1099 employee/attorney - controlled group?

[TPApril]

Affiliated Service Group question:

Attorney with his own LLP and his own retirement plan, moves into a new law firm's offices, and his name is put onto the firm's website. He has access to the Admin staff.

Law firm however treats him as an independent contractor instead of W-2 employee.

Law firm does not intend to give him retirement benefits.

I just get so dizzy from these controlled group concepts.

Not sure if he needs to be included in nondiscrimination/coverage testing with the existing law firm's retirement plan (after the first year as Otherwise Excludable).

[shERPA]

If he has no ownership, it's not a CG, nor can it be an ASG unless he's principally providing management services.

That said, this could be a shared employee situation if the attorney is utilizing the firm's staff.  It could also be some sort of de facto partnership if he has a profit interest in the firm (as opposed to simply a percentage of billing compensation).

This sort of determination should be made by legal counsel.  TPA points out the issues of an ASG and/or shared employees (IRC 414(m) and Rev Ruling 73-447.  Then let the lawyers figure it out.