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Who's the Employer?

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

Attribution for Highly Compensated Employees

(Posted October 7, 2000)

Question 60: Father owns more than 5% of Company X but isn't employed there. His adult son is employed there, but doesn't own any of the stock, and his compensation would not make him a highly compensated employee. Is he an HCE because of his father's ownership, due to attribution?

Answer: Yes. Under IRC 414(q)(1), an employee is a highly compensated employee if he or she is a 5% owner or has compensation of more than a specified amount. The definition of 5% owner is in IRC 416(i)(1). That section defines a 5% owner as someone who owns, or is deemed to own under IRC 318, more than 5% of the company.

Section 318 sets forth the attribution rules used for many purposes, including:

Key employee status

Highly compensated employee status

Status as 5% owner for 401(a)(9)

Owner-employee status under the prohibited transaction rules

Affiliated group ownership

Under IRC 318, there is absolute attribution between parent and child. The age of the child is irrelevant. The employment status of the parties is irrelevant. (See IRC 318(a)(1)(A)(ii).) So, if Father owns the stock, Son is deemed to own it. That makes Son a highly compensated employee in this case.

Incidentally, a different set of attribution rules is used for controlled groups, and a third set is used for related parties and determination of disqualified persons under the prohibited transaction rules. All three sets of rules are discussed in my book, Who's the Employer?, with numerous examples. The second edition, due out in a few weeks, includes a chart that compares all three sets of rules.

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.