Q1.      What is a top-heavy plan?

A1.        A top-heavy plan is one in which the total of the accounts of all key employees is greater than 60% of the total of the accounts of all employees as of the determination date.  In determining this ratio, account balances of employees that have not performed any service for the employer during the 1-year period ending on the determination date are disregarded.  The account balances of former key employees and balances consisting of unrelated rollovers are also disregarded.  In-service distributions (e.g., corrective distributions, hardships, other distributions from the plan made by active employees) made during the 5-year period ending on the determination date are added back into the calculation if the participant has performed at least one hour of service during the 1-year period ending on the determination date.

Q2.      What is the determination date?

A2.        The top-heavy ratio is determined on the last day of the preceding plan year.  For new plans, the determination date is the last day of the first plan year.  The ratio on this date for new plans will determine top-heavy status for the current and following plan year.

Q3.      What is a key employee?

A3.        A key employee is any employee who is an owner (or attributed owner) of more than 5% of the company at any time during the plan year.  Additionally, owners of more than 1% who also earn greater than $150,000 and/or officers who earn greater than $215,000 for 2023 will also be considered key.

Q4.      If my plan fails the ADP/ACP test, does that mean it’s top-heavy?

A4.        No.  The term “top-heavy” is often confused with ADP/ACP test failure but it is not related to that issue.  A plan may be top-heavy without failing those tests or may fail those tests without being top-heavy.

Q5.      What can cause a plan to become top-heavy?

A5.        As discussed above, a qualified plan is considered top-heavy when key employees own more than 60 percent of total plan assets.  This happens most often in smaller plans with low deferral rates among non-key employees.  Plans with a profit sharing allocation method that heavily skews the contribution towards key employees (such as new comparability or age-weighted) often end up top-heavy.  Also, for some plans, long-term non-key employees may have accumulated larger account balances that have kept the plan from becoming top-heavy.  For the determination date in the year following the year one or more of these employees terminates employment, the top-heavy ratio will no longer consider their account balance in the denominator, thus causing the percentage of assets held by key employees to exceed 60%.

Q6.      How will I know if my plan is top-heavy?

A6.        We provide your plan’s top-heavy ratio in each year-end report.  For newly top-heavy plans or those close to becoming top-heavy, your consultant will contact you to discuss your options.

Q7.      My plan is top-heavy – now what?

A7.        There are two qualification requirements that apply to top-heavy plans:

1. The plan must provide minimum vesting at least as liberal as a 3-year cliff or 6-year graded schedule.  All benefits, including benefits accrued before the plan becomes top-heavy, are subject to these minimum-vesting requirements once the plan enters top-heavy status.
2. A minimum contribution may be required.  A profit sharing contribution must be made for all non-key employees for a plan year in which key employees’ benefit.  The minimum contribution required is 3%, unless the highest benefit received by a key employee is less than this amount.  If no key employee benefits during the plan year (i.e., no deferrals, employer contributions, or reallocated forfeitures), no top-heavy minimum contribution will be required for that year.  For years in which a top-heavy minimum contribution is required, all participants employed on the last day of the year must share in the contribution based on their full-year gross compensation, regardless of hours worked or plan entry date. 

If entry requirements for profit sharing contributions are more stringent than those for 401(k), all participants eligible for 401(k) must receive the top-heavy minimum contribution.  If the profit sharing contribution allocation is greater than the top-heavy minimum, participants not yet eligible for profit sharing will receive only the top-heavy minimum, based on their full-year gross compensation.  Under the cross-tested allocation method, other minimum contribution requirements may apply.

Q8.      I don’t like this whole top-heavy thing.  Is there any good news?

A8.      Qualified Non-Elective Contributions and Matching Contributions can count towards your minimum contribution requirement.  The safe-harbor non-elective contribution generally will satisfy the top-heavy minimum contribution requirement.  Additionally, a 401(k) plan that satisfies the safe-harbor rules and satisfies the ACP test safe harbor for matching contributions will be exempt from the top-heavy rules if no other employer contributions are made to the plan.  SIMPLE plans are not subject to the top-heavy rules, but other restrictions do apply.

If this Q & A hasn’t answered all your questions regarding top-heavy plans, or has generated some new ones, please give your consultant at MBC a call.  This is by no means a comprehensive account of all possible top-heavy scenarios.  Each qualified plan is unique, and each employer has different goals for its plan.  Different situations involving controlled groups or aggregation of plans can affect an employer’s top-heavy status or contribution requirements.  If you have any questions or concerns regarding your plan’s top-heavy status, it’s always best to contact your consultant to discuss your specific situation.

The general information provided in this guide is based upon complex requirements of the Internal Revenue Code and Treasury Regulations. It is provided with the understanding that, for the purposes of this publication, MBC Retirement Services, Inc. is not engaged in rendering legal, accounting, or other professional services. Although care has been taken to present the material accurately, MBC Retirement Services, Inc. disclaims any implied or actual warranties as to the accuracy of any material herein and any liability with respect thereto.