IRS to Snoop On Your IRA

Let’s talk about IRAs – Individual Retirement Accounts.

Why? By mid-October the IRS is to report to Treasury its plans to increase enforcement of IRA contribution and withdrawal errors. TIGTA projects that there could be between $250 million and $500 million in unreported and uncollected IRA annual penalties.  This is low-hanging fruit for a Congress and IRS looking for every last tax dollar.

So what are the tax ropes with IRAs? Let’s talk first about putting money into an IRA.

IRA CONTRIBUTIONS

For 2012 you can put up to $5,000 into an IRA. That amount increases to $6,000 if you are age 50 or over. You can put monies into a regular IRA, a Roth IRA or a combination of the two, but the TOTAL you put in cannot exceed the $5,000/$6,000 limit. That $5,000/$6,000 limit decreases as your income increases IF you are covered by a plan at work. If you have a 401(k)/SIMPLE/SEP/whatever at work, you have to pay attention to the income limitation.

What errors happen with contributions? Let me give you a few examples:

(1)   Someone is over the income limit but still funds an IRA.

(2)   Someone funds their (say 2011) IRA after April 15 (2012) of the following year. An IRA for a year HAS to be funded by the following April 15^th. There is no extension for an IRA contribution, even if the underlying tax return is extended. If you make an IRA contribution on April 20, 2012, that is a 2012 IRA contribution. It is not and cannot be for 2011, because you are beyond the maximum funding period for 2011. Say that you fund your 2012 IRA again by April 1, 2013. Congratulations, you have just overfunded your 2012 IRA. The IRS will soon be looking for you.

(3)   You have no earned income but still fund an IRA. What is earned income? An easy definition is income subject to social security. If you have income subject to social security (say a W-2), you may qualify for an IRA. If you don’t, then you do not. If I am looking at a return with a pension, interest, dividends and an IRA deduction, I know that there is a tax problem.

What happens if you over-fund an IRA? Well, there is a penalty. You also have to take the excess funding out of the IRA. The penalty is not bad – it is 6%. This is not too bad if it is just one year, but it can add-up if you go for several years. Say that you have funded $5,000 for seven years, but you actually were unable to make any contribution for any year. What happens?

Let’s take the first year of overfunding and explain the penalty. You overfunded $5,000 in 2005. The first penalty year for 2005 would be 2006. Here is the math:

            2005 IRA of $5,000

                        2006                $5,000 times 6% = $300

                        2007                $5,000 times 6% = $300

                        2008                $5,000 times 6% = $300

                        2009                $5,000 times 6% = $300

                        2010                $5,000 times 6% = $300

                        2011                $5,000 times 6% = $300

                        2012                $5,000 times 6% = $300

So the penalty on your 2005 IRA of $5,000 is $2,100.

Are we done? Of course not. Go through the same exercise for the 2006 contribution. Then the 2007 contribution. And 2008. And so on. Can you see how this can get expensive?

As bad as the penalty may be on excess IRA funding, it is nothing compared to the under-distribution penalty. To better understand the under-distribution penalty, let’s review the rules on taking money out of an IRA.

IRA WITHDRAWALS

The first rule is that you have to start taking money out of your IRA by April 1st of the year following the year you turn 70 ½.

From the get-go, this is confusing. What does it mean to turn 70 ½? Let use two examples of a birth month.

            Person 1:         March 11

            Person 2:         September 15

We have two people. Each celebrates his/her 70th birthday in 2012. Person 1 turns 70 ½ in 2012 (March 11 plus 6 months equals September 11), so that person must take a minimum IRA withdrawal by April 1, 2013.

Person 2 turns 70 ½ in 2013 (September 15 plus 6 months equals March 15). Person 2 must take a minimum withdrawal by April 1, 2014.

I am not making this up.

Say you are still working at age 70 ½, and the money we are talking about is in a 401(k). Do you have to start minimum distributions? The answer is NO, as long as you do not control more than 5% of the company where you work. What if you roll the 401(k) to an IRA? The answer is now YES, because the exception for working is a 401(k)-related exception, not an IRA-related exception.

Let’s make this more confusing and talk about withdrawals from inherited IRAs. We are now talking about a field littered with bodies. These are some of the most bewildering rules in the tax code.

Inherited does not necessarily mean going to a younger generation. A wife can inherit, as can a parent. The mathematics can change depending on whether you are the first to inherit (i.e., a “designated” beneficiary) or the second (i.e., a “successor” beneficiary).

There are several things to remember about inherited IRAs. First, the surviving spouse has the most options available to any beneficiary. Second, the IRA beneficiary (usually) wants to do something by December 31st of the year following death. Third, a trust can be the beneficiary of an IRA, but the rules get complex. Fourth, your estate is one of your worst options as your IRA beneficiary.

