Family attribution rules and control group

I realize versions of the question have been asked, but I cannot find a specific clear answer. In fact, I have received differing opinions on it from my normal go-tos.

There are four business in question. We are looking at various retirement plan options available. Owners are spread between a married Father and Mother, their Son (over age 21), and the Son’s Wife.  There is no trust involvement, nor is there any buy-sell agreements or options agreements across these businesses.

Here is the ownership structure:

“A”

Father, 1/3

Mother, 1/3

Son, 1/3

“B”

Father, 1/2

Mother, 1/2

“C”

Father, 1/2

Mother, 1/2

“D”

Son, 99%

Son’s Wife, 1%

A, B, and C have several employees. D is a separate business that does not have employees (owner only).  All of my normal resources agree there is no issue with an Affiliated Service Group, leaving the only questions one of ownership control group.

Here is my take:

1. The son would not be attributed ownership of either parent for any of the other companies, as he has less than 50% ownership in A.
2. If 1 is true, a SEP should be allowed in D, with a separate 415 limit available.
3. B and C are certainly a control group.
4. Father and Mother would be attributed each other’s ownership, placing them above the 50% threshold in A to also then require they be attributed the son’s 1/3^rd share, placing the mother and father at 100% effective ownership, making A, B, and C all a combined Control Group, but still leaving D separate.

One TPA has said that #4 is wrong, and that A is not brought into the CG. Other's in my sphere agree with my read as above.

For now, the A/B/C question is moot as we will open the same Plan across each of these anyway. But it matters for future potential changes, as well as needing to know if we are clear to do the SEP in D for the son.

Thanks in advance.

20 hours ago, TennesseeVeteran said:

One TPA has said that #4 is wrong

At first I tend to agree with that position but it is not crystal clear in the Code and I looked at some articles that agree with you. See IRC Section 1563(f)(2)(B) and 1563(e)(5) and (6). This prohibits double attribution on constructive ownership. Originally I thought by applying (e)(5) to either spouse you are then also attributing again under (e)(6)(B). The $64,000 dollar question (I guess $72,000 question now) is whether the 50%+ is based on attribution but not actually considered attributed for the double counting prohibition. I changed my mind which you'll see at the bottom.

(B)Members of family

CuseFan:  Thanks for the input. I take "Stock constructively owned by an individual by reason of the application of paragraph (5) or (6) of subsection (e) shall not be treated as owned by him for purposes of again applying such paragraphs in order to make another the constructive owner of such stock" to mean simply that, say, the Mother's shares that the Father has attributed to him cannot further be attributed to another, such as the son, which makes perfect sense. But having the mother's shares attributed to the Father would not cross then to be attributed to the son, but rather now cross the threshold to which the son's shares now must also be attributed to the father. So in that case, the mother's shares and the son's shares are each attributed only once, and not passed through the father to another owner.  This was my reason for thinking A/B/C would all be a control group.