Header Section

Ed Slott welcomes you to The Slott Report, your source for IRA, retirement and tax planning information.

Showing posts with label beverly deveny. Show all posts
Showing posts with label beverly deveny. Show all posts

How Many Beneficiaries Are There With a Trust?

You name a trust as the beneficiary of your IRA. How many beneficiaries are there of the IRA? One.

IRA trust beneficiaryYou name a trust as the beneficiary of your IRA. The trust beneficiaries are your six children. How many beneficiaries are there of the IRA? One - the trust.

That’s right. There is only one beneficiary. The children do not get to split the IRA. They do not get to use their own life expectancies, they all have to use the age of the oldest trust beneficiary. They do not get to choose whether to take stretch distributions or take their entire share in one lump sum. They are not the beneficiaries - the trust is the beneficiary.

Let’s change the scenario a little. You name a trust as the beneficiary of your IRA. Your spouse is the beneficiary of the trust. How many beneficiaries are there of the IRA? I am guessing you answered one and you would be correct. The TRUST is the one beneficiary of the IRA. Your spouse cannot take a distribution from the IRA any time he or she wants. Your spouse cannot ask the IRA to distribute more than the required minimum.

While the children or the spouse in these examples may not be able to request a distribution from the IRA directly, the trustee of the trust can. In many cases, a trust beneficiary is the trustee of the trust as well as the beneficiary. So the beneficiary/trustee can have the trust request a distribution that is payable to the trust. Then the beneficiary/trustee can have the trust make a distribution to them.

So, just to be sure we all have this right, when you name a trust as the beneficiary of your IRA, how many beneficiaries are there of the IRA? You got it - ONE - the trust. Consider the consequences of using a trust as an IRA beneficiary carefully. Make sure the results are what you would want for your spouse or your children.

- By Beverly DeVeny and Jared Trexler

The Importance of Taking RMDs on Time with Taxes, Penalties Looming

There are several ways you can end up with a missed required distribution and a pile of penalties and tax-time confusion.
    take RMDs on time to avoid penalties
  • There is a required minimum distribution (RMD) that was not taken by the account owner
  • There is a required minimum distribution that was not taken by a beneficiary of an inherited account, including an inherited Roth IRA
  • The account owner is using a substantially equal payment plan (72(t) plan) to avoid the 10% early distribution penalty and did not take the full amount for the year

RMDs that are not taken each year by the account owner or beneficiary get hit with a penalty of 50% of the amount not taken. The penalty is reported on IRS Form 5329. The penalty can be waived for good cause. To have the best chance of getting the penalty waived, an IRA owner (or beneficiary) should immediately take the missed distribution(s), file the form for each year there was a missed distribution or shortfall, and attach a letter requesting the waiver.

When an account owner uses the 72(t) plan, the required distribution is not subject to the 50% penalty. Instead, if all or part of the total amount due for the year is missed, then the account owner will be subject to the 10% early distribution penalty retroactively on all 72(t) distributions taken from the IRA prior to age 59 ½. Again the penalty is reported on Form 5329. Unlike the 50% penalty, there is no waiver of the 10% penalty.

These three items are the same in the income tax treatment of the distributions. Retirement income is taxable in the year in which it leaves the retirement account - not in the year in which it was supposed to be taken. You don’t go back and amend a tax return for a missed distribution. It is taxable in the current year.

For example, Forgetful Fran did not take her RMDs for 2012 and 2013. Her tax preparer, Alert Archie, notices that there is no 1099-R for 2013 when he does her taxes in 2014. He figures out that she has missed two years of RMDs. He has her take those distributions now in 2014. He will not amend Fran’s return for 2012 to add in the forgotten RMD. He also will not include the 2013 RMD on her 2013 return when he prepares it. The distributions will be included in her 2014 income because that is the year she took the distributions. In certain circumstances, that can be a second penalty on a missed distribution. You might pay more in income tax because you have to lump all those distributions into one year. This could also affect other income sensitive items on the tax return such as deductions, credits, phase outs, etc.

So be careful out there. Avoid unnecessary pain and tax bills. Take your RMDs on time.

- By Beverly DeVeny and Jared Trexler

The Top 10 Roth Conversion Mistakes

We end Roth Conversion Week with a list you never want to be on. Roth conversions are powerful, tax-free retirement vehicles if handled correctly, but if a mistake is made, you may owe a good portion of your hard-earned savings to taxes and penalties. Here's a list of the Top 10 Roth IRA (and conversion) mistakes you must avoid.

