Top Heavy Minimum and New Comparability Calc

I have a 401k plan that is TOP HEAVY and makes a PS contribution (new comparability).  The Service Requirement is 1 year, 1000 hrs, age 19 to enter the 401k plan but for the Profit Sharing has a Age 21 requirement. I have a NHCE (non-highly compensated employee) that is age 20 so they are entitled to the 3% Top Heavy Contribution, but the client wants to give him a 5% contribution since he is giving all other NHCEs 5% for the Profit Sharing. Can I do this? I am just concerned about the age requirement.

From what you've said, it seems that the sponsor would need to amend their plan to allow the 20-year-old employee to be eligible for a profit sharing contribution.

I don't think he's eligible for PS so unless he's getting pulled in under gateway language that is causing him to go from 3 -> 5 which would be fine then I think you might need an amendment to bring him in retroactively.

I agree with Lou, but will also pile on with, if the gateway rate is 5 but you're running separate 401a4 tests for otherwise excludable employees, that gateway rate might not apply to him, so you'd want in the original scenario to have only one set of 401a4 testing rather than two.

As per above comments, to keep thing simple, can't you just have a special eligibility amendment for this particular employee assuming that he is uniquely qualified like a job category or something like that?

An 11-g amendment letting them in for that particular year only.  Done.