Who's the Employer

A Guide to Employee and Aggregation Issues Affecting Qualified Plans

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(Click on a chapter title to see the questions covered in that chapter)

INTRODUCTORY MATERIALS

	About the Author
	Acknowledgements
	Abbreviations
	New in This Edition

Chapter 1 - Introduction and Overview

	Q 1:1 For qualified plan purposes, who is treated as an employee?
	Q 1:2 Can these various ways of being an employee overlap?
	Q 1:3 What difference does it make to a plan if someone is an employee?
	Q 1:4 If in doubt, is there a problem with erring on the side of treating someone as an employee?
	Q 1:5 What difference does it make if two businesses are aggregated for plan purposes?
	Q 1:6 What types of entities are recognized for federal tax purposes?
	Q 1:7 How is the tax status of an entity determined?
	Q 1:8 Are there “entities” which are ignored even if they have multiple owners?
	Q 1:9 Who is a self-employed individual for plan purposes?
	Q 1:10 What is an owner’s earned income?
	Q 1:11 What are net earnings from self-employment?
	Q 1:12 How are self-employed individuals treated for plan purposes?
	Q 1:13 Who is the employer of a partner who is a self-employed individual?
	Q 1:14 How is the compensation of a self-employed individual determined for plan purposes?
	Q 1:15 Are there special rules for plan deductions of self-employed individuals?
	Q 1:16 How are ministers and other religious workers treated for purposes of determining if they are self-employed individuals?
	Q 1:17 How are self-employed individuals treated by welfare benefit plans?
	Q 1:18 What special rules apply to fishermen?
	Q 1:19 What is an owner-employee? What difference does it make?

Chapter 2 - Common Law Employees

	Q 2:1 Who is a common law employee?
	Q 2:2 Why are they called “common law employees”?
	Q 2:3 Other than qualified plans, what are the tax differences of being an employee or an independent contractor?
	Q 2:4 How do we tell if someone is an employee or an independent contractor?
	Q 2:5 What do the regulations tell us about employee status?
	Q 2:6 What is the Twenty Factor Test?
	Q 2:7 What issues are covered in the Twenty Factor Test of Rev. Rul. 87-41?
	Q 2:8 What is the current relevance of the Twenty Factor Test?
	Q 2:9 How have courts ruled on this issue?
	Q 2:10 Why did the IRS issue the payroll tax Audit Guidelines?
	Q 2:11 What is the effect of the Audit Guidelines?
	Q 2:12 What factors are considered under the Audit Guidelines?
	Q 2:13 What is involved in behavioral control?
	Q 2:13 What is involved in behavioral control?
	Q 2:15 How does training affect behavioral control?
	Q 2:16 How do evaluation systems show behavioral control?
	Q 2:17 What is involved in financial control?
	Q 2:18 What is a significant worker investment and how does it affect financial control?
	Q 2:19 How do unreimbursed expenses affect financial control?
	Q 2:20 How do advertising and the availability of the worker’s services to others affect financial control?
	Q 2:21 How does the method of payment affect financial control?
	Q 2:22 How does the ability to realize a profit or loss affect financial control?
	Q 2:23 How does the relationship of the parties help determine employee status?
	Q 2:24 How does an independent contractor agreement show the relationship of the parties?
	Q 2:25 What other documents show the intent of the parties?
	Q 2:26 How do employee benefits show the intent of the parties?
	Q 2:27 How do discharge procedures show the relationship of the parties?
	Q 2:28 How does the permanence of the relationship affect worker status?
	Q 2:29 How does the nature of the services relate to the relationship of the parties?
	Q 2:30 Are there items from the Twenty Factor Test that are no longer relevant or useful?
	Q 2:31 How do the audit guidelines compare with the Twenty Factor Test?
	Q 2:32 Do the Audit Guidelines consider industry practice or custom in evaluating whether a worker is an employee?
	Q 2:33 Do labor law determinations indicate employee status?
	Q 2:34 How does the existence of a separate corporation that nominally employs the worker affect determination of the worker’s status?
	Q 2:35 Is a corporate director an employee or an independent contractor?
	Q 2:36 Can a worker simultaneously be a common law employee and an independent contractor with respect to the same employer?
	Q 2:37 Are doctors, lawyers, and other professionals subject to different rules in determining whether they are employees?
	Q 2:38 What are the potential problems of misclassifying a worker?
	Q 2:39 What is the Microsoft decision?
	Q 2:40 What do we learn from the Microsoft decision?
	Q 2:41 Are you sure I cannot cover independent contractors under a qualified plan?
	Q 2:42 How can Section 530 relief help an employer?
	Q 2:43 Can IRS correction procedures be used to deal with classification mistakes?
	Q 2:44 What steps can an employer take to minimize the risk that it misclassifies workers?
	Q 2:45 How can an employer reduce the costs of misclassifying workers?
	Q 2:46 How does the IRS regard exclusionary clauses, such as the one in Q 2:45?
	Q 2:47 How does the Department of Labor view an exclusionary clause?

