Can Creditors Reach The Retirement Account Of A Divorced Spouse?

Let’s say that you divorce. Let say that retirement savings are unequal between you and your ex-spouse. As part of the settlement you receive a portion of your spouse’s 401(k) under a “QDRO” order.

COMMENT: A QDRO is a way to get around the rule prohibiting alienation or assignment of benefits under a qualified retirement plan. I generally think of QDROs as arising from divorce, but they could also go to a child or other dependent of the plan participant.

Your QDRO has (almost) the same restrictions as any other retirement savings. As far as you or I are concerned, it IS a retirement account.

You file for bankruptcy.

Can your creditors reach the QDRO?

Sometimes I scratch my head over bankruptcy decisions. The reason is that bankruptcy – while having tax consequences – is its own area of law. If the law part pulls a bit more weight than the tax part, then the tax consequence may be nonintuitive.

Let’s segue to an inherited IRA for a moment. Someone passes away and his/her IRA goes to you. What happens to it in your bankruptcy?

The Supreme Court addressed this in Clark, where the Court had to address the definition of “retirement funds” otherwise protected from creditors in bankruptcy.

The Court said there were three critical differences between a plain-old IRA and an inherited IRA:

(1)  The holder of an inherited IRA can never add to the account.

(2)  The holder of an inherited IRA must draw money virtually immediately. There is no waiting until one reaches or nears retirement.

(3)  The holder of an inherited IRA can drain the account at any time – and without a penalty.

The Court observed that:

Nothing about the inherited IRA’s legal characteristics would prevent (or even discourage) the individual from using the entire balance of the account on a vacation home or sports car immediately after bankruptcy proceedings are complete.”

The Court continued that – to qualify under bankruptcy – it is not sufficient that monies be inside an IRA. Those monies must also rise to the level of “retirement funds,” and – since the inheritor could empty the account at a moment’s notice - the Court was simply not seeing that with inherited IRAs.

I get it.

Let’s switch out the inherited IRA and substitute a QDRO. With a QDRO, the alternate payee steps into the shoes of the plan participant.

The Eighth Circuit steps in and applies the 3-factor test of Clark to the QDRO. Let’s walk through it:

(1)  The alternate payee cannot add to a QDRO.

(2)  The alternate payee does not have to start immediate withdrawals – unless of required age.

(3)  The alternate payee cannot – unless of required age - immediately empty the account and buy that vacation home or sports car.

By my account, the QDRO fails the first test but passes the next two. Since there are three tests and the QDRO passes two, I expect the QDRO to be “retirement funds” as bankruptcy law uses the term.

And I would be wrong.

The Eighth Circuit notes that tests 2 and 3 do not apply to a QDRO. The Court then concludes that the QDRO has only one test, and the QDRO fails that.

The Eighth Circuit explains that Clark:

… clearly suggests that the exemption is limited to individuals who create and contribute funds into the retirement account.”

It is not clear to me, but there you have it – at least if you live in the Eighth Circuit.

No bankruptcy protection for you.

Our case this time for the home gamers was In re Lerbakken.

Can You Make Gifts To Your Pastor?

Can you give someone money and not have it considered income?

Of course you can.

One way to do it is to die and leave money as a bequest.

That is a bit extreme for the average person, including me.

Another way is to give someone a gift. Granted, if the gift is large enough, you may have to report it. You do not actually write a check to Uncle Sam until your cumulative lifetime gifting exceeds $11,180,000, but you do have to file paperwork.

Can you make a gift to an employee?

Much harder.

The Code does allow some de minimis things, such as holiday hams – but even that has to be under $75. 

Oh, and it cannot be in cash, whether less than $75 or not. Cash taints the deal.

There is a narrow exemption for length of service or safety awards, but let’s pass on those details.

To a tax geek, the general answer is that anything you give an employee is taxable.

I was looking at a case a couple of weeks back that introduced a spin on this concept.

We have a pastor at a Minnesota church.

For the two years at issue he turned down a salary.

He did take a housing allowance.

And then it got interesting.

The church used donation envelopes. They were different colors, with each color having a different meaning.

The basic envelope was white. That was the weekly offering. It included a space where you could designate the amount of the donation that was for the pastor.

There were gold envelopes for special projects and events.

Then there were the blue envelopes. Blue envelopes were “gifts” to the pastor, and congregation members were instructed that those could not be deducted on their tax returns. The church did not track blue envelope donations, nor did the church make blue envelopes commonly available. If you wanted one, you had to ask for one.

