Top Heavy - only 401k contribs

Non safe-harbor 401(k) plan (integrated discretionary PS plan design) has become top heavy.

The key employees defer > 3% 401k. (great NHCE participation so they never fail and thus no safe harbor provision)

If I recall correctly, even if they do not make a nonelective PS contribution, they still need to contribute the 3% top heavy for non-key (as indicated in adoption agreement) just because of the key ee 401k contribs?

Key employee deferrals are indeed considered in the key employee allocation rate for determining the top heavy minimum.

Gotcha and much thanks.

As I recall, key catchup is excluded.