414s

Plan is a Safe Harbor Non-Elective plan.  Plan has compensation exclusions (ie non safe harbor exclusions-OT, commissions, bonus etc).  The plan does not pass 414s.  Can the plan satisfy the 414s requirement by using General testing?  Or must the amend their definition of compensation to satisfy 414s?

The compensation definition used to calculate the safe harbor non-elective contribution must satisfy 414(s). 1.401(k)-3(b)(2).  If it doesn't, a different definition that satisfies 414(s) must be used.  Check your plan document first.  The current pre-approved documents were written when there were still widely differing opinions about amendments to safe harbor plans.  Our VS document (ASC) for example has a provision that reverts to total compensation if the safe harbor compensation definition elected doesn't satisfy 414(s).  If your document doesn't have a similar provision, an amendment will be needed.

for non safe harbor contributions, if the definition of comp doesn't pass 414s can you satisfy if you pass general test? 

The safe harbor rules specifically require the use of a compensation definition that satisfies 414(s) for the safe harbor contribution.  A plan can base other contributions on a contribution definition that does not satisfy 414(s).  See 1.414(s)-1(a)(2).  However, discrimination testing must be done using a compensation definition that satisfies 414(s). See 1.401(a)(4)-2(c)(2) and 1.401(a)(4)-12, definition of "plan year compensation".  Some plan documents allow the use of any definition of compensation that satisfies 414(s) for testing.  Others may require the use of a specific testing compensation definition for testing.  So, check the document before proceeding.  In a pre-approved document, it will probably be in the base document.  

6 hours ago, bmore1147 said:

for non safe harbor contributions, if the definition of comp doesn't pass 414s can you satisfy if you pass general test? 

For NON safe harbor contributions, it all depends. For matching contributions other than ACP safe harbor matching contributions, you need to pass the ACP requirement stated in the document using a 414(s)-compliant definition (the document should so state). If the plan states you have an ACP safe harbor (which you can have only if the plan so states), then you cannot have an ACP safe harbor unless you have an ADP safe harbor, so the ADP safe harbor needs to exist (and be corrected, if applicable) before you can comply with the plan's specification that the ACP safe harbor is to be used for meeting the ACP requirements. If the plan states you must pass an ACP test, then the document is likely to say you need to use a definition of compensation that complies with 414(s) for that ACP test. To summarize, there is no such thing as a general test for any type of matching contribution, as nondiscrimination is shown by satisfying the plan's stated method of meeting the ADP/ACP requirements. I believe the 401k/401m regulations say that the ADP/ACP test (or test equivalents, such as a safe harbor) is the exclusive method of testing for discrimination.

Nonelective contributions is another matter. If nonelective contributions (that are based on a non-414(s)-compliant definition of compensation) pass the general test (presumably on a contributions basis) using a definition of compensation that is 414(s)-compliant, then you are good to go. Otherwise, you need to do a corrective retroactive amendment described at Regulation 1.401(a)(4)-11(g), and I leave it to you to figure out what the content of the amendment should be. (That regulation, incidentally, is also your authority for changing compensation retroactively to correct the ADP safe harbor failure if the document doesn't have a 414(s) fail-safe for the ADP safe harbor.)