Make a top heavy contribution in a non-top heavy plan

[ERISA Philomath]

Would it be permitted to make a Minimum Top Heavy Contribution in a non-top heavy plan?

Plan A - PS Plan with no keys

Plan B - PS Plan with keys

Plan C - CB Plan that includes some from Plan A and some from Plan B (including the key employees)

Plan A requires B/C to pass nondiscrimination. Plan B/C does not require Plan A to pass nondiscrimination. Based on this, we would say that B/C forms a required aggregation group but does not need to include A.

Plan B/C is Top Heavy. However, the plan sponsor would like to make the minimum Top Heavy contributions for B/C in the two PS plans - this would include making contributions to A for those who are participating in A and C.

Thanks in advance for your thoughts!

[C. B. Zeller]

Every plan has to specify in which plan the top heavy minimum will be provided. Since B/C is the top heavy aggregation group, and C is a defined benefit plan, C's top heavy minimum will control. What does the plan document say?

To get to your original question though, there is nothing that requires that the top heavy minimum be provided in a plan that is part of the same aggregation group. If C says something along the lines of, "The top heavy minimum benefit will be provided in plan A to the extent that any non-key employee required to receive a top heavy minimum benefit is otherwise a participant in A, otherwise the top heavy minimum benefit will be provided in plan B" then I think it would accomplish your goal.