There are many reasons
for the wide popularity of 401(k) plans, one of which is that they
shift the funding burden from employers to employees. But this
advantage may be diminished for plans classified as "top heavy" where
special contribution rules kick in that plan sponsors may not be aware
of. What follows is a detailed look at the impact of the top heavy
rules on 401(k) plans and some strategies for minimizing the cost to
What is a Top Heavy Plan?
A defined contribution plan is considered top heavy when more than
60% of the account balances are attributable to "key employees." A key
employee is an employee who meets any of the following criteria during
the determination year:
Owns more than 5% of the employer;
Owns more than 1% of the employer and had compensation in excess
of $150,000; or
Is an officer of the employer with compensation in excess of a
specified dollar amount ($165,000 for 2012), with certain limits on
the maximum number in this category.
In determining ownership, family attribution rules apply, meaning
that an employee is deemed to own the stock or interest owned by his
or her spouse, parents, children and grandchildren. It's important for
employers to keep their third party administrators abreast of any
changes in the ownership or officer status of the company so that the
top heavy tests can be performed accurately.
The term "key employee" is sometimes confused with "highly
compensated employee" (HCE) which is used for nondiscrimination
testing. The main difference is that HCEs include all employees
earning more than a certain dollar amount in the prior year ($115,000
in 2012), whereas such employees would not be considered key employees
unless they meet the ownership or officer criteria.
Most large 401(k) plans are not top heavy due to the high number of
non-key employees participating.
How is Top Heavy Calculated?
For ongoing plans, the top heavy determination date is the last day
of the preceding plan year (determination year). For new plans, the
determination date is the last day of the first plan year. As of the
determination date, the account balances, including loans, of the key
employees are compared to the total account balances of all
participants, without regard to the plan's vesting schedule. Certain
adjustments must be made to the account balances when performing these
calculations. The following amounts must be added: distributions to
recent terminees; in-service distributions over the past five years;
and the cash surrender values of whole life insurance policies.
The following amounts must be subtracted: unrelated rollovers,
i.e., those not coming from another plan sponsored by the same
employer (related rollovers should not be deducted); and account
balances of participants who terminated prior to the determination
year. Account balances and distributions to former key employees are
Here is an example of a top heavy plan calculation: Thomas owns
100% of ABC Company which sponsors a profit sharing plan. He and his
wife both work for the company as does their 25 year old son. All
three are considered key employees due to stock ownership and
attribution rules. The account balances under the plan are as follows:
Distributions to 2011 Terminees
Since the adjusted account balances of the key employees exceed 60%
of the adjusted account balances of the entire plan as of December 31,
2011, the plan is top heavy for 2012.
Generally, if the employer sponsors multiple plans covering the
same key employee(s), they are required to be aggregated for top heavy
Consequences of Being Top Heavy
A defined contribution plan that is top heavy must provide a
minimum contribution to non-key employees equal to the highest
contribution rate allocated to any key employee up to a maximum of 3%
of compensation. For example, if a top heavy profit sharing plan has
one key employee who received a contribution of 2% of his
compensation, then all non-key employees would be entitled to a 2%
contribution. If the key employee receives a 4% contribution under the
plan formula, then the non-key employees must receive at least a 3%
Forfeiture allocations, as well as matching contributions in a
401(k) plan, are included and provide a dollar-for-dollar offset of
the required top heavy contribution. When an employer sponsors
multiple plans, the top heavy benefits need only be provided by one of
the plans; however, there are special rules and potentially higher
contributions that may apply when an employer sponsors both a defined
benefit and defined contribution plan.
Impact on 401(k) Plans
The top heavy regulations provide that salary deferrals made by key
employees are considered employer contributions but deferrals by
non-key employees are considered employee contributions. In other
words, deferrals by a key employee can trigger the top heavy
contribution requirement, yet deferrals by a non-key employee cannot
be used to satisfy the requirement.
For example, if the plan is top heavy and one key employee defers
4%, the 3% minimum contribution requirement will apply to all non-key
employees who have met the plan's eligibility requirements, even those
who have elected not to make deferrals. It is important to note that
for plans with multiple eligibility schedules, i.e., immediate
eligibility for 401(k) deferrals and a one-year wait for company
contributions, any non-key employee who is eligible for any component
of the plan and is still employed on the last day of the plan year is
entitled to the top heavy minimum contribution.
How to Avoid Top Heavy Contributions in a
Here are a couple of strategies that can be utilized to avoid the
top heavy contribution requirement in a 401(k) plan.
