Top 20 Election

Can an HCE Top 20 election in a volume submitter document be amended out any time before year end? 

Sure, as long as the amendment doesn't cause a cutback prohibited by 411(d)(6).

3 minutes ago, Mike Preston said:

Sure, as long as the amendment doesn't cause a cutback prohibited by 411(d)(6).

Aye, and there's the rub. 

Asap 06-07 had this to say (my emphasis):

"Practitioners should remember that there are other considerations relating to the timing of amendments, such as IRC §411(d)(6) cutbacks. For instance, amending to use the top-paid group election during the plan year might result in different allocations ("converting" an HCE to an NHCE might reduce or eliminate the need for a QNEC, or could change NHCE allocations in a tiered plan). Depending on plan requirements for receiving an allocation, an employee might be deemed to have "earned" the right to a given allocation; a change in the HCE definition that results in a reduction of that allocation could be an impermissible cutback."

Rev Proc 2005-66 stated that discretionary amendments had to be executed before the end of the plan year, and per the asap, IRS speakers confirmed that a change of testing method (e.g. prior vs. current year) was indeed a discretionary amendment.  The above quote was added as a caution.  I don't know if there's been any clarification since but this is what I "remember" (at least remembered enough  to look up/find).

Thanks!

This had me thinking - if someone's changed from NHCE to HCE, they lose the right to extra gateway.

(2 plan CB/PS combo with safe harbor 3%)  They'd still get a 5% THM in the DC plan either way, but if gateway was 7.5% less the CB accrual piece, has the right to that been accrued right at the 1-hour mark since safe harbor triggers gateway?

The plan doesn't technically HAVE to cross-test if other ways to pass 401a4 can be found.  Not that it wouldn't be cross-tested, but it seems like gateway's not absolute, and therefore could be not so much of a cutback.