Exclude HCE from SEP (related company)

[401(k)athryn]

My understanding is that you cannot specifically exclude an HCE from a SEP Plan.  What about in the following situation?

Wife has a SEP sponsored by her self-employed real estate company.  She has no employees, so she is the only SEP participant. 

She works for her husband's company, of which she and her husband are the only two employees.  Her husband is the 100% owner.  The two companies are controlled with the wife owning 100% of her company and she is deemed, through attribution, to own 100% of her husband's company (this would not be the case if she did not work for him).

I have not seen her SEP document, but I highly doubt that her husband's company is an adopting employer of the plan.  So, can he be excluded from the SEP if his company is not a sponsor of the plan?  I do not handle SEP plans and rarely need to get involved.  Do most of them have language that indicates that employees of related companies will be automatically included, in which case a specific reference to the husband's company would not be needed and we have an issue since he has not received SEP contributions? 

Thank you!

 

 

 

[ETA Consulting LLC]

Not going to happen.  Unlike qualified plans, SEPs have no provisions to exclude 'related employers (e.g. members of a controlled group).  In fact, the instructions to the SEP typically have language saying '.... be careful if you have a spouse who owns a business'.

Good Luck!