Owning Gold And Silver In Your IRA

 

We have previously talked about buying nontraditional assets in an IRA. We have talked about starting a business with IRA monies (these are the “ROBS”) as well as buying real estate.

Just this week someone reached out to me about buying real estate through their Roth. It would be a vacation home. Mind you, they might never vacation there themselves, but you and I would refer to it generically as a vacation home.

I am not a fan, and I have no hesitation saying so.

Put an asset in an IRA that is susceptible to personal use, and you are courting danger.  Talk to me about a commercial strip mall, and I might be OK with it. Talk to me about a vacation home, and I will (almost) always advise against it. There are a million-and-one alternate investments you can consider. It is not worth it.

I am looking at a case about another category of investments that can go south inside an IRA.

Gold and silver coins and bullion.

Let’s set this up:

(1)  IRAs are not allowed to own collectibles.

(2)  Precious metals are normally considered to be collectibles.

(3)  Therefore we do not expect to see precious metals in an IRA, except that …

(4)  Someone must have had a great lobbyist, as there is an exception for 

a.    Selected coins with a 99.5% fineness level

b.    Selected bullion with a 99.9% fineness level

You may have heard the radio commercials for American Gold Eagle and American Silver Eagle coins as a way “to hedge inflation” within your IRA, for example.

Mind you, I have no problem if you wish to own gold, silver, platinum or palladium. You can even own them in your IRA, but you have to respect the separation of powers that the tax Code expects in an IRA.

(1) The IRA is a trust. When you open an IRA, you are actually creating a self-funded trust. This means that it has a trustee. It will also have a custodian and a beneficiary.

a.    You open an IRA with Fidelity. Fidelity is the trustee.

b.    Someone has to hold the assets, probably stocks and mutual funds. This would be the custodian.

c.    Someone has to prepare the paperwork, including IRS filings such as a Form 5498 for funding the IRA.  This can be either the trustee or custodian. In our example, Fidelity is so huge they are probably both the trustee and custodian, making the two roles seamless and invisible to the average person.

d.    You are the beneficiary.

                                                        i.     Well, until you die. Then someone else is the beneficiary.

There is one more thing the tax Code wants: the beneficiary may not take actual and unfettered possession of IRA assets. More accurately, the beneficiary can take possession, but taking possession has a name: “distribution.” A distribution - barring a Roth or a 60-day rollover – is taxable.

Possession is not an issue for the vast majority of us. If you want your IRA monies, you have to contact Fidelity, Vanguard, T. Rowe Price or whoever. You do not have possession until they distribute the money to you.

How does it work with coins?

Let’s look at the NcNulty case.

Andrew and Donna McNulty decided to establish self-directed IRAs. The IRAs, in turn, created single-member LLC’s. These entities, while existing for legal purposes, were disregarded for tax purposes. The purpose of the LLCs was to buy gold and silver coins.

Over the course of two years, they transferred almost $750 grand to the IRAs.

The IRAs bought coins.

The coins were shipped to the McNulty’s residence.

Where they were stored in a safe.

With other coins not belonging to an IRA.

But do not fear, the IRA coins were marked as belonging to an IRA.

Good grief.

Where was the CPA during this?

Petitioners did not seek or receive advice from the CPA about tax reporting with respect to their self-directed IRAs or the physical possession of AE coins purchased using funds from their IRAs …. Nor did they disclose to their CPA that they had physical possession of the AE coins at their residence."

The Court decided that mailing the coins to their house was tantamount to a distribution. A beneficiary cannot – repeat, cannot – have unfettered access to IRA assets. There was tax. There were penalties. There was interest. It was a worst-case scenario.

Why did the McNulty’s think they could get away with taking physical possession of the coins?

There were a couple of reasons. One was that merely labelling them as IRA assets was sufficient even if the coins were thrown in a safe with other coins and other stuff that did not belong to the IRA.

Let’s admit, that reason is lame.

The second reason is not as lame – at least on its face.

Remember that IRAs are not allowed to own collectibles. The tax Code includes an exception to the definition of collectibles to allow an IRA to own coins and bullion.

There are people out there who took that exception and tried to graft it to the requirement to have independent custody of IRA assets. Their reasoning was:

The same exception to collectibles status applies to custody, meaning that you are permitted to keep coins at your house, maybe next to your sock drawer for safekeeping.

No, you are not. These people are trying to sell you something. They are not your friends. Review this with an experienced tax advisor before you drop three quarters of a million dollars on a pitch.

So, can an IRA own gold?