Chapter 3 - Uncommon Employees

	Q 3:1 Are corporate officers always treated as employees?
	Q 3:2 What is a statutory employee?
	Q 3:3 What is the “service agreement” for the statutory employee rules?
	Q 3:4 What is a “substantial investment in facilities” for the statutory employee rules?
	Q 3:5 What is a continuing relationship for the statutory employee rules?
	Q 3:6 Is someone who meets the other tests, but would be considered a common law employee, nonetheless a statutory employee?
	Q 3:7 Who qualifies as an agent-driver or commission-driver for the statutory employee test?
	Q 3:8 Who qualifies as a full-time life insurance salesperson for purposes of the statutory employee test?
	Q 3:9 What is a home worker for purposes of the statutory employee rules?
	Q 3:10 What is a traveling or city salesperson for purposes of the statutory employee rules?
	Q 3:11 How are statutory employees treated for withholding purposes?
	Q 3:12 Can an employer cover its statutory employees under its qualified retirement plan?
	Q 3:13 Can statutory employees set up qualified plans?
	Q 3:14 Are there workers who are treated by statute as independent contractors?

Chapter 4 - Leased Employees/PEOs

	Q 4:1 Where do we find the rules relating to leased employees?
	Q 4:2 What is a PEO?
	Q 4:3 What is a leasing organization?
	Q 4:4 What is a Client Organization or CO?
	Q 4:5 What is a recipient?
	Q 4:6 Is there a difference between a recipient and a CO?
	Q 4:7 What is a Worksite Employee?
	Q 4:8 What is a leased employee?
	Q 4:9 What is the difference between a leased employee and a Worksite Employee?
	Q 4:10 Can an independent contractor be both a leased employee and a leasing organization?
	Q 4:11 Must a leased employee be a common law employee of the leasing organization?
	Q 4:12 Can someone who is a common law employee of a recipient be a leased employee of the same recipient?
	Q 4:13 How can I tell if the leasing organization or the recipient is the true common law employer?
	Q 4:14 Are there any legislative proposals to address the issue of who employs workers under a leasing arrangement?
	Q 4:15 Should a PEO firm be prepared to pay the wages of those on their payroll, whether or not the firm is paid by the recipient?
	Q 4:16 Have there been any IRS rulings that a leasing organization is the true employer?
	Q 4:17 Have there been any court cases on whether the leasing organization is the true employer?
	Q 4:18 What are the consequences of the worker being a common law employee of the leasing organization?
	Q 4:19 What are the consequences of the worker being a common law employee of the recipient?
	Q 4:20 Is it possible that a worker is a common law employee of both the recipient and the leasing organization?
	Q 4:21 If the contract between the PEO and the CO says they are co-employers, does that make them dual employers?
	Q 4:22 Does it matter if state law provides that the PEO is a co-employer?
	Q 4:23 Can you summarize the consequences of different entities being the employer?
	Q 4:24 How did the Small Business Job Protection Act of 1996 (SBJPA) affect common law employee status?
	Q 4:25 What constitutes working on a substantially full-time basis for the recipient?
	Q 4:26 What hours count for purposes of the substantially full-time basis determination?
	Q 4:27 Do hours spent performing services for businesses other than the plan sponsor count for purposes of meeting the substantially full-time requirement?
	Q 4:28 What is the computation period for determining whether services are performed substantially full-time?
	Q 4:29 Can a plan treat a worker as a leased employee even if the worker has not met the substantially full-time requirement?
	Q 4:30 What determines if the employee is working under the primary direction and control of the recipient?
	Q 4:31 What are the pension consequences of being a leased employee?
	Q 4:32 How is compensation of the leased employee determined?
