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My position is that they need to be part of the same §414 controlled group as a parent-subsidiary or brother-sister to avoid MEWA status. I read that DOL guidance to state that ASG status is not enough to be treated as a single employer and therefore avoid MEWA status. Here's that guidance: https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/information-letters/05-24-2004 Trades or businesses with less than a 25 percent ownership interest thus are not under "common control" for purposes of section 3(40) of ERISA, and, therefore, are not a single employer for purposes of determining whether their plan provides benefits to the employees of two or more employers under section 3(40). It is our understanding that "affiliated service group" status within the meaning of section 414(m) of the Code may be based upon an interest of less than 25 percent. Accordingly, "affiliated service group status" under section 414(m) of the Code would not, in and of itself, support a conclusion that a group of two or more trades or businesses would be a single employer for purposes of section 3(40) of ERISA. Here are the materials I've put out on the issue: https://www.newfront.com/blog/adding-a-new-ein-to-the-health-plan Newfront Office Hours Webinar: M&A for H&W Employee Benefit Plans

I don't have a spreadsheet that I can share, but if I did, it would have these column headings: Attorney name Phone number Email address What I am saying is, there is not a deterministic formula for saying if an ASG exists or not. You need to make a number of factual determinations, including: Is a particular organization a service organization? What entity is the first service organization? Does one organization regularly perform services for another? Is a significant portion of the entity's income derived from providing services? Are the services performed by one entity of a type historically performed by another? There are no spreadsheet functions to answer these questions.

And Basically, it has to be on account of the death. Meaning if the money comes to the beneficiary directly from the decedent's qualified employer plan account or from the decedent's IRA, fine, no 10% tax at any age. But if the beneficiary rolls it over, even without commingling with any other assets, and then later takes a distribution from the rollover account, it may, in fact, still be the money left to the beneficiary by the decedent, plus a little earnings, but it does not enjoy the death benefit exception from the 10% tax.

I agree with Bri. You have to follow the formula in the document. Of course, the formula can be amended, but watch out for anti-cutback issues. Most likely you can amend it for the current year if there is a last day requirement, or for the next plan year if there is no last day requirement.