Of course, but somebody is going to store it for you somewhere. You will not have it in your possession. This means that you will have to pay for its storage, but that is an unavoidable cost if you want to own physical gold in your IRA. Perhaps you can visit one or twice a year and do a Scrooge McDuck in the vault storing the gold. I will leave that to you and your custodian.

Or you could just own a gold or silver ETF and skip physical ownership.

Our case this time was McNulty v Commissioner, 157 TC 10 11.18.21.

A Rough Rider’s Eagle And The Estate Tax

What is the value of something that you cannot sell?

Someone walked face-first into this issue with the IRS.

We are talking about Ileana Sonnabend, an avid art collector and a very wealthy woman. She died in 2007, leaving an art collection that included works by Andy Warhol, Jasper Johns and Robert Rauschenberg. Her estate was in the billion-dollar range, prompting her executors to sell pieces from the collection to pay federal and New York estate taxes. Those taxes approached $500 million.

There was a troublesome piece in the collection – Rauschenberg’s “Canyon.” Rauschenberg was a post – World War II American artist, and some of his work is described as “combine.” This means that the work includes different materials, such as Picasso mixing sand into his paints. The issue with “Canyon” is that it includes a stuffed bald eagle.

There are federal laws – the 1918 Migratory Bird Treaty Act and the 1940 Bald and Golden Eagle Protection Act – that says that one cannot traffic in bald eagles, even a stuffed one.

Ms Sonnabend purchased “Canyon” in 1959, well after the 1940 law. In 1981 (yes, 22 years later) the Department of Fish and Wildlife contacted her to inform her that her ownership violated federal laws. She was able to obtain a permit to retain “Canyon” and loan it to museums, but she was forbidden to sell it. She got the permit because Rauschenberg – who made the piece – provided a written statement that the bald eagle had been killed and stuffed by one of Teddy Roosevelt’s Rough Riders, well before 1940.

The government decreed that it must be informed of “Canyon’s” location at all times. If the artwork left the country for an exhibition, it would have to apply for a visa.

Seriously?

Ms Sonnabend died. The executors had to put a value on “Canyon” for the estate tax return.

How do you value art for an estate? You get an appraisal. The estate got an appraisal on “Canyon” from Christie’s, the auction house. Their appraisal? It was worth zero – nada, zippo, subtract one from one. One cannot sell “Canyon” without going to jail, with greatly cuts into its marketability. Two other auction houses gave the same appraisal, so the estate filed an estate tax return showing a zero value for “Canyon.”

The IRS of course saw otherwise. In 2011 the IRS sent the estate a report proposing a value of $15 million for “Canyon.” The estate disagreed and refused to pay. The IRS – in an example of why people hate the IRS – issued a formal Notice of Deficiency upping the value to $65 million.

NOTE: It is not as though your local IRS revenue agent came up with this value. This is specialized work. The IRS has an Art Advisory Panel that helps with these cases. The most that a Rauschenberg has ever received at auction however is $14.6 million, which seriously calls their $65 million figure into question.

Just to put sand in the paint, the IRS levied a special “understatement” penalty of 40%.

So how did the bright bulbs on the Art Advisory Panel come up with the $65 million figure? One of them, Joseph Bothwell, said that there:

... could be a market for the work. For example, a reclusive billionaire in China might want to buy it and hide it.”

Huh? An illegal sale to a “reclusive billionaire in China” is not considered an accepted valuation technique.

Another bulb, Stephanie Barron, further explained that the Panel evaluated “Canyon” without reference to any restrictive laws.

“The ruling about the eagle is not something the Art Advisory Panel considered,”’ she explained.

What? The most important factor in “Canyon’s” valuation and you did not consider it?

We all just cringed at the idea that this had zero value. It just didn’t make any sense,” she continued.   

Good grief.

Let’s have a brief review of the facts for Stephanie Barron. Ms Sonnabend owned an item. The government did not approve of her owning the item. This item could be anything. Let’s say – for example - that it is a Big Gulp in Times Square. The government does not want you to have it and wants to take it from you. The government could call in a drone, I suppose, but it instead shows restraint. The government cleverly takes the item from Ms Sonnabend without actually taking it from her possession. Is that a fair summary of what happened here?

OBSERVATION: One could argue that Ms Sonnabend suffered a theft loss.

The executors had a decision to make. If they didn’t pay the taxes, they would face IRS collections action. If they sold “Canyon” to raise the money to pay the taxes, they would go to prison for violating federal law.

How did this turn out? This month the IRS dropped its claim against the estate of Ileana Sonnabend over “Canyon.” The estate donated the work to the New York Museum of Modern Art. The estate agreed not to claim a tax deduction for the donation, as it previously argued that the work had no value.

This was not the IRS’ finest effort.