For tax years 2008 and 2009, the pastor received the following;

                                                       2008              2009

          White envelopes              $40,000         $40,000

          Housing allowance          $78,000         $78,000

          Blue envelopes              $258,001        $234,826

When the IRS learned of this, they wanted tax on the blue envelopes.

What do you think?

Here is the Bible:

When I preach the gospel, I may make the gospel of Christ without charge, that I abuse not my power in the gospel.” 1 Cor. 9:18

Here is the Court: 

To decide this case, we must descend from the sacred to the profane."  

What sets up the tension in this case is that the term “gift” has a different meaning for tax than for common law. For common law, a gift is made voluntarily and without legal or moral obligation.

Tax views a gift as made from “detached and disinterested generosity” or “out of affection, respect, admiration, charity or like impulses.”

Huh? What is the difference?

The “disinterested generosity.”

That standard can be hard enough to pin down when reviewing a transaction between two individuals. How much harder can it get when reviewing a transaction between a group and an individual?

But that is what the Court had to decide.

The Court walked us through its decision process.

(1) Were donations provided in exchange for services?

The pastor did provide services, and to a reasonable person those blue envelopes look like an incentive for him to keep providing them.

Looks like a vote for income.

(2)  Did the pastor request the donations?

To his credit, the pastor referred to white envelopes when talking about tithes. He did not talk about blue envelopes, and a congregation member had to ask for one as they were not generally available.

Looks like a vote for a gift.

(3) Were the donations part of a routinized program?

That depends. Is the existence of blue envelopes per se evidence of a “routinized program?”

Can mere existence of a program rise to the level of a “routine?”

One can discern some routine no matter what the facts are, as the repetition of any action can be described as a “routine.” However, is that truly the intent of this test?

Call this one a push.

(4) Did the pastor receive a separate salary and what was the relationship of that salary to the personal donations?

The Court was very uncomfortable here:

We cannot ignore the sheer size of blue-envelope donations in 2008 and 2009, or the facts that they are very similar in amount in both years – within 10% of each other. We find it more likely than not that this means there was a ‘regularity of the payments from member to member and year to year ….’”

Oh, oh. We have our tie-breaker.

The Court had to discern the intent of the group, an almost mythical challenge. It saw blue-envelope donations total almost seven times the amount of white-envelope donations and asked: could it be that the congregation was trying to keep its popular and successful preacher?

CTG: I’ll play along: why, yes they were.

If they paid him more and donated less, perhaps they would not be as concerned.

CTG: By that reasoning, had he won the recent billion-dollar lottery they would not have to pay him at all. 

But he needs a certain amount just to pay his bills.

CTG: True, but how many parents across the fruited plain are giving their post-college kids money to live on? Is that income too?

The relationship between a parent and child is different.

CTG: The relationship between a faithful and his/her religious leader can also be different.

But being a minister is his job. Anything he receives for doing his job is – by definition – income.

CTG: Thank you. This is the clearest statement of your reasoning thus far. Why four criteria? Seems to me you could have fast-forwarded to the last one – the only one that really mattered.

The Court decided the pastor had income. He owed tax.

Register my surprise at zero, none, nada. I knew the ending of this movie from the first scene.

Our case this time was Felton v Commissioner.

Rolling Over An Inherited IRA

I am not a fan of the 60-day IRA rollover.

I admit that my response is colored by being the tax guy cleaning-up when something goes awry. Unless the administrator just refuses a trustee-to-trustee rollover, I am hard pressed to come up with a persuasive reason why someone should receive a check during a rollover.

Let’s go over a case. I want you to guess whether the rollover did or did not work.

Taxpayer’s mom died in 2008.

Mom had two IRAs. She left them to her daughter, who received two checks: one for $2,828 and a second for $35,358.

The daughter rolled over $35,358 and kept the smaller check.

On her tax return, she reported gross IRA distributions of $38,194 (there is a small difference; I do not know why) and taxable distributions of $2,828.

She did not have an early distribution penalty, as that penalty does not apply to inherited accounts.

The IRS flagged her, saying that the full $38,194 was taxable.

What do you think?

Let’s go over it.

There is no question she was well within the 60-day period.

The money went into an IRA account. This is not a case where monies erroneously went into something other than an IRA.

This was the daughter’s only rollover, so we are not triggering the rule where one can only roll IRA monies in this manner once every twelve months.

The Court decided that the daughter was taxable on the full amount.

Why?

She ran face-first into a sub-rule: one cannot rollover an inherited account, with the exception of a surviving spouse.

The daughter argued that she intended to roll and also substantially complied with the rollover rules.

