conflicting definition of HCEs

takeover situation, CB Plan doc refers to "standard" definition for HCEs.   401(k) Plan refers to Top-Paid.  Small combo (6-7 total, 2 owners, 1 highly paid non-owner).  What does it mean?  Which definition prevails? IMHO it boils down to if the highly paid non-owner individual does get the 7.5% Gateway or not?  

If this is for 2022, I do not know the answer but if for 2023, you can simply amend one of the plans now and be done with.

it is for 2022  reviewing and trying to file

For each plan, does the plan’s sponsor get reliance on an IRS determination letter or opinion letter?

both plans are VS.

Following ERISA § 404(a)(1)(D), the administrator must administer each plan “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this title [I] and title IV.”

What allocation results if the administrator applies each’s plan’s definitions, allocation conditions, and other provisions as each plan’s text provides?

Isn't there something that says the TPG election must be made by across all plans of the employer to be valid?  (Either a regulation or even something in the plan's document.)
I always took that to mean that if one of a controlled group's plans didn't have the election, it basically invalidated it across all the plans.

Thank you both Bri and Peter, that answers my question.  I knew the election must be consistent across ALL plans (not just retirement plans btw) but I did not know what it means if it is NOT consistent.  Appreciate.

You mean to thank Bri and Paul, who points to the Internal Revenue Service’s nonrule interpretations in Notice 97-45 1997-33 I.R.B. 7 (Aug. 18, 1997).

If the administrator interprets either plan’s governing documents to mean something other than what a textual reading alone provides (or to resolve an ambiguity), the administrator might make a record of the reasoning for its interpretation.

And if a nonapplication of a top-paid provision either plan’s governing documents arguably provides would lower a participant’s allocation or accrual under either plan, the administrator might want to be thoughtful and careful about the reasoning for its interpretation.

That a governing document’s provision does not meet a tax-qualification condition does not, at least not by itself, give a plan’s administrator an excuse from ERISA § 404(a)(1)(D)’s command to administer a plan according to the plan’s governing documents.

In my experience, a sensible reading of a plan stated using IRS-preapproved documents often calls for interpreting the plan to provide something other than what a reading of the plan’s text alone seems to provide.

irb97-33.pdf

Good point - sometimes plans will define allocation groups as HCEs and non-HCEs, so changing a definition mid-year has at least the potential to inadvertently but improperly cut back benefits.