Taxing A Nondeductible IRA

Let’s say that you are married. Together you and your spouse earn $200,000.

BTW, congratulations. You have done well. Not Thurston Howell III well, but well enough that Congress considers you wealthy. Then again, one of the last times I paid attention Congress was working on a 10-percent approval rating.

How much of a Roth contribution can you make?

You know you can put away $5,500. If you are age 50 or over you can put away another $1,000. There are two of you – you and your spouse.

So, how much can you contribute?

Would you believe nothing?

Yep, zero. You make too much money.

How’s Lovey, Thurston?

And there is our segue to the nondeductible IRA. The “nondeduct” still exists, but it has been eclipsed (and rightfully so) by the Roth.

The nondeductible preceded the Roth. The idea is that you get no deduction going in, but only a percentage is taxable coming out.

Here is an example. You fund a nondeductible for a decade. You contribute $55,000. Years later, it is worth $550,000 and you start taking withdrawals. How is this taxed?

$55,000 divided by $550,000 is 10 percent. The inverse – 90 percent – is your gain. You pull out $20,000. Your taxable amount is $20,000 times 90% or $18,000.

This thing is a distant cousin to the Roth, where the whole $20,000 would be nontaxable. You would always Roth rather than nondeduct – if you can.

But you make $200 grand. No Roth for you.

But you can nondeduct. It is one thing the nondeduct brings to the party – there is no income limit. Make a zillion dollars and you can still put $5,500 into your nondeductible IRA.

If you do, the IRS wants you to attach a form to your return – Form 8606. It alerts them that a nondeductible exists, and it also reminds you of your accumulated contributions decades later when you begin withdrawals. You are going to need that number to calculate your percentage.

I was looking at case where the taxpayer had a nondeductible IRA and it was decades later. He had to calculate the taxable percentage, but he had never completed Form 8606 to do the calculation or to alert the IRS.

He withdrew $27,745. He did not report the $27,745 because it came from his nondeductible IRA.

COMMENT: And we know this is wrong. He was thinking of a Roth, where the whole thing is nontaxable. This is a nondeductible, and only a percentage is nontaxable.

The IRS wanted to tax it all. He had – gasp! – failed to attach…the…proper… form.

Problem was; he did not have the best documentation. No doubt it would been better to file and update that 8606 as he went along.

The Court looked at available documentation, which was sparse.

(1) There was a Citibank summary statement sometime around 1998 showing cost and value.

(2) The taxpayer had Forms 5498 from 2007 through 2013. If you have ever funded an IRA, then you have received one of these. Form 5498 shows your contributions for the previous calendar year. His 5498s showed that he put in no fresh money from 2007 onward.

(3) Taxpayer showed that he was high-income for the years before 2007 when he made his IRA contributions.

The Court gave him the benefit of the doubt. It knew that the IRA account was not a Roth. That left only deductible and nondeductible IRAs. If he was high income and covered by a plan at work, he could not have made a deductible IRA contribution. By process of elimination, the IRA had to be nondeductible.

He was not in the clear though. The Court reminded him that a nondeductible percentage of zero is almost impossible, as the IRA would have to go down in value. He had to calculate his percentage and would have taxable income, but not as much as the IRS wanted.

I suspect I will see this fact pattern as boomers with nondeductible IRAs enter retirement. The Tax Court has given us guidance on how to work around poor recordkeeping.

The case for the home gamers is Shank v Commissioner.

IRS Income Statistics For 2011 Are Out

IRS statistics are out.

• The top 1% of all filers paid approximately 35.1% of all federal income taxes. It takes adjusted gross income (AGI) of at least $388,905 to make the top 1%
• The top 5% paid 56.5%, with AGI of $167,728
• The top 10% paid 68.3%, with AGI of $120,136

The bottom 50%? They paid 2.9% of all federal income taxes. 

One should include the obligatory caveat that above statistics refer to federal income taxes and do not include social security taxes. It is questionable whether that adjustment would make any significant difference, though.

