controlled group with SHMC & diff eligibility

[hileman]

3 Plans that must be aggregated for testing.  

all 3 plan are safe harbor match.  1 plan with most of the HCE is immediate entry for SHMC.  the other 2 plans are 21, 1year and dual entry for SHMC

the regs say for SHMC to satisfy the adp/acp testing, the "rate" cannot be greater for the HCE than non-highly.  If my highly are getting it immediately and non-highly have to wait a year and dual entry in the other plans, am I required to run adp? acp? both

[Tom Poje]

a wild guess and stab in the dark

1.401(k)-1(b)(4)(iii)(A) indicates for purposes of testing the term plan means a plan within the meaning of 1.410(b) - 7(a) and (b) AFTER application of 1.410(b)-7(c) [this would included otherwise excludables.

so I guess first step is separate the testing and now you can aggregate the statutory includables because they have consistent methods.

at that point, hopefully there are no otherwise excludables who are HCEs because then it doesn't matter - 1.401(k)-1(b)(4)(iii)(B) indicates you can't aggregate a safe harbor with a non safe harbor and I would say you have a safe harbor for one group of ees and no safe harbor for another group. but if there are no HCEs you can treat NHCEs differently