Key employees can choose not to participate if the plan is top
heavy. If no key employee receives a contribution or forfeiture
allocation, then top heavy contributions are not required. This
strategy not only serves to eliminate the contribution requirement but
also is likely to reduce the key employee top heavy percentage over
the years, assuming that non-key employees continue to contribute
(investment results and employee terminations also play a factor).
It's possible that after a few years of not participating, the key
employee percentage will drop below 60%, resulting in the plan not
being top heavy for one or more years and allowing key employees to
Another strategy is for one or more key employees to take an
in-service distribution from the plan, if allowed under the terms of
the plan. This option is less effective since in-service distributions
over the last five years must be added back when calculating the top
heavy ratio. But after five years, such distributions are ignored,
potentially resulting in the plan falling out of top heavy status for
Keep in mind that in-service distributions may be unnecessary where
the key employees choose not to participate because after five years
of not contributing the plan may no longer be top heavy even without
The Safe Harbor Alternative
Certain salary deferral plans that provide minimum contributions
and meet an annual notice requirement are exempt from the top heavy
rules and are automatically deemed to pass the annual ADP (actual
deferral percentage) and ACP (actual contribution percentage)
nondiscrimination tests. This only applies if additional employer
contributions above the safe harbor limits are not made to the plan.
Such plans may actually require the employer to contribute less than
the top heavy minimum. They include:
SIMPLE 401(k) Plan
This is a good compromise for many employers with 100 or fewer
employees. The employer must contribute 2% of compensation to all
participants earning at least $5,000 or make a matching contribution
of 100% of deferrals up to a maximum of 3% of compensation. No other
contributions are allowed and all contributions must be fully vested.
Participants of this plan may not receive any contributions or benefit
accruals under any other plans of the employer.
SIMPLE 401(k) plans have lower contribution limits. Instead of the
current $17,000 deferral limit, plus $5,500 catch-up limit for those
age 50 and over, participants in a SIMPLE 401(k) plan can defer up to
$11,500 plus $2,500 as a catch-up ($14,000 total).
The 2% contribution requirement is less than the 3% top heavy
contribution. In plans where the employer is already making some
matching contribution this might not represent a big increase. And the
reduced deferral limit may actually be higher than what HCEs could
defer under the ADP test. This alternative works very well for some
Safe Harbor 401(k) Plan
This plan allows the same deferral limit as a regular 401(k) plan
($17,000 plus $5,500 catch-up), but requires slightly higher employer
contributions than the SIMPLE 401(k) plan. The employer must make
either a 3% contribution for all participants or a matching
contribution of 100% of the first 3% of compensation deferred, plus
50% of the next 2% of compensation deferred (maximum match of 4% of
There are some differences between a 3% top heavy and a 3% safe
harbor contribution which should be considered. For example, the top
heavy contribution is required for non-key employees still employed at
the end of the year whereas the safe harbor contribution is required
for non-HCEs who were eligible at any time during the year (although
HCEs are often included). Safe harbor contributions must always be
fully vested but top heavy contributions can be subject to a vesting
Salary deferral plans that provide a minimum matching contribution
in conjunction with an automatic enrollment feature can also be exempt
from the top heavy rules and ADP/ACP testing. Participants are
automatically enrolled in the plan unless they elect not to
participate. The default contribution rate escalates each year.
Deferrals are matched at a rate of 100% of the first 1% of
compensation deferred, plus 50% of the next 5% of compensation
deferred (maximum match of 3.5% of compensation).
As an alternative to the matching contribution, a QACA can provide
a 3% employer contribution similar to the safe harbor 401(k)
requirement. Safe harbor contributions under a QACA must be 100%
vested after the completion of two years of service.
The top heavy provisions can have surprising consequences for
401(k) plans, particularly in smaller companies, resulting in the
liability for additional employer contributions. Certain strategies
can help avoid such contributions and take the plan out of top heavy
The safe harbor alternative also requires minimum contributions but
lets the plan eliminate ADP/ACP nondiscrimination testing. Accurate
employee information is important for proper top heavy determinations.
This newsletter is intended to provide general
information on matters of interest in the area of qualified retirement
plans and is distributed with the understanding that the publisher and
distributor are not rendering legal, tax or other professional advice.
Readers should not act or rely on any information in this newsletter
without first seeking the advice of an independent tax advisor such as
an attorney or CPA.