Control Group Compliance/Testing Question

If an employer is a part of a control group, which benefit plans and test are pooled together for testing? I know 401(k) plans would be tested as one...what other benefit plans?

Were it that simple.  The starting point is to explore the requirements of 1.410(b)-7(c) regarding mandatory disaggregation and 1.410(b)-7(d) regarding permissive aggregation.  Browsing some IRS training material at  https://www.irs.gov/pub/irs-tege/epch1302.pdf provide a flavor for how these rules apply.

At a very high level, mandatory disaggregation is about when plans cannot be tested together, and permissive aggregation is about when plans can be - but are not required to be - tested together.

The rules can also get into how a plan's participants may be separated into groups that can be tested separately which is about permissive disaggregation.

One thing in particular that catches some practitioners off guard is when in a 401(k) plan elective deferrals, matching contributions and employer nonelective contributions are tested as if each is a separate plan.

Be keenly aware of what you know you don't know.  Hopefully you have access to an experienced practitioner who can guide you through how to apply these rules to a specific situation.

Welcome to the wonderful world of coverage and testing!

Yes, as Paul noted, first you run coverage testing, 410(b), for each qualified plan, the numerator is those non-excludables who benefit in the plan and the denominator is all nonexcludables for the entire controlled group.

When you see the coverage test fail for some plans, look to aggregate some of the “plans”, but you cannot aggregate a safe harbor 401(k) plan with an ADP tested 401(k) plan, you can’t aggregate a current year tested non-safe harbor 401(k) plan with a prior year tested 401(k) plan, and you can’t aggregate a basic safe harbor match 401(k) plan with a safe harbor QACA match or with safe harbor nonelective 401(k) plan, etc.

Keep in mind, a 401(k) plan is really 3 plans for purposes of running a coverage test, 1) deferrals, 2) match, and 3) nonelectives. Thus, if you apply the OEE rule to help the testing, you end up with 6 coverage tests but hopefully 3 of them have only NHCEs and those 3 would automatically pass.

If there are cash balance plans and/or defined benefit plans as well, the benefits that are accrued can aggregated with the nonelectives in defined contribution plan that share the same beginning and ending of the plan year with the DB or CB plan.

Also, any plans that get aggregated for coverage MUST also be aggregated for nondiscrimination testing. Which explains why you can’t aggregate a safe harbor 401(k) plan with a non-safe harbor 401(k) plan for the deferral coverage test and for the match coverage test. This also explains why you can’t aggregate a current year tested non-safe harbor 401(k) plan with a prior year tested non-safe harbor 401(k) plan for the deferral coverage test and for the match coverage test, and so on.

Does that help?

Given that this question was put in the Cafeteria Plans thread, I wonder if OP was looking for more basic answers, like health insurance plans, life insurance programs, disability insurance,  qualified retirement plans, etc rather than understanding the actual mechanics of aggregation, disaggregation, 410(b), testing different parts separately (such as deferral, match, nonelective). 

The reality is that any benefit, bonus, compensation, depending on what it is, might be subject to the combined rules. There was a case (the cite escapes me ) where even year end grocery gift cards were considered an ERISA covered benefit. 
If you have a particular benefit any of the companies are offering - and want to know if it has to be analyzed with the rest of the control group - you are best off talking to someone who can review those particulars and specifics and give you an answer. 

and yes, generally speaking, cafeteria plans are subject to non-discrimination testing under the myriad of control group rules and for small employers it isn't that unusual to see the HCE excluded from the cafeteria plan if testing has failed in the past.  

There are exceptions to everything off course, so whatever your particulars, you should have reviewed by someone who is well versed in control groups and combined testing for that particular benefit type (retirement plan, health, etc). 

Thanks everyone for the replies.  To give a little more context...I just started with a new company and noticed that ownership was highly concentrated (there are 2 individuals that own more that 80% of the organization). I also know that these 2 individuals have significant ownership stakes in a couple of other companies.  While I do not have full details of the ownership structure at the other companies,  I do know that the +80% level at my company, creates the possibility for a brother-sister control group to exist. 

When I notified my boss that we might be unknowingly a part of a control group, she wanted to know which benefit plans would need to be pooled together for testing purposes.  I told her I wasn't 100% certain, but that it would definitely include 401k and probably the other benefits that required discrimination testing.  I also let her know that this was a very complex matter that exceeded my level of expertise and that we really needed to speak with legal and most likely involve an ERISA attorney.

I know there are lots of experts lurking in these forums so I figured it was worth posting.  As of now, I think the boss is waiting to hear back from legal.

You'd be hard pressed to find any nondiscrim rule that doesn't apply on a §414 controlled group basis.  Of course there are some scenarios that permit disaggregation, etc., but the general rule is always that everything is viewed on a controlled group basis.  The specifics of each NDT rule vary considerably, so there's no easy way to address the possible issues here on the actual testing.