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Plan sponsor (S) of a calendar year 401(k) safe harbor match plan is acquired in a stock purchase by Buyer (B), which has its own 401(k) plan.  S's plan is NOT terminated prior to closing of the transaction.  All of S's employees will be hired by B upon closing, and will be immediately eligible to participate in B's plan.  S will continue to exist as a subsidiary of B, though without employees, and will retain the EIN it has now.  Can S's plan retain its safe harbor status for 2023, notwithstanding there will be no new money coming into the plan because S no longer has employees?  I know S's plan can't terminate post-closing without running into a successor plan issue, but must it remain in existence until 12/31/2023, at which time it would merge with B's plan, to be able to preserve safe harbor status for 2023?  Would merging the plans before year-end forfeit the S plan's safe harbor status for the year? 

Posted

Plan Doc: Thank you for your response, and my apology for the typo above: It should read "type" as opposed to "time", but I think you figured it out.

Moving on to your specific question: Under your factual scenario (no plan termination but reduction or suspension of safe harbor matching contributions), I believe that 1.401(k)-3(g) provides your answer. The reduction or suspension is permissible if S is operating at an economic loss or the more likely scenario (the SH notice for S' plan had "maybe not" language). If so and assuming that the other requirements of 3(g) are met, such as notice, etc... the S plan would still have to pass the ADP test for that year. So, in the sense that you will not be able to preserve SH status for 2023.  

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