Summerlin, Las Vegas and Not Paying Taxes Until 2039

Let me ask you a question, and then we will discuss how taxpayers and the IRS get into high-stakes battles.

Our topic today will be “home construction.” Let’s say that there is a contractor. He buys the land, grades and prepares the dirt, and sends over employees to frame, roof, wrap and finish a house.  Would we say that he is a “home construction contractor?” Yes, we would.

Let’s change this up. Say that he still buys and preps the land, but he sends over subcontractors rather than employees. Is he still a home construction contractor? Yes, we would still consider him as such.

Switch the focus to the subcontractor. Would you consider the roofer to be a home construction contractor? If one allows the terms contractor and subcontractor to be interchangeable for this purpose, then we would say yes. The overall contract is a home construction contract, so arguably any division of such contract would also be a home construction contract. Any slice of a red velvet cake is still cake.

One more. Let’s say that a third party purchases and rezones the land, clears and grades, installs water and sewer lines, builds roads and installs landscaping. He then sells individual lots to homebuilders. What we have described is commonly called a “developer.” Would we consider the developer to be a home construction contractor?

Thus begins the tax issues of Howard Hughes Corporation and its Summerlin development in Las Vegas. This thing is massive, covering almost 35 square miles on the west side of the city.  The development covers an area approximately half the size of the District of Columbia. Summerlin does not expect to sell-out its lots until 2039. Hopefully I will have been long retired and be dipping my feet in an ocean somewhere while enjoying an afternoon mojito.

There are two general tax accounting methods for contractors. One is called the percentage-of-completion method, and the second is called the completed-contract method.

·         Under the percentage-of-completion, one recognizes income as the work progresses. Say that a contract with $5 million estimated profit is 40% complete. The taxpayer reports $2 million in profit ($5 million times 40%) to the IRS. The IRS likes this method.

·         Under the completed-contract, one does not report any income to the IRS until the job is done. In the above example, the taxpayer reports -0- profit, as the job is only 40% complete. The IRS does not like this method as much.

The IRS starts by saying that every contractor must use percentage-of-completion, but it allows a few exceptions to use completed-contract. One exception for completed-contract is for a home construction contract.

Ah, you already see where we are going with this, don’t you?

Howard Hughes Corporation is arguing that it can use the completed-contract because it is a home construction contractor. They are telling the IRS “see you in 2039.” 

The IRS is having none of this. They argue that Howard Hughes Corporation is a home construction contractor the same way The Phantom Menace was a watchable Stars Wars movie. That means that Howard Hughes Corporation defaults to the percentage-of-completion method. The IRS wants its taxes – plus interest and penalties, of course.

Each side has an argument. For example, in Foothill Ranch Company Partnership the IRS conceded that a contract for the sale of land by a developer was a long-term construction contract. In a Field Service Advise dated 5/8/97, the IRS stated that contracts for the sale of land requiring the seller to provide infrastructure or common improvements are construction contracts.

Rest assured that Howard Hughes Corporation has tax advisors who know this.

The IRS in turn determined in TAM 200552012 that a land development company selling lots through related entities did not qualify for completed contract, as the company did not actually build dwelling units. The IRS parsed words in a Code section with the cutting skills of Iron Chef Morimoto, noting that the statute uses the word “and” rather than the word “or.”

            Sigh. Can you believe what I do for a living?

The real estate, especially the development, industry is closely watching the resolution of this case. This is big-bucks. That said, does it make you uncomfortable to take an accounting method – by itself non-controversial – and stretch it to Dali-like and surrealist proportions? This is how tax law too often gets made.

I anticipate that the IRS will assert an argument involving contract aggregation and division. Once the land is implicated with further construction activity, the contracts (land and construction) will be aggregated. The ultimate sale (in our case, the home) will accelerate tax recognition on any underlying contract (in this case, the land). Might be a nightmare for accountants to trace all this, but it makes more sense than Howard Hughes Corporation delaying paying taxes on the sale of Summerlin lots until 2039.