Did you know that you are supposed to retitle an inherited IRA, being careful to include the original owner’s name and indicating that it is inherited, e.g., Anakin Skywalker, deceased, inherited IRA FBO Luke Skywalker? Did you know that a common tax trap is to leave out the “deceased” and “inherited” language? Without those magic words, the IRS does not consider the IRA to be “inherited.” This can result in immediate tax.

Having gone though that literary effort, it seems understandable that you are not to commingle inherited IRAs with your other IRAs. Heck, you may want to keep the statements in a separate room altogether from your regular IRAs, just to be extra safe.

Forget about a 60-day rollover for an inherited IRA. A rollover is OK for your own IRA but not for an inherited IRA. Mind you, you can transfer an inherited IRA from trustee to trustee, but you do not want to receive a check. You do that – even if you pay it back within 60 days - and you have tax.

Let’s say you inherit an IRA from your mom/dad/grandmom/granddad. Payments are reset over your lifetime.  You must start distributions the year following death. What if you don’t distribute by December 31st of the following year? The IRS presumes you have made an election to distribute the IRA in full within five years of death. So much for your “stretch” IRA.

Confusing enough?

One more example. You have IRA monies at Fidelity, Vanguard, T. Rowe Price, Dreyfus and Janus. When you add up all your IRAs to calculate the minimum distribution, you forget to include Dreyfus. What just happened? You have under-distributed.

How bad is the penalty for not taking a minimum distribution, you ask? The penalty is 50% of what you were required to take out but did not. 50 PERCENT!!! It is one of the largest penalties in the tax code.

EXAMPLE: Let’s say that the Dreyfus share of your minimum distribution was $1,650. Your penalty for inadvertently leaving Dreyfus out of the calculation is $825 ($1,650 times 50%).

The IRS has traditionally been lenient with the under-distribution penalty. Perhaps that is because the intent is to save for retirement, and this penalty does not foster that goal. Perhaps it is because a 50% penalty seems outrageous, even to the IRS. However, will a Congress desperate for money see low-hanging fruit when looking at IRAs?

CONCLUSION

If you are walking into an IRA situation, consider this one of those times in life when you simply have to get professional advice. The rules in this area can bend even a tax pro into knots. I am not talking about necessarily using a tax pro for the rest of your life. I am talking about seeing a pro when you inherit that IRA, or when you close in on age 70 ½. Be sure you are handling this correctly.

Have You Received an IRS Notice About Your Roth?

It came to our attention that the IRS is sending erroneous notices on 2010 Roth conversions. If this is you, you may remember that you were allowed to spread the tax cost of converting your regular IRA to a Roth IRA over two years.  The notice states that you owe tax for 2010, which you would had you not spread the tax over two years.

You do need to respond to the notice. The IRS is aware of the software glitch, however, so we expect these notices to be resolved expeditiously.

IRAs and Nontraditional Investments

We have received several inquiries over the last year or so about using IRAs for nontraditional investments. This frequently means real estate, perhaps commercial real estate to house a closely-held business. It might also mean using the IRA to start the business itself.

These types of transactions are not without risk. One has the risk of business failure or decline in property value, of course, but also the risk of disqualifying the IRA itself. This would be very bad, as this makes the IRA immediately taxable. To protect against this, one should roll-over the required funds from the “main” IRA into a separate IRA. Should the unfortunate occur, only the roll-over IRA will blow-up. One has contained the damage.

A nontraditional investment requires a self-directed IRA. You will need to find a custodian that will permit nontraditional investments. Most will not. Let’s say you found one. Let’s use the acronym SDIRA for a self-directed IRA in our discussion.

A SDIRA can invest in a privately-owned business. We already know that an IRA can invest in a non-private business, as these are the publicly-traded companies whose stocks are in your IRA or are in the mutual funds in your IRA. This is your Google stock or your Fidelity Contrafund.

The type of business entity is important. The SDIRA can invest in a C corporation but not in an S corporation. Why not? Because the IRS does not permit an IRA to be a shareholder in an S corporation.

The level of involvement in the business owned by the SDIRA is also critical. There are two key tax issues here:

·         The SDIRA cannot enter into a “prohibited transaction.” This is a death sentence. The SDIRA will lose its tax-exempt status and become immediately taxable. If you are under age 59 ½, there will also be penalties.

·         The SDIRA might enter into investments which themselves trigger a tax. This is not as bad as a prohibited transaction, as the overall SDIRA does not become taxable. There is tax only on the income. If the deal is good enough, paying tax may be acceptable.

Prohibited Transactions

The IRS defines a disqualified person as

·         The IRA account holder

·         A family member of the account holder.

o   This goes vertical: grandparents, parents, children and spouses

·         An entity owned 50% or more by the account holder

Think about that last one. Here at Kruse & Crawford, I could theoretically use my IRA, buy an office building and rent it to the firm, as I am not a 50%-or-more owner. Rick Kruse however could not.