1. Making a contribution when you are not eligible - There are income limits for making a Roth IRA contribution. They are indexed for inflation and can be found in IRS Publication 590 or on our website at www.irahelp.com/2014. You also must have compensation (generally earned income) in order to make a Roth contribution.

2. Contributing more than the annual limit - In 2014, the most you can contribute to a Roth IRA is $5,500 (plus an extra $1,000 if you are age 50 or over during the year). Any amounts you contribute to a traditional IRA will reduce the amount you can contribute to a Roth IRA, dollar-for-dollar.

3. Funds being moved from an IRA to an IRA get put into a Roth IRA instead - This could be due to your own error, your advisor’s error or one made by your IRA custodian. Always follow up to make sure funds land in the right account. On the other hand, since this is technically just an accidental Roth IRA conversion, you can always recharacterize the money back to a traditional IRA by October 15 of the year following the year the mistake occurred - if you have discovered the error. Again, always follow up.

4. Doing a “back-door” Roth conversion and not using the pro-rata rule - When doing a Roth conversion that includes after-tax amounts, you must include the balances in all IRA accounts, not just the account being converted. The pro-rata formula can be found on IRS Form 8606, which must be filed with the account owner’s tax return.

5. Incorrect valuation of assets when doing a Roth conversion - Many tax scams are based on undervaluing assets. This is also true when it comes to Roth IRA conversions. A fair market value must be used for the asset converted. A common example is an annuity contract with riders. Such riders can increase the fair market value of the annuity contract, increasing the tax you will owe if you do a Roth conversion of the IRA annuity.

6. Shifting self-employment or business income into a Roth IRA to avoid income tax - This was a popular “strategy” for several years, which IRS has now made a listed transaction. It generally involves multiple entities and a self-directed Roth IRA. Eventually, earnings accrue to the Roth IRA and are never taxed as income - or at least that’s what a number of taxpayers thought before the IRS and the Tax Court hit them with, in some cases, millions of dollars in penalties and interest.

7. Doing a recharacterization and not reporting the conversion/recharacterization on the tax return - Sometimes people mistakenly believe that since a full recharacterization effectively cancels out a Roth conversion then nothing has to be reported on their tax return. That’s not true. Certain information, such as the gross distribution reported on a 1099-R by a traditional IRA custodian for the conversion, must be reported on your tax return no matter what.

8. Doing a conversion directly from an employer plan to a Roth IRA and not reporting the conversion on the tax return - This is generally an oversight. The 1099-R from the employer plan will have a Code G for a direct rollover to another plan. This is generally a non-taxable event, but not when the assets go to a Roth IRA. CPAs in the midst of tax season may overlook this unless you remember to tell them that your direct rollover was actually a Roth IRA conversion.

9. Beneficiaries of inherited Roth IRAs not taking RMDs - If you have your own Roth IRA account, there are no required distributions during your lifetime. When a non-spouse beneficiary inherits a Roth IRA, however, they do have required distributions beginning in the year after the account owner’s death. The Roth IRA custodian is under no obligation to tell the beneficiary about those distributions or to calculate them.

10. The biggest mistake of all? Not having a Roth IRA in the first place. You are never too old to do a conversion and you are never too young to start contributing to either a Roth IRA or an employer Roth account.

This article is part of Roth Conversion Week at The Slott Report. Come back all week long for insight and analysis on Roth conversions, the benefits of tax-free planning, the possible pitfalls involved and more. Click here to view all articles.

- By Beverly DeVeny and Jared Trexler

Ruling to Remember: Math Issue Leads to 60-Day IRA Rollver Problem

A taxpayer we will call "Rebecca" represented that she received a distribution from her IRA on December 4, 2009. It was always her intent to rollover that distribution back into the IRA by the 60-day rollover deadline.

She was informed in writing by her financial institution that the redeposit deadline was February 4, 2010 (a date which was actually after the deadline). She followed that procedure and gave her financial advisor a check for the entire rollover amount for redeposit on the specified deadline date (February 4, 2010). Unfortunately, Rebecca's rollover actually happened on day 62.

"Rebecca" was unaware of any issues until she received an assessment detailing the error from IRS dated October 31, 2011. She then removed the distribution from the IRA and requested a PLR (private letter ruling) to right the financial institution's wrong.

Since "Rebecca" had the financial institution's counting error in writing she was able to prove that the 60-day rollover issue was due to the institution's errors. IRS waived the 60-day rollover requirement and granted her a period of 60 days from the ruling letter's issuance to move the rollover amount back into the IRA.

