I have a 401(k) plan with a match. The plan is top-heavy. It also has a new comparability feature. The plan has an end-of-year psp requirement. I have 3 ee's who terminated, two deferred and received a match contribution- they are not eligible to get the TH contribution. Are they required to get a gateway contribution since they are benefiting by receiving the match? Can anyone point me in the right direction to finding this somewhere in regs? Thanks

Why are they not getting a top heavy contribution; are they Key Employees? If so, are they also HCEs?

They are not key, not HCE - they don't get the TH since there is an EOY requirement.

If you look at the "Explanation of Provisions" section of the Cross Testing regulations issued 6/29/2001, you will see that "employee" is an employee who benefits under the plan for purposes of 410(b). Since under 410(b) the match is mandatorily disaggregated, it is irrelevant. What is relevant is whether they benefit under the profit sharing plan. If they do not receive a top heavy minimum, and they are not eligible for the nonelective/cross tested contribution, they are not benefitting and therefore they are not an "employee" for purposes of the cross testing regulations. Therefore they are not required to get the gateway.