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Who's the Employer?

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

Ignoring the Leasing Company

(Posted May 2, 2001)

Question 96: John recently turned all his staff over to a leasing company. He did this because the leasing company was able to offer him substantial savings on health insurance. Nothing has changed with the staff except who writes their paychecks. John has previously covered the staff under his qualified plan and wants to continue to do so. Are there any problems with him doing so?

Answer: Most likely, no. In almost all probability, John is still the common law employer of these workers. Accordingly, they are not his leased employees and they should be treated as he would anyone he employed directly. He can ignore whatever benefits the staffing firm is providing (assuming he is not cosponsoring the plan), because Internal Revenue Code section 414(n) does not apply to his situation.

In the unlikely event that he has ceased to be the common law employer and the staffing firm is the common law employer, then it becomes a little more tricky. In that case, these workers would be his leased employees (assuming they had ever worked at least 1,500 hours per year for him). As such, he would be deeemed (for purposes of Code sections 415 and 404) to have provided them with any benefits provided by the staffing firm's plan. Thus, he would need to take those benefits into account in determining his own plan and deduction limitations.

The leased employee rules and the issues surrounding common law employer determination are discussed in more detail in Chapter 4 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.