The Affordable Care Act includes the employer-shared responsibility provisions under Section 4980H of the Internal Revenue Code (IRC), which assesses a tax penalty to applicable large employers (ALEs) who fail to offer affordable and minimum value coverage to 95% of its full-time employees. Penalties are only assessed if one or more full-time employees obtain subsidized coverage through a health care Marketplace.
An ALE employs a monthly average of at least 50 full-time equivalent (FTE) employees during the preceding calendar year. Additionally, if companies have a common owner or are otherwise generally related, they are collectively a “controlled group” and must be combined for purposes of determining whether employ at least 50 FTEs. 1 If the controlled group’s combined total meets the 50 FTE threshold, then each separate company will be considered an ALE subject to the ACA’s employer-shared responsibility provisions and reporting requirements, even those companies individually may not average at least 50 FTEs
If your company is commonly owned with other entities, you should first determine if your company is part of a controlled group. Note that a controlled group may include TriNet clients as well as companies that do not use TriNet services.
TriNet strongly recommends that you consult with an attorney or tax advisor to determine if your company is part of a controlled group. Here are some guidelines for your general reference.
1. Parent-subsidiary controlled group. When one or more companies are connected through stock ownership with a common parent corporation that meet all the following:
2. Brother-sister controlled group. A group of two or more companies where five or fewer common owners (including individuals, estates or trusts) own directly or indirectly 2 (through the attribution rules under the Code) a controlling interest of each group and have effective control:
For example, two of the shareholders of Company A also own a percentage of Company B:
| Shareholder | Company A | Company B | Identical Ownership |
|---|---|---|---|
| Mary | 40% | 40% | 40% |
| Bob | 45% | 50% | 45% |
| Jane | 0% | 10% | 0% |
| John | 15% | 0% | 0% |
| 85% |
Company A and Company B are a brother-sister controlled group because 1) five or fewer shareholders own more than 80% of each corporation (85% of Company A and 90% of Company B), and 2) the same five or fewer shareholders own more than 50% of both corporations, taking into account identical ownership.
3. Combined group. A group of three or more corporations that meet all of the following:
Note that employers who file as qualified separate lines of business (QSLOBs) for other employee benefits purposes (such as non-discrimination testing) cannot rely on the QSLOB rules for purposes of the ACA employer shared responsibility provisions.
This general summary overview of the controlled group rules is intended for informational purposes only and is not and shall not be construed as providing legal, tax or accounting advice. The controlled group rules are complex, and companies are advised to consult with a tax or legal professional for a determination of their control group status (if applicable).
1 All entities under Code section 414(b), (c), (m) or (o) are treated as a single employer for purposes of calculating whether each entity is an ALE.
2 Attribution is the concept of treating a person as owning an interest in a business that is not actually owned by that person. When there is a brother-sister controlled group, the various attribution rules apply with certain family and business relationships under certain circumstances, e.g., spouse, child, parent and grandparent.
TriNet does not provide legal, tax or accounting advice.
