Are ESOP shares counted for 5% owner determination?

[jukeboy56]

For the purposes of determining who is a 5% owner, and thus required to begin taking required minimum distributions after age 70-1/2, are shares allocated through an employee stock ownership plan that have not been distributed from the plan count?

Subject company has some employees nearing age 70-1/2 who own shares outright and also have shares allocated to them within the ESOP. Do the shares still inside the plan have to be counted when determining if they are 5% owners?

Any code or regulation citations you can include would be appreciated.

[Guest John Nelson]

No. See Code section 318(a)(2)(B).