Under IRS notice 89-23, noncontributory 403(b) plans are offered "safe harbors" that may be easier to meet than statutory nondiscrimination provisions. If a plan meets the standard for one or more of the safe harbors, it satisfies all nondiscrimination requirements, including minimum coverage and general nondiscrimination. Failing the safe harbors forces a plan to rely on the statutory tests. To qualify for one of the safe harbors, a plan must not disproportionately benefit highly compensated employees (HCs) in terms of eligibility or contributions. Acceptable ratios of eligibility and contributions vary depending on the overall percentage of employees that benefit who are non-highly compensated employees (NHCs). All noncontributory 403(b) plans offered by one employer must be combined into the employer's 403(b) "program." Safe-harbor requirements must be satisfied on the last day of the plan year, taking into account all employees employed on the last day and all HCs who terminated in the last quarter. Transitional safe harbors are not available to non-403(b) plans or contributory 403(b) plans.
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