	Q 4:33 How does the recipient treat contributions and benefits the leasing organization provides the recipient?
	Q 4:34 Can a recipient’s plan offset contributions made to the leasing organization’s plan to determine if IRC §401(a)(4) is satisfied?
	Q 4:35 How does IRC §414(q), relating to highly compensated employees, relate to the leased employee rules?
	Q 4:36 How are hours of service for eligibility and vesting credited for leased employees?
	Q 4:37 Must the recipient cover a leased employee under the recipient’s plan?
	Q 4:38 Does a worker ever lose the status of leased employee?
	Q 4:39 What is the safe harbor exception?
	Q 4:40 What does it mean that leased employees constitute no more than 20% of a recipient’s nonhighly compensated work force? 04-40_files/filelist.xml
	Q 4:41 What is a safe harbor plan?
	Q 4:42 How do the leased employee rules apply to benefit plans other than retirement plans?
	Q 4:43 How do the leased employee rules affect a “lease to own” situation?
	Q 4:44 Can an employer obtain a ruling from the IRS regarding leased employee status?
	Q 4:45 Can a PEO obtain a ruling from the IRS on whether its Worksite Employees are its common law employees?
	Q 4:46 Can a company that leases employees file form 5500-EZ?
	Q 4:47 What is Rev. Proc. 2002-21?
	Q 4:48 What special terms does Rev. Proc. 2002-21 define?
	Q 4:49 Why did the IRS issue Rev. Proc. 2002-21?
	Q 4:50 What are the benefits of complying with Rev. Proc. 2002-21?
	Q 4:51 What are the consequences of not complying with Rev. Proc. 2002-21?
	Q 4:52 Can a PEO plan established after May 13, 2002 receive the relief available through Rev. Proc. 2002-21?
	Q 4:53 Can a PEO defined benefit plan receive the relief available through Rev. Proc. 2002-21?
	Q 4:54 How does a PEO comply with Rev. Proc. 2002-21?
	Q 4:55 What information must be in the PEO’s notice?
	Q 4:56 What options does a CO have in response to a PEO’s notice?
	Q 4:57 Can a PEO limit or restrict a CO’s choices?
	Q 4:58 What must a CO do to cosponsor a PEO multiple employer plan under Rev. Proc. 2002-21?
	Q 4:59 What must a CO do to have the PEO transfer its Worksite Employee’s plan assets to a CO plan under Rev. Proc. 2002-21?
	Q 4:60 What happens if a CO does not make a choice in response to a PEO’s notice?
	Q 4:61 What happens if a CO does not timely comply with all the requirements for its choice in response to a PEO’s notice?
	Q 4:62 How can notices be given under Rev. Proc. 2002-21?
	Q 4:63 What does the PEO do with the Spinoff Retirement Plan?
	Q 4:64 When must assets be transferred from the PEO plan to the Spinoff Retirement Plan?
	Q 4:65 When must assets be transferred from the PEO plan to the plans of electing COs?
	Q 4:66 If the PEO decides to terminate its plan and to comply with Rev. Proc. 2002-21, will there be any assets in the plan after the Compliance Date?
	Q 4:67 What does it mean to distribute from the Spinoff Retirement Plan and the terminating PEO plan “as soon as administratively feasible”?
	Q 4:68 Must distributions be made to participants even if the 401(k) distribution restrictions would be violated?
	Q 4:69 Is the PEO required to seek determination letters regarding its terminated or converted plan and the Spinoff Retirement Plan?
	Q 4:70 How is top heavy status determined in the first year after conversion to a multiple employer plan?
	Q 4:71 Can plans under IRS audit use Rev. Proc. 2002-21?
	Q 4:72 Can a PEO Retirement Plan use EPCRS to address qualification errors other than those discussed for which relief is afforded?
	Q 4:73 Does Rev. Proc. 2002-21 alter the determination of employee status of Worksite Employees?
	Q 4:74 Does Rev. Proc. 2002-21 affect the determination of leased employee status?
	Q 4:75 Does Rev. Proc. 2002-21 provide relief for COs?
	Q 4:76 Does Rev. Proc. 2002-21 affect employer welfare benefit plans established by a PEO?