Let’s go though the prohibited transactions:

(A) Sale, exchange or leasing of any property between an IRA and a disqualified person

Example 1: My SDIRA purchases property from me or my wife.  This is prohibited. It doesn’t matter if it purchases the property in a “commercially reasonable” manner – i.e. obtain an appraisal. It is not allowed. Period.

Example 2: My SDIRA pays my daughter twenty-five dollars to mow the lawn on the property.  My daughter is a family member. It is prohibited. The amount of money is irrelevant. 

(B) Lending of money or other extension of credit between an IRA and a disqualified person

Example 3: I lend you $10,000 from my IRA.

Example 4: I personally guarantee a bank loan to my IRA.

Example 5: My IRA loans money to me. 

(C) furnishing of goods, services, or facilities between an IRA and a disqualified person

Example 6: I buy a piece of property through my SDIRA and hire my wife to manage the property.

(D) transfer to, use by or for the benefit of a disqualified person of IRA income or assets

Example 7: My SDIRA purchases real estate in Ireland. The SDIRA rents out the property for most of the year. However, my wife and I use the property for one week twice a year.   Even if my wife and I pay fair-market-value rent, this is a prohibited transaction.

(E) Act by a disqualified person who is a fiduciary whereby he deals with IRA income or assets in his own interest or for his own account

Example 8: I charge my SDIRA a fee to manage its stocks, bonds, mutual funds or other investments.

(F) receipt of any consideration for his own personal account by any disqualified person who is a fiduciary from any party dealing with the IRA in connection with a transaction involving IRA income or assets.

Example 9:  My SDIRA purchase a vacation house is in Augusta. I am offered the use of a Wyoming condo in exchange for use of the Augusta property during the Master’s tournament.

IRA Taxes

(1) Active Business Income (UBTI)

Earnings within an IRA are generally tax exempt. However, certain investments can create taxable income called “unrelated business taxable income” (UBTI).  Generally, UBTI is trade or business income which is not otherwise related to the tax-exempt purpose of the IRA. The idea here is that Congress does not want a tax-exempt entity competing with the taxable business enterprise next door to it.

So if you buy a Panera’s or a Caribou Coffee, you have UBTI.

There are some exceptions to UBTI, including but not limited to:

·         dividends

·         interest

·         royalties

·         rent from real property (however see debt-financed below)

·         sales of real property, if the property is not held as inventory or held in the ordinary course of business

Dividends and interest make immediate sense, as this means stocks and bonds - the traditional investments in an IRA.

UBTI Examples:

Example 1:  The SDIRA purchases a restaurant.  The income from the restaurant will be treated as UBTI.

Example 2:  The SDIRA purchases 25% of an LLC that flips (buys, fixes and sells) real estate. Since the real estate is considered inventory, the income to the SDIRA will be UBTI. 

(2) Debt-Financed Income ( UDFI)

If there is debt involved there will likely be UDFI.

Fortunately, UDFI refers only to the percentage of income resulting from the debt-financed portion of the property,

UDFI Example:

Example 3: My SDIRA purchases a B&B in Ireland putting down 75% and borrowing 25%. 

Note that if there was no debt, the rent would be tax-free to the SDIRA.

But there is 25% debt. This means that 25% of the rent is taxable to the SDIRA. The SDIRA does get to claim rental expenses, however.

Wealth Planning

You may have read that nontraditional IRAs are being used for wealth planning. For example, Max Levchin, the chairman of the social review site Yelp, sold over 3 million shares of Yelp held in his Roth IRA. There is no tax on Roth withdrawals if one waits until age 59 ½. Levchin is in his mid-30s. He will have to wait a while, but the money will be tax-free when it comes out.

Peter Thiel did a similar transaction. He bought shares of PayPal for approximately 30 cents per share while he was CEO of the company. In 2002 eBay bought PayPal for $19 a share. 

Now how did Levchin and Thiel avoid the prohibited transaction rules? Actually, it is very simple. You have to control the company to get into a prohibited transaction. Control is usually defined as at-least-50%. When you drain your IRA to buy that Five Guys Burgers and Fries location, chances are you will own 100%. Compare that to a publicly-traded company with tens if not hundreds of millions of shares. Neither Levchin nor Thiel came close to owning 50%. 

Is this fair? I would lead off by noting that “fair” is subjective, somewhat like asking what music one likes. Levchin and Thiel played the game between the lines. You or I could do the same. It might take a new skill set and a tractor-trailer load of luck, but you or I could (theoretically) do it.

Congress has noted these transactions. There is debate about whether this type of wealth accumulation should be permitted. Discussion has sometimes involved a “ceiling” on the amount invested/deferred in the Roth, but until now nothing has developed.

