A contribution that is in excess of what is permitted as a result of ADP/ACP testing still constitutes an excess contribution, but under a different section of the tax code. It's just that it's likely to be distributed under EPCRS and reported on the Form 1099-R with code E rather than as a return of contribution with code P or code 8. However, your position is that it doesn't constitute an excess contribution because you were not an HCE, in which case it should constitute a regular distribution that is eligible for rollover (absent the plan allowing the appropriate restorative payment and correction to the Form 1099-R).