This PLR (Ruling 201416014) demonstrates that you shouldn't blindly rely on your financial advisor to count correctly or hope IRS doesn't pick up on the error.

- By Beverly DeVeny and Jared Trexler

The 3 Categories of IRA Beneficiaries You Must Know

There are three categories of beneficiaries that might want to stretch distributions from their inherited IRAs. A beneficiary's options will depend on which category they find themselves in.

ed slott IRA beneficiaries1. The Estate - this category has two categories of its own.
  • Account owner died before age 70 ½ - the beneficiaries of the estate must use the 5-year rule
  • Account owner died after age 70 ½ - the beneficiaries of the estate must use the remaining life expectancy of the deceased account owner, had he lived, for calculating required distributions
2. A Trust - If the trust is the only beneficiary named on the beneficiary form then there is only one beneficiary of the retirement account - the trust. There are many nuances when determining the age to use for calculating required distributions, but it will NOT be the age of each trust beneficiary since you only have one beneficiary. It is recommended that the trustee of the trust work with an advisor with specialized knowledge in this area and that may not be the attorney who drafted the trust. One key point to remember - DO NOT TRANSFER THE IRA ASSETS INTO THE TRUST - either during life or after death. That will be a taxable distribution and there will be no more retirement account.

3. Individual Beneficiaries - This is generally the best category for a beneficiary to be in. The inherited account should be split into inherited accounts for each beneficiary by the end of the year after the death of the account owner. Then each beneficiary can use their own age to stretch distributions over their lifetime.

There is one thing that is common to all beneficiaries. That is the titling of the inherited account. The deceased account owner’s name should remain in the title.

For example: John Smith, deceased, IRA for the benefit of - the estate, or the trust, or the individual beneficiary - whoever inherited the account.

- By Beverly DeVeny and Jared Trexler

How Old is ... ? (Retirement Planning Milestones)

I recently saw an article about how ERISA (Employee Retirement Income Security Act) is turning 40 this year. That piqued my curiosity, and I came up with the following list of birthdays for 2014.
  • Telephone Numbers: 184 years old - telephone numbers were first used in 1880
  • Income Tax 101 years old - income tax has been around since 1913
  • Social Security is 79 years old - Social Security started in 1935
  • Zip Code is 51 years old - 1963 is when the Post Office introduced zip codes
  • IRA is 40 years old - IRAs became available in 1974
  • 401(k) is 32 years old - the first 401(k) plans were established in 1982
On a more personal note, the important birthdays for IRA account owners are 59 ½ and 70 ½. Once an IRA owner reaches the actual day they turn 59 ½, there is no longer a 10% early distribution penalty on any distributions they take from any of their IRA accounts. It is probably a good idea to wait until the day after they are 59 ½ before they take the distribution just so there is no possibility of incurring the penalty.

The year a client turns 70 ½, not the actual day, is the year they have their first required distribution (RMD). The first RMD can be deferred until April 1 of the following year, but the RMD for that year must be taken by the end of the year. This results in two RMDs coming out in the same year. Any RMD amount not timely taken is subject to a penalty of 50% of the amount not taken.

So if you need something in your office or at home to celebrate during the year, you can use one of the events in the list above. Just be sure IRA account owners do not miss the 70 ½ milestone, that is the only one that comes with penalties.

Editor's Note: The Slott Report Mailbag will be posted tomorrow at www.theslottreport.com.

- By Beverly DeVeny and Jared Trexler

The 60-Day IRA Rollover Cheat Sheet - What Counts and What Doesn't

IRS has announced that they are going to go along with the Tax Court decision in the Bobrow case, but they won’t do so until at least January 1, 2015. What's this mean? Going forward, you will only be able to do one 60-day IRA-to-IRA rollover per year. No longer will you be able to do one 60-day rollover per IRA account within the same time frame.

60-day IRA rolloverA 60-day rollover is one where you receive a distribution from your IRA account made payable to yourself. You can cash the check and do anything you want with the money while it is outside of your IRA. You have 60 days from the date you receive the distribution to redeposit the IRA funds into the same or another IRA. If you do so, the distribution and subsequent rollover are a non-taxable event (reportable, but non-taxable).

The following 60-day rollovers DO count in the once-per-year rollover rule.