Chapter 5 - Shared Employees

	Q 5:1 What is a shared employee?
	Q 5:2 Who is the employer of shared employees? How are hours of service credited?
	Q 5:3 How is a shared employee’s compensation determined for each of his or her employers?
	Q 5:4 Would the proposed §414(o) regulations have handled shared employees differently?
	Q 5:5 What strategies exist for dealing with shared employee situations?
	Q 5:6 Can there be shared leased employees?

Chapter 6 - Introduction to Controlled Groups

	Q 6:1 Why did Congress originally devise the controlled group rules?
	Q 6:2 What is a controlled group of corporations?
	Q 6:3 What is a parent-subsidiary controlled group?
	Q 6:4 What is a brother-sister controlled group?
	Q 6:5 What is a controlling interest for purposes of the brother-sister controlled group rules?
	Q 6:6 What is effective control for purposes of the brother-sister controlled group rules?
	Q 6:7 Are all individual, estate, or trust shareholders considered for the controlling interest and effective control tests?
	Q 6:8 Can controlling interest be based on voting power and effective control based on stock value (or vice versa)?
	Q 6:9 What methodology do you follow in determining if a brother-sister controlled group exists?
	Q 6:10 Can there be a brother-sister group with more than two members?
	Q 6:11 What is a combined group?
	Q 6:12 What is an insurance group?
	Q 6:13 Are facts and circumstances, such as the type of business involved, considered in determining whether a controlled group exists?
	Q 6:14 How is stock ownership determined for purposes of the controlled group rules?
	Q 6:15 How is voting power determined in determining if a controlled group exists?
	Q 6:16 How are stock values determined?
	Q 6:17 Can two corporations be part of a controlled group if they do not exist at the same time?
	Q 6:18 What other issues affect controlled groups?

Chapter 7 - Controlled Group Attribution Rules

	Q 7:1 What is the effect of the attribution rules?
	Q 7:2 What attribution rules apply to controlled groups?
	Q 7:3 Can the same shares go through more than one step of attribution?
	Q 7:4 What is option attribution?
	Q 7:5 What is an option?
	Q 7:6 Can options for controlled group purposes include options directly from the corporation, or are they limited to stock held by other shareholders?
	Q 7:7 How is an option to buy an option treated?
	Q 7:8 Can options be used deliberately to create a controlled group?
	Q 7:9 Can options be used to break up a controlled group?
	Q 7:10 How is stock attributed from partnerships?
	Q 7:11 How are limited liability companies (LLCs) treated in terms of the attribution rules?
	Q 7:12 How is stock attributed from estates and trusts?
	Q 7:13 How is stock treated which is held by a qualified trust?
	Q 7:14 How is stock attributed from corporations?
	Q 7:15 How is stock ownership attributed between husband and wife?
	Q 7:16 What is the divorce or separation exception to spousal attribution?
	Q 7:17 What is the noninvolvement exception to spousal attribution?
	Q 7:18 What attribution rules exist between parent-child and grandparent-grandchild?
	Q 7:19 Can parent-child attribution cause the parents’ two businesses to be a controlled group?
	Q 7:20 Is there a convenient methodology for determining whether two corporations are in a controlled group if the husband owns one corporation and the wife owns the other?
	Q 7:21 How is marital status determined for purposes of attribution?
	Q 7:22 Didn’t SBJPA of 1996 eliminate family aggregation? Why then are we dealing with it here?
	Q 7:23 Are there circumstances under which attribution could form alternative controlled groups?