Here is the Tax Court:

The Code’s lines are arbitrary. Congress has concluded that some lines of this kind are appropriate. The judiciary is not authorized to redraw the boundaries.”

This is a polite way of saying that tax rules sometimes make no sense. They just are. The Tax Court, not being a court of equity, cannot decide a case just because a result might be viewed as unfair.

The Court did not address the point, but there is one more issue at play here.

There are penalties for overfunding an IRA.

Say that you can put away $6,500. You instead put away $10,000. You have overfunded by $3,500.

So what?

You have to get the excess money out of there, that’s what.

Normally I recommend that the $3,500 be moved as a contribution to the following year, nixing the penalty issue.

Let’s say that you do not do that. In fact, you do not even know to do that.

For whatever reason, the IRS examines your return five years later. Say they catch the issue. You now owe a 6% penalty on the overfunding.

That’s not bad, you think. You will pay $210 and move on.

Nope.

It is 6% a year.

And you still have to get the $3,500 out.

Except it is now not $3,500. It is $3,500 plus any earnings thereon for five years.

Say that amount is $5,500, including earnings.

You take out $5,500.

You have five years of 6% penalties. You also have tax on $2,000 (that is, $5,500 minus $3,500).

If you are under 59 ½ you probably have an early-distribution penalty on the $2,000.

Plus penalties and interest on top of that.

I like to think that the Tax Court cut the taxpayer a break by not spotlighting the overfunding penalty issue.

Our case this time was Beech v Commissioner.

A Tax Preparer As A Witness

It is – once again – that time of year. Extensions. The business extensions came due last month. The individual extensions are due this month.

What a crazy thing to do for a living.

I have not had a lot of time to scan my normal sources, but I did see a case that caught my eye.

The taxpayers live in Illinois. They have an S corporation.

They rent a pole-barn garage to the S corporation. The corporation stores tractors, trailers and other equipment there.

Pretty normal.

They used a tax preparer for their 2012 and 2013 individual returns.

On their rental schedule, they deducted (among other expenses) the following:

·      Interest of $5,846 for 2012 and $4,336 for 2013

·      Taxes of $7,058 for 2012 and $10,395 for 2013

They also deducted the personal portion of their interest and taxes as itemized deductions.

I was anticipating that they double-counted the interest and taxes.

Nope.

They never could document the 2012 real estate taxes on their rental schedule.

Seriously?

Then we have 2013. The Court agreed that the taxes were paid, but they were paid by the S corporation.

Folks, to claim the taxes on a personal return one has to pay the taxes personally.

There went the rental real estate tax deduction for both years.

Onward to the 2012 mortgage interest.

Same answer as the 2013 real estate taxes.

Yeeessh.

The Court was a little more lenient in 2013, sort of. While they disallowed any interest on the rental schedule, the Court did allow substantiated mortgage interest in excess of claimed interest as an itemized deduction.

The IRS next went in to bayonet the wounded and dead: it wanted a 20% accuracy-related penalty.

Of course they did.

A common defense to this penalty is reliance on a tax professional.

Taxpayers used a tax preparer for 2013 and 2013.

Seems to me they have a potential defense.

The Court then drops this:

Although their returns were prepared by a paid income tax preparer, the return preparer used income and expense amounts petitioner provided. Apparently, no source documents underlying the deductions were provided to the return preparer; according to the return preparer, petitioners had ‘horrible books and records.’”

And this is a witness for the taxpayers?

Because petitioners did not furnish the return preparer with complete and accurate information, they failed to establish that their reliance upon the return preparer constitutes ‘reasonable cause’ and ‘good faith’ with respect to the underpayments of tax.”

Wow.

I get it. The preparer might have gotten them out of a penalty on a technical issue, but given the poor quality of the records the preparer could not get them out of a penalty for the numbers themselves.

The taxpayers probably would have done better by not bringing their preparer to testify.

And then I noticed: it was a “pro se” case.

Which means that the taxpayers represented themselves.

COMMENT: Pro se does not mean that your preparer is not there. I for example can appear before the Tax Court as part of a pro se. I would then be there as a witness, and I would not considered to be “practicing.”

In this case the taxpayers made a bad call by bringing in their preparer.

The case for the home gamers is Lawson v Commissioner.

A Twist On A Penalty

I am looking at a tax case. There is no suspense or twist, but there was something at the end that caught my attention.

The case involves an Uber driver.

