Contributions in excess of those in the safe harbor notice that was di

[Richard Anderson]

I am taking over a plan in which the 401(k) safe harbor notice that was distributed to the plan participants says that the employer will not make any other contributions. (only contributions will be deferrals and safe harbor contribution).

The employer now wants to make a discretionary non-elective contribution. The document allows discretionary non-elective and discretionary match contributions.

If the employer makes a discretionary contribution after distributing a safe harbor notice that says that there will be no other contributions, can the safe harbor still be used? Or must ADP/ACP testing be done because of the discretionary contribution? Is there any guidance on this?

What if the notice says that the safe harbor will be the basic match, but later the employer wants to do an enhanced match? Would that be allowed?

My thinking is that in order for the plan to have safe harbor status for a particilar year the employer must abide by what the safe harbor notice says, even if what the employer later wants to do is more generous than the contribution specified in the notice.