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

Featured Jobs

Senior Plan Administrator

Atlantic Pension Services Inc
(Remote / Kennett Square PA / DE / MD / NJ)

Atlantic Pension Services Inc logo

Pension Administrator

Creative Pension Consultants, Inc.
(Remote / Albany NY)

Creative Pension Consultants, Inc. logo

Plan Compliance Analyst (Administrator)

RPA
(Remote)

RPA logo

Retirement Plan Relationship Manager/Consultant

The Retirement Plan Company (TRPC)/an ABG firm
(Remote)

The Retirement Plan Company (TRPC)/an ABG firm logo

Retirement Plan Quality Assurance

ERISA Services, Inc.
(Remote / Knoxville TN)

ERISA Services, Inc. logo

Retirement Plan Administrator

Nicholas Pension Consultants
(Remote / Corona CA / Rancho Cordova CA)

Nicholas Pension Consultants logo

ERISA Counsel

Human Interest
(Remote)

Human Interest logo

Retirement Plan Analyst/Administrator

Compensation Strategies Group, Ltd.
(Remote / Beaumont TX)

Compensation Strategies Group, Ltd. logo

Quality Assurance Manager

Nova 401(k) Associates
(Remote)

Nova 401(k) Associates logo

View More Employee Benefits Jobs

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

Nonprofits and Controlled Groups

(Posted March 19, 2001)

Question 85: X corp is a not-for-profit entity. X corp is the sole member and controlling entity of Y hospital. X corp also created several for-profit entities. Each for-profit entity issued all of its stock to a trust. X corp is the sole beneficiary of each trust. Are X corp, Y hospital and each of the for-profit entities a controlled group under Internal Revenue Code section 414?

Answer: Let's start at the most basic level. We have a series of trusts, each of which has a single beneficiary, X, and each of which owns 100% of the stock of a corporation. X is deemed to own 100% of what each trust holds, because it is the sole beneficiary. Thus, after attribution, X is deemed to own 100% of the stock of each business. That's a classic parent-subsidiary controlled group. All of those businesses are treated as a single entity under Code section 414(b).

Now we come to Y. Y is a nonprofit organization, but its sole member, X, controls the Board of Directors. With regard to this situation, the IRS has said privately that control of the Board is tantamount to ownership of the stock, which the IRS would say causes Y to be under common control with X and its profit-making subsidiaries.

However, there is doubt on that issue. For one thing, there is absolutely nothing in Code section 414(c) or the regulations under Code section 414(c) that justifies this conclusion. The IRS has said, in essence, "Until we figure out what to do with these situations, any reasonable good faith interpretation of the Code will do." The IRS does not presently seem to be in any great hurry to write any regulations on the subject.

So, with regard to all the entities other than Y, it is clear that they are in a controlled group. (There is no way I can see how 414(b) could be construed otherwise.) As for Y, you have a choice. If you want it to be part of the group, then go along with the IRS' analysis, and you can be reasonably confident that nobody will challenge you. If you really want Y to be separate, then you could argue that it is not literally under common control, based on the language of Code section 414(c) as it stands now.

The common control rules, including those relating to common control under IRC 414(c), are discussed in more detail in Chapter 12 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)

© 2022 BenefitsLink.com, Inc.