Senator Baucus Wants To End Stretch IRAs

Congress is looking to take away a planning option for IRAs as it seeks more money to fund its spending.

The proposal was snuck into the Highway Investment, Job Creation and Economic Growth Act of 2012. The bill was heard by the Senate Finance Committee, and Chairman Max Baucus (D., Mont.) recommended a provision curtailing the use of “stretch” IRAs.

What is a “stretch” IRA? Say you leave your IRA, or part of your IRA, to your son and daughter. Upon your passing, they take over (separate) IRA accounts. They cannot wait until 70 ½ to begin distributions, as these are inherited IRAs. They have to begin distributions by December 31 of the year following your death, but they are allowed to reset the distribution period to their own life expectancy. This allows the opportunity to have the IRA compound – or “stretch” – over their much longer life expectancy.

Truthfully, the numbers can be astounding. Consider a 78 year-old grandfather passing a $100,000 IRA to his granddaughter, who, upon her passing, transfers the remaining stretch IRA to her son or daughter. This wealth compounding is a reason financial planners like to work with stretch IRAs.

It is of course unpalatable to allow one to decide how to distribute the monies in his/her IRA, so Sen. Baucus has stepped-in to decide this matter for you. Under his proposal, most nonspouse inheritors would have to withdraw the entire amount from the traditional IRA over a period of five years. There would be exceptions for beneficiaries who are disabled, chronically ill, a minor, or a beneficiary no more than 10 years younger than the IRA owner.

Roth IRAs would remain unchanged. Nonspouse beneficiaries must begin distributions from the Roth by December 31 of the year after inheriting, but they can draw these out over their own expected life expectancies.

Why are people concerned? Here is a statistic: approximately 40% of the stock market is tied-up in 401(k)s, 403(b)s, IRAs and similar vehicles. It is an attractive target.

The Backdoor Roth IRA

The following question came up recently:

I make too much money to contribute to a Roth. Is there another way to make an additional contribution to my retirement savings?

How much is too much money? If you are single the upper limit is $122,000. If you are married the upper limit is $179,000. We are assuming, by the way, that you are covered by a plan – say a 401(k) - at work.

So what do you do?

Fund a nondeductible IRA. What is this? It is the third “flavor” of an IRA. We all know the regular IRA, where you put away money, deduct it on your tax return and pay tax on the monies down the road when you take the money out. For a Roth, you put away money, take no deduction but pay no tax when you take out the money. Then there is the nondeductible. You get no deduction and the money is (partially) taxable when you take it out.

For example, say that you put away $50,000 in nondeductibles which are worth $250,000 when you start drawing. The withdrawal is 20% nontaxable ($50,000/$250,000). Another way to say this is that 80% will be taxable.

Nondeductibles are the stepchild of IRAs. You want to fund a Roth (if you can) before considering a nondeductible.

Say that you are single, in your 40s and make $200,000 per year. I recommend that you fund a nondeductible IRA for $5,000, because $5,000 is the best you can do. You have to fund your IRA by April 15^th under all flavors of IRA. Let April 15^th pass and convert the nondeductible to a Roth. How do you do that? It may be as easy as going on the broker’s website and moving the monies between the two IRAs. Think of it as moving monies between a savings and checking account.

It used to be that one could not do this, but the tax rules have been changed to allow it.

What is the downside? There are two, and the second one can be an insurmountable hurdle to some taxpayers.

(1)    First, any income in the nondeductible becomes immediately taxable. In our example, if the $5,000 is now worth $5,450, you will have $450 of taxable income. If you do what I recommend, chances are the income will be negligible as you did not leave the monies in the nondeductible for very long.

(2)    Second, the pro rata rule. If you have monies in other IRAs, you have to use a fraction. The numerator is the amount you have in the nondeductible. The denominator is the total you have in all IRAs. For example, if you have a $5,000 nondeductible and $95,000 in a regular IRA, your ratio will be 5% ($5,000/ ($5,000 + $95,000). If you convert in this scenario, the conversion will be 95% taxable.

How do you handle issue (2)? If you have a retirement plan at work and the plan allows you to roll-in, then you would roll-in your $95,000 regular IRA. At this point the only IRA you have is the $5,000 nondeductible. Your ratio now is $5,000/$5,000, meaning that 0% is taxable.

The nice thing about a nondeductible is that there is no income limit. If you make $1 million per year, you can still contribute to a nondeductible.

How long do you let the money cool before converting? Tax advisors disagree. Some advisors recommend at least six months, whereas others say that you can do so the next day. I would recommend more than a day and not more than December 31^st of the year of the conversion.

One more bit of advice. If you fund a nondeductible, put it in its own account, preferably titled “Nondeductible.” Do not commingle your IRAs. This is not Neapolitan ice cream.