• Rollovers from one IRA to another IRA - this includes SEP and SIMPLE IRAs
• Rollovers from one Roth IRA to another Roth IRA

The once-per-year rollover rule applies separately to IRAs and Roth IRAs. Thus you can do one IRA-to-IRA 60-day rollover and one Roth-to-Roth 60-day rollover in the same year. The year is a full 12 months, not a calendar year.

The following 60-day rollovers do NOT count in the once-per-year rollover rule.

• Rollovers from IRAs to Roth IRAs, also known as Roth conversions
• Rollovers from IRAs to non-IRA employer plans like 401(k)s and 403(b)s
• Rollovers from non-IRA employer plans to IRAs or Roth IRAs

Once the new rules kick in, you’ll still be able to do as many transfers as you want during the year. In a transfer, IRA assets go directly from the old custodian to the new custodian. You don’t have access to the funds while they are out of your IRA.

- By Beverly DeVeny and Jared Trexler

After-Tax IRA Contributions, Distributions, Conversions at Tax Time

How do I tell IRS that my IRA distribution or Roth conversion is not taxable? We get this question fairly frequently at tax time - especially if the client has done a "backdoor" Roth conversion.

The answer is IRS Form 8606.
After-Tax IRA Distribution Tax Planning
You make an after-tax contribution to your IRA or a series of after-tax contributions to the IRA. Now it is time to take the money out or you want to do a Roth conversion of the IRA. How will IRS know that some of the funds are after-tax so you won’t have to pay tax again when they are distributed?

The first thing to realize is that the IRA custodian does NOT keep track of your after-tax contributions - even if you tell them that the funds are after-tax or keep the after-tax funds in a separate IRA. They have no way of knowing what you do on your tax return so they have no way of knowing if you really take a deduction for that IRA contribution. The 1099-R that you receive from the IRA custodian for the distribution is going to say that the taxable amount is not known.

Any time you make an after-tax contribution to an IRA, you need to file IRS Form 8606 with your tax return to tell IRS that you have after-tax funds in your IRA. Without this form, IRS will assume that any funds that are distributed from your IRA account are taxable.

Secondly, you have to tell IRS that you did a Roth conversion, even if the entire amount converted is IRA-after-tax funds. There is a special section on Form 8606 for reporting Roth IRA conversions.

Finally, Form 8606 will tell you how much of your IRA distribution is taxable. This is going to depend on the total amount you have in all your IRA accounts, including SEP and SIMPLE IRAs and the total amount of after-tax dollars in your IRA. You cannot isolate only the after-tax amount and say that is what you took out of your IRA. You have to divide your total account balance into the total of your after-tax amount and come up with a percentage. The percentage is applied to your total distributions for the year to determine what amount is taxable and what amount came out of your after-tax amounts.

Example: Your total IRA balance is $100,000 and your after-tax contributions are $10,000. $10,000/$100,000 = 10%. Ten percent of all your distributions for the year will not be taxable.

- By Beverly DeVeny and Jared Trexler

IRA Custodian Creates 60-Day Rollover Problems

In a recent 60-day rollover private letter ruling request, an individual was allowed to complete a rollover of only a portion of his IRA distribution. Here is what happened.

“Tony” wanted to do a Roth conversion of his SEP account balance. The new Roth account was an annuity. On August 10, Tony completed the Roth conversion paperwork. Six weeks later, and before his funds had left his SEP IRA account, Tony sent a cashier’s check to the Roth IRA custodian and directed that the funds be placed in his new Roth IRA. The custodian instead placed the funds in a non-IRA account.
IRA rollover problem
The delay by the SEP IRA custodian is one of the primary reasons why individuals do 60-day rollovers to move IRA funds. It is really hard to believe that it would take any financial institution more than six weeks to send your funds to another institution.

But Tony created more problems by his actions. Tony cannot front his own personal (non-retirement account) money to make the deposit in the Roth IRA and pay himself back when the IRA funds are finally released by his seemingly very reluctant SEP IRA custodian. If the Roth IRA custodian had followed Tony’s instructions, he would have had non-qualified funds in a qualified account. Tony’s personal funds are not eligible to go into a Roth IRA for anything other than an annual contribution. Any amount above that would be subject to a penalty of 6% per year for each year it remained in the Roth account. Luckily for Tony, the Roth IRA custodian did not put the funds in a Roth IRA, but instead put the funds into a non-qualified account, which is actually where they belonged.

Then Tony got the check from the SEP IRA and deposited the funds into his own checking account. Less than two weeks later, he sent money to the Roth custodian and requested a recharacterization of the Roth IRA. A Roth recharacterization can only be done as a direct transfer, never as a 60-day rollover. Apparently Tony did not understand the IRA rules at all. The Roth custodian placed the additional funds in a non-qualified account as well.

