When seeking to open Solo 401k, first familiarize yourself with the controlled group definition as it may restrict you from opening a Solo 401k. When a business is treated as a member of a controlled group, the controlled group is treated by the IRS as a single employer for retirement plan purposes, including Solo 401k plan; all the businesses are treated as one business. As such, the employer must take into account all employees of the controlled group of businesses when determining employee eligibility and making contributions to a SEP, SIMPLE or qualified retirement plan, including a Solo 401k.
Controlled Group Defined
Two or more trades or businesses under common control–related through common ownership interests–make up a controlled group (Treasury Regulation 1.414(c)-2). A controlled group of employers may take any form such as sole proprietorships, partnerships, S-Corporations and C-Corporations, LLC and tax-exempt organizations, or a combination of any of these.
Controlled Groups Types
If the business owner has multiple businesses and is looking to open Solo 401k, he or she should first consult with his or her tax advisor to ascertain if multiple businesses make up a controlled group. There are three different types of controlled groups.
Type 1: Parent-Subsidiary Controlled Group
A parent-subsidiary controlled group is made up of a parent organization and one or more subsidiary organizations or affiliates of the parent organization. To make up a parent-subsidiary group, the parent organization must own at least 80 percent of one or more subsidiary organization (commonly known as having a “controlling interest”). Furthermore, at least 80 percent of each subsidiary organization must be owned by other members (if any) of the parent-subsidiary controlled group.
Type 2: Brother-Sister Controlled Group
To be considered a brother-sister controlled group, the same five or fewer persons must own, in aggregate, at least 80 percent of each of the organizations in the brother-sister controlled group. Also, the same five or fewer persons who meet the controlling interest requirement must have effective control (ownership of more than 50 percent) of each organization.
Type 3: Combined Controlled Group
A combined controlled group is made up of both parent subsidiary and brother-sister controlled groups that have a common parent organization from the parent subsidiary that is also a member of the brother-sister controlled group.
As you have noticed, each of these types of controlled groups focus on ownership. What formulates ownership for purpose of a controlled group varies depending on the types of entity being considered (e.g., corporations, partnerships, sole proprietorships, trusts, estates). To determine if a business is a member of a controlled group, the employer–often with the assistance of his or her personal accountant–must first determine ownership by answering two basic questions:
1. Which individuals or entities have ownership interest in the business?
2. What, if any, ownership interest does the business have in other businesses?
A controlled group of employers is treated as one employer for Solo 401k eligibility purpose. This means that all employees under that group must be considered for eligibility for the plan. If eligible to participate, all employees (including the owner) must receive plan contributions and therefore a traditional 401k instead of a Solo 401k plan must be opened.
Attribution Rules QUESTION:
Wife’s Business QUESTION:
I have been told by my attorney/accountant that I am no longer eligible for a solo 401k and should convert to a safe harbor plan. The current plan is under my LLC, which is a single member LLC with no employees owned entirely by me. But my wife is the sole member of another LLC that does have a full-time employee. I am being told that since we are married the employee would basically be considered mine as well.
2 Separate Businesses QUESTION:
Business #1 (has W-2 employees)
Existing Businesses QUESTIONS:
Currently one of my self-employed businesses sponsors a solo 401k which is a S-Corp and I own 100%. My wife is an employee and so the 2 of us are the Solo 401K plan participants. I want to know how much ownership I can have in other/separate businesses (LLCs or S-Corp) without violating any of the rules.
S-Corporation with Family Members QUESTION:
My husband and I are 61% owners on an S corp with some other family members. We have full-time employees and would like to set up a solo 401k. I understand that the solo is for people who do not have full-time employees. We do however have a property management business that runs airbnb’s my husband and I are the LLC owner-operators of this. I’m thinking if we opened up our solo 401 through this business we would not have much to fund the 401K. Is it possible to take wages earned from the S Corp and put them into the 401K that we opened under the property management company? Thanks for your time and assistance.
Change in Self-Employed Business QUESTION:
I have a question regarding my solo 401k account. I have registered another business with same partners as the business I have as “adopting employer” for current plan. Right now I am planning to have businesses active. At some point, I might want to close down the business that is “adopting employer”. What are my options to use same plan for both now and just the new one at some point? The new business will not be generating any money for this year and probably next year too so I am not in a rush.
What is the definition of direct interaction between companies?
Affiliated Service Group QUESTION:
What is the layman’s term definition of affiliated service group?
2 (Two) Solo 401k Plans QUESTION:
I have a multi member LLC (me and a friend owned 50/50), taxed as a partnership. I also do 1099 contract work on the side (not related to the LLC or through the LLC).
Do I use the same solo 401k I am opening through you for my 1099 income for both the multi member LLC income and the 1099 contract work income (not related to the LLC) or do I need to have one solo 401k for each income source, my 1099 income and the income from the multi member LLC?
Not Your Typical Solo 401k Control Group QUESTION:
Unfortunately, neither your nor your spouse would qualify for a solo 401k plan because the W-2 employee works over 1,000 hours when her hours are aggregated for both businesses. Essentially, by the W-2 employee working for both businesses, the affiliated service group rules come into play as outlined on page 38 of the IRS Chapter 7 found HERE.