Subscribe (Free) to
Daily or Weekly Newsletters
Post a Job

Featured Jobs

Sr. Benefits Plan Administrator

The Catholic Diocese of Arlington
(Arlington VA)

The Catholic Diocese of Arlington logo

Senior Retirement Account Representative

Ohio Pension Services
(Akron OH)

Ohio Pension Services logo

Strategic Relationship Manager

401K Generation, Inc.
(Altamonte Springs FL)

401K Generation, Inc. logo

Retirement Plan Consultant

DWC - The 401(k) Experts
(Remote)

DWC - The 401(k) Experts logo

Senior Retirement Plan Administrator

TPS Group
(Remote / Buffalo NY)

TPS Group logo

Retirement Plan Administrator

Premier Plan Consultants
(Remote / San Diego CA)

Premier Plan Consultants logo

Director, Business Development

National Benefit Services, LLC
(Remote / West Jordan UT)

National Benefit Services, LLC logo

DC Plan Administrator

Farmer & Betts, Inc.
(Remote / Tacoma WA / CO / OR)

Farmer & Betts, Inc. logo

Retirement Plan Administrator +

Steidle Pension Solutions
(Remote / NJ / PA)

Steidle Pension Solutions logo

Retirement Plan Consultant

The MandMarblestone Group, llc
(Remote / Philadelphia PA)

The MandMarblestone Group, llc logo

Pension Plan Administrator

DeMars Pension Consulting Services, Inc.
(Overland Park KS)

DeMars Pension Consulting Services, Inc. logo

Free Newsletters

“BenefitsLink continues to be the most valuable resource we have at the firm.”

-- An attorney subscriber

Mobile App image LinkedIn icon
Twitter icon
Facebook icon

BenefitsLink > Q&A Columns >

Who's the Employer?

Answers are provided by S. Derrin Watson, JD, APM

Repeal of Family Aggregation Does Not Eliminate Controlled Group

(Posted January 18, 2000)

Question 41: What was the intent of section 1441 of SBJPA '96, which lifted the "special aggregation" rules for plans covering owner-employees of unincorporated businesses? Would this allow husband and wife Schedule C businesses to sponsor separate plans covering their respective employees if one of the owner-employees is a common-law employee (treated as such on Form W-2) of the other spouse's business (and hence does not get the spousal exemption under controlled group attribution rules)? In other words, the controlled group plans would not need to be considered as being sponsored by a single employer for purposes of coverage/non-discrimination?

Answer: Nope. This question comes up more often than you would imagine.

Before SBJPA, the Internal Revenue Code had a provision under which family members of a "highly compensated employee" ("HCE") would be treated as though they were all one HCE. Especially when you had husbands and wives working togehter and earning more than the 401(a)(17) limit, this could significantly reduce contributions.

The provision was confusing and created some unusual inequities, and this author did not mourn its departure from our statute books thanks to SBJPA.

But while SBJPA got rid of "family aggregation" (treating family members as though they were one person), it did not eliminate "family attribution" (treating one family member as though they owned stock or other business interests held by other family members). So, for affiliated service group purposes, spouses are still considered to own each other's stock. For controlled group and common control purposes, spouses are considered to own each other's stock unless an exception applies. Family aggregation did not change that at all.

So, let's put the example clearly. Husband owns an unincorporated retail business. He also works part-time as a secretary for his wife, who owns her own legal practice. Assume the businesses are separate property and there are no minor children. Assume further that the wife is not involved in any way in the husband's business. That being the case, because of one of the exceptions, the wife owns 100% of her own business and is not deemed to own any of her husband's business. However, that exception doesn't apply to her law firm, because her husband is employed there. Hence, husband owns 100% of his shop and is deemed to own 100% of the law firm. The two are a controlled group because ownership of her firm is attributed to him. SBJPA did not change this at all. The form of the entity, as a corporation, partnership, propetorship, LLC, or other is essentially irrelevant here.


Important notice:

Answers are provided as general guidance on the subjects covered in the question and are not provided as legal advice to the questioner or to readers. Any legal issues should be reviewed by your legal counsel to apply the law to the particular facts of this and similar situations.

The law in this area changes frequently. Answers are believed to be correct as of the posting dates shown. The completeness or accuracy of a particular answer may be affected by changes in the law (statutes, regulations, rulings, court decisions, etc.) that occur after the date on which a particular Q&A is posted.


Copyright 1999-2017 S. Derrin Watson
Related links:

(restricted access)

(restricted access)

© 2021 BenefitsLink.com, Inc.