The end result of all of this was that IRS let Tony put some funds back into an IRA, but not the full amount of his original SEP IRA balance. Both of Tony’s IRA custodians made mistakes here. The SEP custodian did not timely release Tony’s IRA funds. The Roth custodian apparently did not tell Tony that his funds went into non-qualified accounts, despite his instructions to the contrary. But Tony made mistakes too. He did not follow the most basic of the IRA and Roth IRA rules. He was only spared the consequences of his actions by the mistakes of his custodians.

Because of a recent Tax Court ruling, it will be more difficult for individuals to move their IRA funds beginning next year. In the Bobrow case, the Tax Court determined that the tax code only allows an individual to do one 60-day rollover to another IRA account per year - not per account. Individuals can still do as many direct transfers as they wish, but only one 60-day rollover. As Tony’s case illustrates, custodians can make it very difficult for their customers to do direct transfers.

- By Beverly DeVeny and Jared Trexler

The 60-Day IRA Rollover: What Can Go Wrong

We are constantly saying that you should not do a 60-day rollover unless it is absolutely necessary. Here is a perfect example of why that's the case. The following story comes from a recent private letter ruling issued by IRS. It details some of the many ways a 60-day rollover can go horribly wrong.

60-day IRA rolloverThis is the story of “Gary and Nancy.” In 2008, Gary took a distribution from an IRA intending to roll it over to another IRA. He opened an account at a different bank and instructed them to put his funds in an IRA. Thirteen months later, in 2009, Gary discovers that the funds did not go into an IRA account. He begins to try and resolve the issue with the bank. Coincidentally, another thirteen months later while the IRA problem is still unresolved, Gary died. We are now into 2010. Matters were complicated by a change in banks. The bank where Gary had his account was acquired by another bank and his account was converted to an account at the new bank.

Another thirteen months later, in early 2012, the bank acknowledged - in writing - that the mistake was theirs. The funds were transferred to an IRA in Nancy’s name, and she then moved them to a new bank and placed them in an IRA in Gary’s name. Neither Gary nor Nancy ever used any of the IRA funds.

Nancy now goes to IRS and requests a private letter ruling (PLR) - we are still in 2012. IRS requested more information from Nancy five times in 2013. Finally, in 2014, IRS ruled in Nancy’s favor.

This rollover started in 2008. It was finalized six years later. The IRS fee alone for this type of ruling is capped at $3,000. Generally you also have to pay a professional to prepare the PLR. Given the amount of times IRS requested more information from Nancy, the professional might have charged her another $10,000. The cost in time and money to complete this rollover -not to mention the aggravation and stress on Gary and Nancy - is something that we want you to avoid. DON’T DO 60-DAY ROLLOVERS. Even if the bank told you it would take 30 days for them to process a direct transfer, that still would be more than five years faster than it took to complete this rollover.

- By Beverly DeVeny and Jared Trexler

Legal Update: 60-Day IRA Rollovers and Inherited IRAs in Bankruptcy

Interesting things are happening in the courts with regard to retirement plans, specifically 60-day IRA rollovers and inherited IRAs in bankruptcy.

60-Day Rollovers
IRA rollovers and inherited IRAs in bankruptcyIn a recent court case, the Tax Court decided that neither the IRS nor the plaintiffs, the Bobrows, were correct on the treatment of two IRA rollovers done by Mr. Bobrow. Instead the Court ruled that only one of Mr. Bobrow’s rollovers was timely completed because - according to the Court - an individual can only do one IRA-to-IRA rollover per year. Period. End of story. No matter how many IRAs you may have, you can only do one rollover per year. The year is 365 days, not a calendar year and this reasoning would also apply to Roth-to-Roth rollovers as well.

This decision is the total opposite of the IRS interpretation of the tax code. In the proposed regulations, in IRS Publication 590, and in private letter rulings, IRS has said that you can do one rollover per year, per account. If you had two IRA accounts, you could do one rollover from each account in a 365 day period (provided you didn’t roll the money distributed from the first IRA into the second IRA). Now the Court says that this is not allowed. IRA account owners would be well advised to do no more than one 60-day rollover per year for the time being.

Inherited IRAs in Bankruptcy
This issue has come up several times over the last couple of years. Bankruptcy and Appellate Courts are divided on the issue - with the majority of courts saying that an inherited IRA is an exempt asset under the federal bankruptcy rules. Now the issue is going to the U.S. Supreme Court. The case is Clark v. Rameker, Trustee. Arguments are scheduled to be heard on March 24th and the Court should hand down its decision in June.

