Who's the Employer?

Answer:

Of course they can set up a SEP to provide retirement contributions relating to the on-call fees. The real question, however, is whether the SEP must cover the employees of the professional corporation. If the sole proprietorships (the individual doctors receiving the 1099 income) are in an affiliated service group with the professional corporation, the SEP must cover all ASG employees who satisfy the eligibility requirements. 

Suppose we treat Doctor X (one of the shareholders) as an A-Org and the corporation as a first service organization. Both are in the field of health, and so both are service organizations.The doctor individually is a shareholder in the corporation, so the ownership requirement is satisfied. The only remaining question is whether X's sole proprietorship regularly performs services for the corporation or is regularly associated with it in providing services to third parties.

I view Doctor X and the corporation as regularly associated in providing services to third parties. The hospital isn't paying the doctor simply to answer the phone. If a patient comes in ready to deliver a baby and the patient's own doctor is unavailable (or the patient does not have a doctor in the area), the on-call physician steps in. And that generates revenue for the professional corporation. It is fairly easy to argue a link between the two. Perhaps if the revenue that flowed to the corporation from the doctor being on call were trivial, one could argue that they were not "regularly" associated, but the threshold here (while a judgment call) is fairly small.

The questioner had a second question. Suppose the two businesses were not related. Would the doctor have a single 415 limit between the two plans? No. The doctor could easily get total contributions of $15,000 in the SEP and $50,000 in the 401(k) plan, for example. But if the businesses are in an ASG, then there is a single 415 limit.

Chapter 13 of my book, Who's the Employer, discusses affiliated service groups at length. The 7th edition was released today, and I am delighted it is available. Click here for more information.

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