Analysis of the Employee Retention Credit: The Aggregation Rules and Their Application

Chart of Accounts BOI Form 941-X Employee Retention Credit

Employee Retention Credit

As a United States Tax Attorney with over fifteen years of professional expertise in U.S. tax credits, IRS regulations, Treasury Tax Codes, and the Internal Revenue Code (IRC), I am well-positioned to provide detailed guidance on the Employee Retention Credit (ERC), focusing specifically on the Aggregation Rules. These rules are pivotal for businesses attempting to navigate the complexities of the ERC, especially in understanding how entities that are related or connected in certain ways may be treated as a single employer for the purposes of the credit. This document aims to dissect the relevant tax codes, IRS sections, Congressional laws, and Treasury Tax Codes, offering a clear path through the intricate landscape of the ERC’s Aggregation Test.

Legislative Framework

The ERC, initially established under the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020 and subsequently amended by the Consolidated Appropriations Act, 2021, and the American Rescue Plan Act of 2021, provides a framework for supporting businesses that retained employees during the COVID-19 pandemic. The Aggregation Rules, critical to understanding and applying the ERC, are deeply embedded within these legislative texts and the interpretative guidance provided by the IRS.

The Essence of the Aggregation Rules

The Aggregation Rules for the ERC are designed to determine when businesses that have a common ownership or are otherwise related should be treated as a single employer for the purposes of calculating and claiming the credit. This includes assessing the controlled group of corporations, trades, or businesses under common control, and affiliated service groups as defined under sections 414(b), (c), (m), and (o) of the Internal Revenue Code.

Relevant IRS Sections and Congressional Laws

  • Internal Revenue Code Sections 414(b), (c), (m), and (o): These sections provide the foundational definitions for controlled groups, businesses under common control, and affiliated service groups. They are crucial for understanding the relationships that trigger the Aggregation Rules for the ERC.
  • IRS Notice 2021-20 and IRS Notice 2021-49: These notices offer detailed guidance on the ERC, including how the Aggregation Rules apply. They are indispensable resources for businesses seeking to comprehend how these rules might affect their eligibility and the amount of credit available.
  • Section 2301 of the CARES Act: This section establishes the ERC, with subsequent amendments refining the scope and application of the credit, including how the Aggregation Rules impact the determination of eligible wages and the maximum credit available.

Application of the Aggregation Rules

Understanding and applying the Aggregation Rules necessitate a thorough analysis of the relationships between entities:

1. Determination of Control: Businesses must first assess whether they are part of a controlled group of corporations, a group of trades or businesses under common control, or an affiliated service group. This involves a detailed examination of ownership structures, brother-sister entities, parent-subsidiary relationships, and the service relationships among organizations.

2. Impact on ERC Eligibility and Calculation: Once it is established that the Aggregation Rules apply, businesses must aggregate their employees to determine their status as an eligible employer under the ERC. This includes calculating the total number of full-time employees across the aggregated group to assess ERC eligibility, especially concerning the distinction between small and large employers.

3. Documentation and Compliance: Maintaining comprehensive documentation that supports the determination of the aggregated group and its impact on ERC eligibility is imperative. This includes organizational charts, ownership records, and employee counts, which may be necessary for IRS review or audit.


The Aggregation Rules play a critical role in the administration and application of the Employee Retention Credit, affecting both eligibility and the credit’s amount. Navigating these rules requires a nuanced understanding of the relevant legislative and regulatory provisions, a task that can be daunting without professional guidance. Businesses are encouraged to consult with tax professionals to ensure that they accurately apply the Aggregation Rules in their ERC claims, thereby maximizing their potential benefits while adhering to the statutory and regulatory requirements.

Given the complexities associated with these rules and the potential for significant impact on the ERC, engaging with a knowledgeable tax attorney or advisor is highly recommended. This will ensure not only compliance with the current tax laws and regulations but also that businesses are positioned to take full advantage of the credits available to them under the CARES Act and subsequent legislation.

Call to Action:

Unsure how the ERTC Aggregation Rules apply to your business? Email us at or visit for expert guidance and tailored solutions.


The information provided is for general informational purposes only and is not intended as legal or tax advice. Consult a tax professional for specific advice tailored to your situation regarding the ERTC Aggregation Rules.


1. What are the Aggregation Rules under the ERTC?

The Aggregation Rules require that all companies under common control or that are affiliated service groups are treated as a single employer for the purposes of determining eligibility for the ERTC.

2. How do the Aggregation Rules affect ERTC eligibility?

If businesses are considered a single employer under these rules, their total number of employees is aggregated, which can affect whether wages paid to employees qualify for the ERTC.

3. What constitutes common control for the purposes of the ERTC?

Common control generally exists when five or fewer persons (or a trust or estate) own a controlling interest of each group and have effective control, typically meaning more than 50% of the business.

4. Can the Aggregation Rules impact the amount of credit available?

Yes, since the total employee count and wages of all aggregated businesses determine the maximum credit amount, aggregation can potentially reduce the per-entity credit if the combined employee count exceeds certain thresholds.

5. Are family members considered in the Aggregation Rules?

Yes, family attribution rules can apply, meaning business interests owned directly or indirectly by family members may be considered owned by a single person for determining common control.

6. What steps should businesses take to comply with the Aggregation Rules?

Businesses should review their ownership structures and affiliations with other companies to determine if they meet the common control or affiliated service group criteria, consulting a tax professional for detailed analysis.

7. How do Aggregation Rules apply to internationally affiliated companies?

International affiliations are considered in the same manner as domestic ones if they affect the control or service group structures under U.S. tax law guidelines.

8. What documentation is needed to support aggregation under the ERTC?

Companies should maintain detailed records of ownership, affiliated service agreements, and employee counts across all entities to support their aggregation status under the ERTC.

9. Can changes in business structure affect aggregation status during the year?

Yes, changes in business structure such as acquisitions or divestitures can affect aggregation status and should be evaluated promptly for ERTC eligibility impacts.

10. Where can businesses find guidance on applying the Aggregation Rules for ERTC?

Official IRS guidelines and notices provide details on the application of Aggregation Rules. Additionally, tax professionals can offer advice tailored to specific business circumstances.

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