HCE definition for Gateway and rate group testing

Question: if a Plan's AA says that the Plan defines HCEs by TPG in the ADP/ACP testing section would it define HCEs the same way for Gateway and rate group testing? So could they say that for ADP/ACP testing the plan uses TPG to identify HCEs, but for rate group and gateway testing it uses calendar year definition to identify HCEs?

Yes. No.

I may be wrong, but I think that "Is this person a highly compensated employee?" has one answer for all possible purposes.  To the extent that there is any give in how one determines whether someone is a highly compensated employee, pick one method and use it.  There should be no such thing as someone who is an HCE for one purpose and not for another (or vice versa).

For example, if it is possible, by limiting the HCEs to the top 20% by election, to wind up with fewer than 25 HCEs and there is someone who, but for that election, would have been an HCE, by virtue of the top 20% election is not an HCE, and would have been one of the 25 highest-paid people in the history of the sponsor (with earnings high enough, other than the top 20% election, to meet the initial definition of an HCE), then that person is not subject to the 25 highest-paid limitations (I think).

Incidentally, whether someone is an HCE or not is NOT plan specific.  The top-25 HCEs subject to that restriction may ALL be non-participants in the plan in question, so a plan, even a plan with HCEs, may in effect be able to ignore the top-25 restrictions because none of the top 25 have any benefits in that plan.

Also, I think the top-25 applies to all plans of the employer, and all plans must have the top-25 provision elected consistently.

Oh yes, whether the election is made to treat only the top 20 percent as HCEs is a company-wide election, and it is only after the HCEs are identified does one need to grapple with top-25 limitations (and the determination as to which HCEs or former HCEs are in the top-25 is company wide from the creation of the universe, so if the defined benefit plan only covers a subgroup of employees, it is quite possible that there is nobody covered there who is in the top-25).