Chapter 8 - Excluded Stock

	Q 8:1 Is there any kind of stock that is always excluded in determining controlled groups, regardless of the circumstances?
	Q 8:2 What is nonvoting preferred stock?
	Q 8:3 What is treasury stock?
	Q 8:4 What is “excluded stock” that can be excluded in determining parent-subsidiary controlled groups?
	Q 8:5 Under what conditions is stock described in Q 8:4 excluded in determining whether a parent-subsidiary controlled group exists?
	Q 8:6 What is the method for determining if a parent-subsidiary group exists if there is excluded stock?
	Q 8:7 What is “excluded stock” that can be excluded in determining brother-sister controlled groups?
	Q 8:8 Under what conditions is stock described in Q 8:7 excluded in determining whether a brother-sister controlled group exists?
	Q 8:9 What is the method for determining if a brother-sister group exists if there is excluded stock?
	Q 8:10 Who is a principal stockholder of a corporation?
	Q 8:11 What attribution rules are considered in determining if stock is excluded?
	Q 8:12 Who is an employee for the exclusion rules?
	Q 8:13 Who is an officer for the exclusion rules?
	Q 8:14 What are conditions which substantially restrict an owner’s right to transfer stock?
	Q 8:15 In whose favor does a transfer restriction run?

Chapter 9 - Component Member Rules

	Q 9:1 What is the significance of the component member rules for ordinary corporate income tax purposes?
	Q 9:2 Where do we find the component member rules?
	Q 9:3 Why do the component member rules not apply to qualified plans and other employee benefit plans?
	Q 9:4 What are the component member rules?
	Q 9:5 How can a corporation be excluded from being a component member of a controlled group?
	Q 9:6 What is a franchised corporation that is excluded from being a component member of a controlled group?
	Q 9:7 How does a corporation become an additional component member of a controlled group?
	Q 9:8 Can a corporation be a component member of more than one controlled group?
	Q 9:9 How are overlapping corporations handled for purposes of qualified plans?
	Q 9:10 Are there particular problems with foreign corporations as a part of a controlled group?
	Q 9:11 What are the consequences of eliminating the half year component member rules from the retirement plan arena?

