Top Heavy to HCE - can it be taken out?

Prior Plan Doc states that both HCE and NHCE will receive top heavy minimum. Any reason it cannot be removed for HCE for new restatement?

Assuming yes, with last day required, any reason it would be treated as accrued?  In other words I believe it can be removed for current plan year without removing an earned benefit by the HCE.

Edit after receiving several responses below:  I should have typed Key and Non Key above instead of HCE and NHCE.

I didn't even know a non-Key HCE could be excluded from the TH contribution.

In general, any non-Key employee who is actively employed on the last day of the plan year must receive the top heavy minimum (assuming this is a DC plan), regardless of whether they are HCE or non-HCE.

Exceptions include:

• If no Key employee received a contribution during the plan year
• If the plan consists solely of deferrals and safe harbor contributions, and the HCE are excluded from the safe harbor

Do either of these apply?

okay, I cannot believe I typed HCE and NHCE instead of Key and Nonkey when I know better.

This is not an odd top heavy/HCE provision, it is a standard provision of trying to change it from allocating the top heavy minimum to both Key and Non Key to only Non Key during the plan year.

I think it's a yes.

I think you are OK. Doesn't DC TH-min require employment on last day of the year? So you shouldn't have a 411 cutback issue.