Subscribe Now!
Free Daily News, Jobs, Webcasts, Discussions
Post and Distribute
Your Jobs
ARPA News
ARPA Webcasts

Featured Jobs

401(k) Implementation Manager

Human Interest
(Telecommute / San Francisco CA)

Human Interest logo

Product Support Consultant

ftwilliam.com part of Wolters Kluwer Legal & Regulatory
(Telecommute)

ftwilliam.com part of Wolters Kluwer Legal & Regulatory logo

Retirement Plan Administrator

Bates & Company
(Telecommute / Winter Park FL)

Bates & Company logo

Retirement Plan Consultant / Relationship Manager

Associated Pension Consultants
(Chico CA / Sacramento CA)

Associated Pension Consultants logo

Plan Document Specialist

Jocelyn Pension Consulting
(Telecommute / Boulder CO / San Rafael CA)

Jocelyn Pension Consulting logo

DC or DB Administrator

Farmer & Betts, Inc.
(Telecommute / Tacoma WA / Tualatin OR / Littleton CO)

Farmer & Betts, Inc. logo

Retirement Plan Administrator

My Benefits, LLC
(Telecommute / Daphne AL / Atlantic Beach FL)

My Benefits, LLC logo

Director of 401(k) Implementation, Core

Human Interest
(Telecommute / Mill Valley CA)

Human Interest logo

Retirement Plan Administrator

RSW & Associates
(CT / NJ / NY)

RSW & Associates logo

DB Retirement Plan Administrator

The Nolan Company
(Telecommute / Overland Park KS)

The Nolan Company logo

401(k) Consultant

TPS Group
(Telecommute / North Haven CT)

TPS Group logo

DC Retirement Plan Administrator

The Nolan Company
(Telecommute / Overland Park KS)

The Nolan Company logo

DB/DC Administrator

Primark Benefits
(Telecommute / Burlingame CA)

Primark Benefits logo

Employee Benefits/Health and Welfare Attorney

Miller Johnson
(Telecommute / Grand Rapids MI / Kalamazoo MI / Detroit MI)

Miller Johnson logo

Director of Finance

NYCDC of Carpenters Benefit Funds
(New York NY)

Retirement Plan Administrator (Account Manager)

Kushner & Company
(Telecommute / Portage MI)

Kushner & Company 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

Overlapping Groups and Options in Family Situations

(Posted February 15, 2001)

Question 81: My client is four corporations owned by a father or his son (or both). The son is at least age 21.
CorporationSon's
Ownership
Dad's
Ownership
A100%0
B100%0
C51%49%
D46%54%

I think I have 2 controlled groups: one comprised of the 2 companies owned by the son, and one comprised of 3 companies. If each of the groups adopts a 401(k) plan, does one company get tested in both groups? I am suggesting giving father an option to tie the four corporations together.

Answer: I see the breakdown a little bit differently, but you're on the right track.

You are correct that A and B are in a controlled group, but C is also in that group. Why? Because son owns more than 50% of C, son is deemed to own his father's C stock. Thus son is deemed to own 100% of C as well. (See IRC 1563(e)(6)(B).)

C and D also are in a controlled group by themselves. The father and son, without considering any attribution, have 95% "effective control" and 100% controlling interest. (It is true that father is deemed to own son's stock in D, but that's irrelevant because we can create the controlled group before applying the attribution rules.)

So here we have Corp C as a part of two controlled groups. What does that mean? (This is an issue I discuss in detail at Q&A 31.) Basically there are two views. In my view, for qualified plan purposes you have in effect a single employer. The other view (held by some high-ranking minions of the IRS) is that you have two groups that must be tested separately in any plan adopted by any member of either group.

If you'd like to get rid of the uncertainty, an option may be the easiest way to do so, particularly in a family situation. The easiest way to do the job is to give the son an option to buy 5% of father's stock in D. Son then would be deemed to own 51% of D and hence to own all his father's stock as well. That would give him deemed ownership of 100% of all four companies, and all four would be in the same controlled group.

If the option were given the option instead, to get the desired result he would need to be given an option to buy at least 5% of both A and B. Then, after option attribution, son's effective control would be 46% and father's would be 5%, for a total of 51%, and both together would have a 100% controlling interest. That would put all four corporations together into a single controlled group.

Note: there is a price to pay for creating the single controlled group. Now, because of the component member rules of IRC 1563(b), which do not apply to qualified plans, Corporation D can compute its taxes without regard to the other controlled group-- effectively lowering its tax rate. For more information on this, see Chapter 9 of my book, Who's the Employer?.


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.