He deducted the following:

(1)  Vehicle expenses of $44,729

(2)  Travel expenses of $6,915

(3)  Repairs and maintenance of $5,345

(4)  Insurance of $3,349

(5)  Cleaning expenses of $751

I am not seeing a whole lot of technical here. Hopefully he kept documentation and receipts. Just sort, label, copy and provide to the IRS.

But the story goes chippy.

(1) The travel expenses were for trips to Florida seeking medical treatment.

COMMENT: So this is not a business deduction. It instead is a medical deduction, which he might not be able to use if he doesn’t have enough to itemize.

               He provided no documentation for these trips.

(2)  He had nothing to support the repairs and maintenance.

Odd. One would have thought he had a primary garage, and that garage could provide a printout. It might not account for every dollar deducted, but it should be a good chunk.

(3)  He did not provide documentation for the insurance, not even the name of the insurance company.

This is getting strange. I am beginning to wonder if he is a protester.

(4)  It turns out that the cleaning was dry cleaning. That may or may not be deductible, hinging on whether he was dry-cleaning a uniform. I am, for example, unable to deduct my dry cleaning, but then I do not wear a uniform.

Again, he offered no documentation.

(5)  I am curious about the vehicle expenses. Forty-four grand is a lot.

Turns out he deducted approximately 70,000 miles.

Problem is, he drove only 9,439 miles as an Uber driver.

Oh, oh.

On top of that he deducted both actual expenses and mileage.

No can do.

The IRS wanted almost $18,000 in tax.

I am not surprised, considering that the disallowance of the deductions swelled both his income tax and self-employment tax simultaneously.

The IRS also wanted a substantial-understatement penalty of almost $3,600.

COMMENT: This penalty applies when the additional tax due is more than the larger of $5,000 or 10% of the corrected tax liability (before any payments). The penalty is 20%, and it hurts.

Frankly, I am thinking he is doomed. He does not have a prayer, having provided no documentation for his expenses, even the easy documentation.

Twist: this penalty has to be approved by an IRS supervisor.

Happens all the time.

But the IRS failed to submit evidence to the Court that it was approved.

The IRS tried to reopen the record to submit said evidence.

Too late. The taxpayer had the right to object.

What would you do?

Of course. You object.

So did the taxpayer.

Without the evidence the Tax Court bounced the substantial accuracy penalty.

Mind you, he still owed tax of almost $18,000, but he did not owe the penalty.

The case for the home gamers is Semere Misgina Hagos v Commissioner.

You Receive A Wage Garnishment

I was minding my own business. My partner sweeps into my office and says we have to take care of something right away – hopefully that very afternoon.

Hey, I am a career CPA. Some level of ADD is almost requisite to longevity in this profession.

He drops an IRS Form 668-W on my desk.

There is something I had not seen in a while.

What is a 668-W?

A wage garnishment. The IRS refers to it as a “levy.” If you get to this point, you have almost gone through the belly of the whale. The IRS has sent notice after notice, giving you a chance to contest, request abatement, defer collection or set up a payment plan. You have ignored them all. They got angry. They are now garnishing your paycheck.

This notice goes to your employer, and your employer is charged with notifying you. Your employer is going to garnish your next paycheck. Your employer does not want to go resistance here, as an employer becomes liable should they just blow it off. And then there is a 50% “hi there” penalty on top of that.

The IRS publishes tables telling you how much you get to keep. Say that the you are married, have one kid and receive a weekly net check of $1,017.65. The table indicates that you can keep $541.35. The employer withholds and remits the $476.30 balance ($1,017.65 – 541.35) to the IRS.

On the upside, the IRS is not touching your health insurance or 401(k) withholding. On the down side, it is jonesing the rest of your paycheck.

Can you live on $541.35?

That is not the point.

The point is that the IRS wants you to reenter the grid and establish a payment plan. Once you do so, the IRS will release the levy. As far as they are concerned, you should have done so already. The levy is to slap you into reality.

And you have forfeited some (at this point) important procedural rights.

Say that there is a question whether you actually owe some or all of the tax. Had you paid attention to the increasingly strident string of IRS notices, you would have noticed one titled “Notice of Intent to Levy.”

That one is serious. Not as serious as the 668-W, of course, but serious.

At that time, you had the right to request an IRS appeals hearing, called a Collection Due Process hearing. That puts you in front of an Appeals officer to plead your case, including whether you actually owe some or all of what the IRS wants.

Say you ignored the Notice of Intent.

It is a year or two later and you receive the 668-W.

You bring it to me. You may note that I am not humored.

Guess what important right you forfeited by ignoring the earlier notice?

That’s right: being able to argue whether you actually owe some or all of the tax.

That is dandy if there is no question whether you owe the money.

