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Posted
Small company (4 HCEs of whom one is Key and 3 NHCEs) has had a SH match plan for years.They recently got very successful and want to add a Cash Balance for 2021 with Key EE getting $200,000 pay credit and as little as possible to others. Question is on one of the HCEs who has no balance in the current 401(k) since not making any deferrals and the client wants to continue to give him nothing though plan is top-heavy and will be even more top-heavy with the CB in place.
 
Can this HCE be excluded from the Cash Balance plan and get nothing under the DC plan too even though profit sharing contributions will need to be made to NHCEs to meet the gateway? My thought is that he would need to get 5% of pay in the DC plan to cover TH minimum but I can see an argument to give him nothing or 3% of pay in DC since that HCE would be a participant in only one plan.
 
Any consensus on this?
Posted

Well once you make any employer contribution to the DC plan that is out side safe harbor rules you blow your "get out of top-heavy free card" so he needs to get a top-heavy minimum since you are clearly going to have to make an employer contribution to make the CB plan work. Though you can probably limit the HCE to a 3% Th minimum in the DC plan if you exclude him from the CB plan and your TH coordinating language is right.

If they are trying to go with lowest cost they might consider switching from SH match to SH non-elective next for next year.

 

Posted

If they put in a new PS plan, they can keep the TH exemption for the existing plan as long as it continues to consist solely of deferrals + SH match. Then then can exclude this particular individual from both the CB and PS plans, and they won't need to give them a TH minimum.

If that's too much trouble, they could exclude the individual from the existing DC plan going forward; they would probably still need to give them a 3% TH minimum for 2021 (assuming they are excluded from the CB plan), but after that, nothing.

Free advice is worth what you paid for it. Do not rely on the information provided in this post for any purpose, including (but not limited to): tax planning, compliance with ERISA or the IRC, investing or other forms of fortune-telling, bird identification, relationship advice, or spiritual guidance.

Corey B. Zeller, MSEA, CPC, QPA, QKA
Preferred Pension Planning Corp.
corey@pppc.co

Posted

The key, obviously, is to make the HCE actually ineligible by job title or other mechanism, as opposed to having him be eligible but just in a group accruing $0 benefits.

Posted

Generally you can't waive participation in a DB plan - it is not an elective contribution.

If you mean the irrevocable waiver of participation, that has to be done before the employee becomes eligible for any plan offered by the employer, and must apply to every plan ever sponsored by the employer. If they are already eligible for the 401(k) plan then it is too late. That's even if the plan allows irrevocable waivers, which plans are not required to offer.

Free advice is worth what you paid for it. Do not rely on the information provided in this post for any purpose, including (but not limited to): tax planning, compliance with ERISA or the IRC, investing or other forms of fortune-telling, bird identification, relationship advice, or spiritual guidance.

Corey B. Zeller, MSEA, CPC, QPA, QKA
Preferred Pension Planning Corp.
corey@pppc.co

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