Chapter 10 - Effects of Controlled Group Status

	Q 10:1 What is the employee plan question the controlled group rules answer?
	Q 10:2 Can a plan adopted by one member of a controlled group cover employees of another member of the group that has not adopted the plan?
	Q 10:3 Do employees of other controlled group members affect the minimum coverage and participation tests?
	Q 10:4 Must a corporation’s plan cover the employees of other controlled group members?
	Q 10:5 Could a plan cover employees of other group members without a specific clause to that effect?
	Q 10:6 Is a leased employee of a controlled group member deemed to be a leased employee of other controlled group members?
	Q 10:7 Has an employee separated from service if he or she was working for one member of a controlled group and starts working for another?
	Q 10:8 Has an employee severed employment for purposes of the 401(k) distribution rules if he or she changes employers within a controlled group?
	Q 10:9 What is the employment commencement date of someone who starts working for one member of a controlled group and moves to another member of the group?
	Q 10:10 Must an employer count all hours of service for all controlled group members for purposes of eligibility, vesting, and benefit accrual?
	Q 10:11 For benefit accrual purposes, must an employer count all compensation paid to an employee by all members of a controlled group?
	Q 10:12 How are the IRC §401(a)(17) limitations on compensation applied to a controlled group?
	Q 10:13 How are the controlled group rules applied to the limitations of IRC §415?
	Q 10:14 Are the controlled group rules modified for purposes of the IRC §415 limitations?
	Q 10:15 How are corporations in a controlled group treated for purposes of the IRC §416 top heavy rules?
	Q 10:16 Are employees of other controlled group members counted in doing ADP/ACP testing for a 401(k) plan?
	Q 10:17 How are the IRC §404(a) limitations on deductibility applied to controlled groups?
	Q 10:18 Since there are no regulations on the allocation of the IRC §404 deduction limit, can one corporation deduct contributions made for employees of another controlled group member?
	Q 10:19 Are the minimum funding standards of IRC §412 and related penalties under IRC §4971 subject to the controlled group rules?
	Q 10:20 Can a controlled group of corporations take advantage of the Separate Line of Business (SLOB) rules in IRC §414(r)?
	Q 10:21 Are controlled group members aggregated to determine if an employee is a highly compensated employee under IRC § 414(q)?
	Q 10:22 Are controlled groups aggregated for purposes of the participant loan provisions?
	Q 10:23 Are the controlled group rules used in dealing with qualified replacement plans under IRC §4980?
	Q 10:24 Are the controlled group rules used to determine if a payment is a lump sum distribution?
	Q 10:25 Are the controlled group rules used to determine if a prohibited transaction has occurred?
	Q 10:26 How are the catch-up rules of IRC §414(v) status?
	Q 10:27 Do the controlled group rules affect the employer stock rules of IRC §401(a)(22)?
	Q 10:28 How do the controlled group rules affect SEPs?
	Q 10:29 How do the controlled group rules affect SIMPLE IRAs and SIMPLE 401(k) plans?
	Q 10:30 How do the controlled group rules affect EGTRRA’s waiver of determination letter user fees for new small plans?
	Q 10:31 How do the controlled group rules affect EGTRRA’s waiver of determination letter user fees for new small plans?
	Q 10:32 Can a member of a controlled group file form 5500-EZ?
	Q 10:33 How are controlled group members treated for purposes of filing form 5500?
	Q 10:34 Do the controlled group rules apply for purposes of other employee benefit provisions?
	Q 10:35 How do the controlled group rules affect ESOPs?
	Q 10:36 What are the corporate income tax consequences of being a component member of a controlled group?
	Q 10:37 How does a controlled group of corporations compare to an affiliated group of corporations?

Chapter 11 - Changes in Group Members

	Q 11:1 Is there a grace period for participation when there is a change in a controlled group?
	Q 11:2 What is a change in group membership that qualifies for the free pass of the participation and coverage requirements?
	Q 11:3 Is a similar grace period available for the separate line of business rules when there is a change in a controlled group?
	Q 11:4 Is there a grace period for the application of the IRC §415 limits on benefits and contributions?
	Q 11:5 Is there a severance of employment when there is a change in controlled group membership?
	Q 11:6 Is aggregation for purposes of the exclusive benefit rule extended when a controlled group breaks apart?
	Q 11:7 Are there any transition rules for SIMPLE plans and IRA arrangements?
	Q 11:8 Are there any transition rules for SEP plans?
	Q 11:9 Are there any other provisions of the pension law for which there is a transition period when group membership changes?
	Q 11:10 Must failing businesses be counted in applying the common control and controlled group rules?
	Q 11:11 How are changes in group status handled for coverage and nondiscrimination testing if the grace period described in Q 11:1 is not available?

Chapter 12 - Common Control Groups

	Q 12:1 What does the Code say about groups under common control? How do they compare to controlled groups?
	Q 12:2 What types of employers can be members of a group under common control?
	Q 12:3 How is ownership of group members determined?
	Q 12:4 What attribution rules are used in determining if a common control group exists?
	Q 12:5 What are the exclusion rules applicable to common control groups?
	Q 12:6 Are the component member rules applicable to common control groups?
	Q 12:7 What are the effects of being a member of a group of trades or businesses under common control?
	Q 12:8 What happens when a common control group changes membership?
	Q 12:9 How are tax-exempt entities and governmental units treated under the controlled group and common control rules?
	Q 12:10 How are the common control rules applied in IRC §415(h) situations?
	Q 12:11 How do the common control rules of 414(c) relate to common control rules for MEWAs?

