to a safe harbor § 401(k) plan that uses a rate of matching contributions to satisfy the safe harbor requirements of § 401(k)(12), then the missed deferral is deemed equal to the greater of 3% of compensation or the maximum deferral percentage for which the employer provides a matching contribution rate that is at least as favorable as 100% of the elective deferral made by the employee. If the employee was not provided the opportunity to elect and make elective deferrals (other than Roth contributions) to a safe harbor § 401(k) plan that uses nonelective contributions to satisfy the safe harbor requirements of § 401(k)(12), then the missed deferral is deemed equal to 3% of compensation. In either event, this estimate of the missed deferral replaces the estimate based on the ADP test in a traditional § 401(k) plan. The required QNEC on behalf of the excluded employee is equal to (i) 50% of the missed deferral, plus (ii) either (A) an amount equal to the contribution that would have been required as a matching contribution based on the missed deferral in the case of a safe harbor § 401(k) plan that uses a rate of matching contributions to satisfy the safe harbor requirements of § 401(k)(12) or (B) the nonelective contribution that would have been made on behalf of the employee in the case of a safe harbor § 401(k) plan that uses nonelective contributions to satisfy the safe harbor requirements of § 401(k)(12). The QNEC required to replace the employee’s missed deferral opportunity and the corresponding matching or nonelective contribution is adjusted for Earnings to the date the corrective QNEC is made on behalf of the employee.

 

I would say yes to the 3%, however, if the employee wanted to defer 10% and put in paperwork or online percentage timely, I'd think they are on the hook for 5%, plus......

[Jim Chad]

Thank you, Mr Bagwell.  I should have mentioned that this plan is safe harbor match.

[Mr Bagwell]

The employee is still going to get the full safe harbor match regardless if Basic SH Match or Enhanced.

You need to figure out if employee had put in a deferral percentage or not and go from there.