New to me Plan - SH NEC Review... Not Right

[Basically]

A new client was not taken care of in the past.  I went back a few years and discovered that in 2020 the 2 HCEs didn't receive the full 3% NEC.  The 2 NHCEs did but not the 2 HCEs.  During COVID the business didn't make a PS contribution but regardless of that the plan called for a 3% SH NEC so everyone needed to get it, right?  I ask, there is no exception is there?

Thanks

[C. B. Zeller]

Safe harbor contributions can be reduced or eliminated under certain circumstances. Since HCEs don't have to get the safe harbor in the first place, you can reduce or eliminate their contributions without losing the plan's safe harbor status. IRS issued Notice 2020-52 to address how this could be done in the context of COVID relief, and to grant some special flexibility during that period. Is it possible your client took advantage of this mid-year modification in 2020? If so, there should be a plan amendment, and related notices.

[Basically]

Follow-up

Do these types of amendments, ones where the HCE chooses to not receive the full SH, can they be written in such a way that they only count for one year and then the plan automatically goes back to normal??  Or is it, amend the plan to reduce the HCE SH percentage for 2021 and then another amendment to put it back for 2022?

[Bri]

Hey now, the HCE isn't making that choice, the Employer is.

But yes, if you look at the AA for a pre-approved plan you can often find the language right there in the SH section, the Employer "may" elect to provide a lesser allocation to HCEs.  So it's an ongoing option each year.