Chapter 13 - Affiliated Service Groups

	Q 13:1 Why did Congress adopt the affiliated service group rules?
	Q 13:2 What types of affiliated service groups are there?
	Q 13:3 Where do we find the rules for ASGs?
	Q 13:4 What is a traditional ASG?
	Q 13:5 What is a service organization?
	Q 13:6 What is an A-Org?
	Q 13:7 What is an FSO for purposes of the A-Org rules?
	Q 13:8 What is a B-Org?
	Q 13:9 What is an FSO for purposes of the B-Org rules?
	Q 13:10 How can I tell if performance of employee services for an FSO or its A-Orgs is a “significant portion” of a B-Org’s business?
	Q 13:11 How can I tell if services are of a type historically performed by employees of the FSO and/or its A-Orgs?
	Q 13:12 Would an expense sharing arrangement with shared employees be an ASG?
	Q 13:13 What is a management function group?
	Q 13:14 What is a related business for purposes of a management function group?
	Q 13:15 What is a management function?
	Q 13:16 Do corporate directors provide management functions?
	Q 13:17 How do we know if the performance of management functions for a client is the “principal business” of a management firm?
	Q 13:18 Are related entities considered together in determining the principal business of the management organization?
	Q 13:19 If a management function group exists, are organizations related to the management firm included in the group?
	Q 13:20 If a management function group exists, are organizations related to the client included in the group, even if the management firm does not mange them?
	Q 13:21 What are the consequences of being in an affiliated service group?
	Q 13:22 Can a plan adopted by an ASG member cover the employee of another member of the ASG if that other member has not sponsored the plan?
	Q 13:23 Can an ASG be part of a qualified Separate Line of Business (SLOB) under IRC §414(r)?
	Q 13:24 How are the IRC §404 deduction limits applied to ASG members that jointly sponsor plans with other ASG members or cover their employees?
	Q 13:25 Are the funding requirements of IRC §412 and the related penalties under IRC §4971 computed separately for each ASG employer, or on an aggregate basis?
	Q 13:26 What are the nonpension employee benefit consequences of being in an ASG?
	Q 13:27 How are changes in affiliated service group members handled?
	Q 13:28 Can you have overlapping ASGs? What happens if you do?
	Q 13:29 Can an employer obtain a determination letter regarding ASG status?
	Q 13:30 Is there a methodology to follow in resolving ASG questions?

Chapter 14 - ASG Attribution Rules

	Q 14:1 How do the attribution rules affect whether an organization is part of an ASG?
	Q 14:2 Where do we find the attribution rules for traditional ASGs?
	Q 14:3 What types of attribution are there under IRC 318
	Q 14:4 Is double attribution allowed under IRC §318?
	Q 14:5 How is option attribution handled under IRC §318?
	Q 14:6 Can options be used to make someone an HCE?
	Q 14:7 How are the family attribution rules applied under IRC §318?
	Q 14:8 You say these family attribution rules apply for HCEs? But we got rid of family aggregation back with SBJPA. What gives?
	Q 14:9 How is attribution applied from a partnership to its partners?
	Q 14:10 How are interests held by estates attributed to beneficiaries?
	Q 14:11 How are interests held by S Corporations attributed to shareholders?
	Q 14:12 How are interests held by C Corporations attributed to shareholders?
	Q 14:13 How are interests held by trusts attributed to beneficiaries?
	Q 14:14 How is stock held by partners, corporate shareholders, and trust and estate beneficiaries attributed to the entity?
	Q 14:15 Are any of these rules modified for the key employee or HCE rules?
	Q 14:16 Besides traditional ASGs, key employees, and HCE rules, how are the attribution rules of IRC § 318 used in qualified plans?

