Who's the Employer?

Answer:

Corporations C and D are in a controlled group, because the ownership, held by fewer than 6 persons, is identical.

Corporations A and B are not part of the group. Under the controlled group attribution rules, there is no attribution from child to parent unless either:

• The child is under age 21, or
• The parent owns or otherwise is deemed to own more than half of the company.

Similarly, there is no attribution from parent to child unless either

• The child is under age 21, or
• The child owns, or otherwise is deemed to own more than half of the company.

Additionally, there is no attribution between siblings under the controlled group rules.

Applying those rules, there is no attribution in any of these companies. Corporation A is not part of the controlled group because son Two does not hold an interest in Corporations C or D, and so his interest in Corporation A is excluded under Vogel Fertilizer (see Q&A 224), and the 80% controlling interest test is not satisfied. Dad and son One hold only 75% of Corporation A. 

Similarly, when looking at Corporation B, Vogel excludes Dad's stock in Corporations C and D. Son One on his own holds only 50% of Corporations C and D. Not only is that insufficient for a controlling interest, but it also fails to satisfy the more-than-50% effective control test.

It is important to note that the attribution rules we are discussing apply to controlled groups and groups of trades or businesses under common control. They do not apply to affiliated service groups, highly compensated employees, or key employees, where there is always attribution between parent and child, regardless of the ages.

For a full discussion of the controlled group attribution rules, please see Chapter 9 of my book, Who's the Employer.

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