Not my situation. The friend has a very good case that he does not owe (at least some) of the tax.

But we are past the point where I can force a collection hearing to talk about the matter.

Is it hopeless?

Nope. A proficient tax practitioner still has tricks.

Like?

Like an offer in compromise. You know, those middle of the night commercials to settle millions of dollars of tax debt for the change in your pocket.

Is the friend broke?

Not the point.

What is the point then?

There is more than one type of offer. The one I am considering has nothing to do with your ability to pay. It instead has to do with whether you actually owe the money. The first addresses doubt as to collectability. The second addresses doubt as to liability.

It is one way to get the IRS to review the file with an eye as to liability.

Is this what we are going to do?

Doubt it.

Why not?

Because an offer will stay that levy only so long. The IRS can still demand a weekly wage levy WHILE they are considering the offer. Will it happen? Maybe yes, maybe no, but why run the risk?

What is an alternative?

File an appeal.

An appeal shuts down all collections action, meaning that I do not have to bank on the IRS’ better nature to stay that levy. Appeals allows me to introduce evidence that the friend does not owe all the assessment. I am also hoping to get penalties abated, at least some, but that would be a bonus.

Should the friend’s situation have gotten to this point?

I am sympathetic. Those who have followed me know that I am generally pro-taxpayer, but that is not what we have here. There were notices, which were ignored. There was a statutory notice of deficiency, which was ignored. After the statutory notice, taxes and penalties were officially assessed, which was also ignored. There was a chance for reconsideration, which was ignored. 

During all this there was ALWAYS a chance for a payment plan.

As I said, you may note that I am not humored.

The Abbott Laboratories 401(k)

Something caught my eye recently about student loans. A 401(k) is involved, so there is a tax angle.

Abbott Laboratories is using their “Freedom 2 Save” program to:

… enable full-time and part-time employees who qualify for the company's 401(k) – and who are also contributing 2 percent of their eligible pay toward student loans – to receive an amount equivalent to the company's traditional 5 percent "match" deposited into their 401(k) plans. Program recipients will receive the match without requiring any 401(k) contribution of their own.”

Abbott will put money into an employee’s 401(k), even if the employee is not himself/herself contributing.

As I understand it, the easiest way to substantiate that one’s student loan is 2% or more of one’s eligible pay is to allow Abbott to withhold and remit the monthly loan amount. For that modest disclosure of personal information, one receives a 5% employer “match” contribution.

I get it. It can be difficult to simultaneously service one’s student loan and save for retirement.

Let’s take this moment to discuss the three main ways to fund a 401(k) account.

(1)  What you contribute. Let’s say that you set aside 6% of your pay.

(2)  What your employer is committed to contributing. In this example, say that the company matches the first 4% and then ½ of the next 2%. This is called the “match,” and in this example it would be 5%.

(3)  A discretionary company contribution. Perhaps your employer had an excellent year and wants to throw a few extra dollars into the kitty. Do not be skeptical: I have seen it happen. Not with my own 401(k), mind you (I am a career CPA, and CPA firms are notorious), but by a client. 

Abbott is not the first, by the way. Prudential Retirement did something similar in 2016.

The reason we are talking about this is that the IRS recently blessed one of these plans in a Private Letter Ruling. A PLR is an IRS opinion requested by, and issued to, a specific taxpayer. One generally has to write a check (the amount varies depending upon the issue), but in return one receives some assurance from the IRS on how a transaction is going to work-out taxwise. Depending upon, a PLR is virtually required tax procedure. Consider certain corporate mergers or reorganizations. There may be billions of dollars and millions of shareholders involved. One gets a PLR – period – as the downside might be career-ending.

Tax and retirement pros were (and are) concerned how plans like Abbott’s will pass the “contingent benefits” prohibition. Under this rule, a company cannot make other employee benefits – say health insurance – contingent on an employee making elective deferrals into the company’s 401(k) plan.

The IRS decided that the prohibition did not apply as the employees were not contributing to the 401(k) plan. The employer was. The employees were just paying their student loans.

By the way, Abbott Laboratories has subsequently confirmed that it was they who requested and received the PLR.

Technically, a PLR is issued to a specific taxpayer and this one is good only for Abbott Laboratories. Not surprisingly there are already calls to codify this tax result. Once in the Code or Regulations, the result would be standardized and a conservative employer would not feel compelled to obtain its own PLR.

I doubt you and I will see this in our 401(k)s.  This strikes me as a “big company” thing, and a big company with a lot of younger employees to boot.

Great recruitment feature, though.