Question: Under a 401(k)(12) safe harbor, the 3% nonelective can be used to exempt from ADP testing, to meet top heavy, and in 401(a)(4) testing. Is there any basis for believing the 401(k)(13) nonelective could be used similarly (i.e. also used for 401(a)(4) testing of the discretionary cross-tested allocation)? Common sense would seem to say so, yet I'm not finding specific support for this. Thoughts?

the only portion of 1.401(k)-3(h)(2) that was modified was to add "or 401(k)(13)(D)(iv)" to the last sentence (which is the sentence that says you can't use a safe harbor for integration and imputing disparity.)
thus one would conclude you can follow the first part of the paragraph which says you can use the contribution for a(4) testing.


as for top heavy, the code [416(g)(4)(H) was amended by adding 'or 401(k)(13)' after 'section 401(k)(12)'
and 'or 401(m)(12)' after 'section 401(m)(11)' to give the free ride on top heavy if there are no other contributions

Thanks Tom. That makes sense to me.

But of course there are other contributions - that is, the employer discretionary in this case, so TH comes into play in this situation.