Chapter 15 - The Late Great 414(o)

	Q 15:1 What does IRC §414(o) do?
	Q 15:2 What has the IRS done with the broad power given them in IRC §414(o)?
	Q 15:03 Under the proposed regulations, what is a leased owner?
	Q 15:4 In the context of the leased owner rules what is the “recipi-ent” and the “leasing organization.”
	Q 15:5 What would the proposed regulations do to leased owners?
	Q 15:6 When would the leased owner rules be effective?
	Q 15:7 What other rules were in the proposed regulations?

Chapter 16 - Extended Example

	Q 16:1 Is Dr. Casey an employee of Local Hospital?
	Q 16:2 How can we change things to make it more likely that Dr. Casey will be found to be an independent contractor?
	Q 16:3 Are the staff members at the Clinic common law employees of Casey, MD, Inc?
	Q 16:4 Are the staff members at the Clinic leased employees of Casey, MD, Inc?
	Q 16:5 Suppose the staff members are leased employees. Is the Hospital a PEO subject to Rev. Proc. 2002-21?
	Q 16:6 Suppose the staff members are leased employees. Does Dr. Casey’s corporation need to aggregate the service performed directly for Dr. Casey with the service provided under the lease to the medical corporation?
	Q 16:7 Are the doctor’s corporation and Local Hospital a management function group?
	Q 16:8 Are the doctor’s corporation and Local Hospital a traditional affiliated service group?
	Q 16:9 If there is an ASG, couldn’t Casey’s corporation take advantage of the “free pass” of the participation rules?
	Q 16:10 Is Dr. Casey a leased employee of the Hospital?
	Q 16:11 Is Dr. Casey’s corporation a PEO subject to Rev. Proc. 2002-21?

Chapter 17 - Related Employers

	Q 17:1 What is a related person or organization for management function groups or the leased employee rules?
	Q 17:2 What does IRC §267 do?
	Q 17:3 How does IRC §267 treat family members?
	Q 17:4 How are trusts related to each other and to their beneficiaries and grantors under IRC §267?
	Q 17:5 How are corporations related to each other and to their owners under IRC §267?
	Q 17:6 What other entities are related under IRC §267?
	Q 17:7 What attribution rules are used in applying IRC §267?
	Q 17:8 Are the attribution rules of IRC §267(c) used elsewhere in pension law?
	Q 17:9 What does IRC §707(b) do?
	Q 17:10 How are LLC’s treated for purposes of the related party rules?

Chapter 18 - Multiple Employer Plans

	Q 18:1 What is a multiple employer plan?
	Q 18:2 Who can be a sponsor in a multiple employer plan?
	Q 18:3 How is employee status affected by a multiple employer plan?
	Q 18:4 How does a multiple employer plan comply with the exclusive benefit rule?
	Q 18:5 How is service counted in a multiple employer plan for participation and vesting?
	Q 18:6 How is coverage testing run in a multiple employer plan?
	Q 18:7 How is ADP and other nondiscrimination testing run in a multiple employer plan?
	Q 18:8 How are the top heavy rules applied to a multiple employer plan
	Q 18:9 How are the 415 limits applied to a multiple employer plan?
	Q 18:10 How are deduction limits determined for a multiple employer plan?
	Q 18:11 How is compensation determined in a multiple employer plan?
	Q 18:12 How is HCE status determined in a multiple employer plan?
	Q 18:13 What are the filing requirements of a multiple employer plan?
	Q 18:14 What happens if there is an operational failure affecting one portion of a multiple employer plan?
	Q 18:15 What are the advantages of adopting a multiple employer plan?
	Q 18:16 What are the disadvantages of adopting a multiple employer plan?

Who's the Employer

A Guide to Employee and Aggregation Issues Affecting Qualified Plans

Table of Contents