The decision will impact bankruptcy cases only. Creditor protection for inherited IRAs in other matters, such as court awards or non-payment of debts, is determined at the state level. The level of protection can vary widely.

- By Beverly DeVeny and Jared Trexler

IRS Dirty Dozen Tax Scams During Tax Season

IRS has released its annual list of the “Dirty Dozen” tax scams just in time for you to try and avoid them during their peak tax season. Beware of these scams and check back here for Tax Planning Week through Friday.

  1. Identity Theft - Scammers may use your information to fraudulently file a tax return and collect the refund before you file your legitimate return. IRS has a special group called the IRS Identity Protection Specialized Unit to deal with identity theft issues.
  2.  Telephone Scams - There are a variety of phone scams you need to watch out for. Scammers can spoof your caller ID to appear to be calling from IRS. They tend to use common first names and surnames. They often threaten to have driver’s licenses revoked or send you to jail. They may request that you pay with a pre-loaded debit card or a wire transfer. If you truly owe money to IRS, their first communication with you is generally by letter, not by phone, so be extra cautious anytime you get a call from “the tax man.”
  3. Phishing - This scam is carried out by email or a fake website. The scammers are generally trying to get your personal information. IRS will never ask for your personal information in any sort of electronic communication.
  4. “Free Money” from Inflated Refunds - Scam artists promise the moon - large tax refunds or refunds you did not know existed. Refunds often go into the preparer’s bank account and they take a cut of the refund before giving the taxpayer any funds. Victims of these scams are often not provided with a copy of the tax return that is filed. A good return preparer will generally ask for proof of income or proof of eligibility for deductions and credits. They will sign the return and have an IRS Preparer Tax ID Number (PTIN). They will give you a copy of the return.
  5. Return Preparer Fraud - IRS again reminds taxpayers that a preparer should sign the return and have a PTIN.
  6. Hiding Income Offshore - While there are legitimate reasons to move assets offshore, there are reporting requirements on those assets. Individuals who do not do the proper reporting could be subject to significant penalties and fines.
  7. Impersonation of Charitable Organizations - Scam artists will impersonate charities, especially after natural disasters. They may contact you through email or telephone. They may try to get your personal information. IRS recommends that you only donate to recognized charities. Watch out for charities with names that are similar to well-known charities. Don’t give out personal information and don’t give cash.
  8. False Income, Expenses, or Deductions - This one’s pretty straight-forward. Lying about your expenses or deductions is never a good idea.
  9. Frivolous Arguments - Promoters of these schemes convince individuals that they do not have to pay income taxes. The arguments have repeatedly been thrown out of Court. Individuals who take this path can be subject to IRS penalties, civil penalties, and criminal prosecution and penalties.
  10. Falsely Claiming Zero Wages or Using False Form 1099 - This is another no-brainer. You cannot lie on your tax return. Bad things happen when you do.
  11. Abusive Tax Structures - These have been getting more and more sophisticated. Promoters charge hefty fees for their advice on these schemes. They generally involve multiple entities, such as LLCs, LLPs, international business companies, foreign accounts, offshore credit or debit cards, etc. IRS says form over substance is the important factor in these transactions. If you can’t do it directly, but need multiple entities, it probably is abusive.
  12. Misuse of Trusts - The transfer of assets into a trust to achieve reductions of taxable income, inflated deductions or reduction of taxes can be a misuse of a trust.
IRS reminds taxpayers that they are responsible for the information on their tax returns and the proper payment of all taxes due - even if someone else prepares the return. Additional taxes, penalties, interest, and civil or criminal penalties must, in most cases, be paid by the individual. The tax preparer will pay penalties only if they willfully engage in fraudulent conduct.

- By Beverly DeVeny and Jared Trexler

Learn From the Retirement Planning Mistakes of Others

“Learn from the mistakes of others. You can’t live long enough to make them all yourself.”
- Eleanor Roosevelt

retirement planning disastersWe like to paraphrase this quote. Learn from the mistakes of others. It’s cheaper that way. Here's what I mean.

This week there were five private letter rulings (PLRs) issued by IRS that dealt with IRA issues. Don’t let these problems happen to you or to your clients.

The first one dealt with the distribution of plan assets from a bankrupt company. The employee provided information for a direct transfer of the plan assets to another plan. The custodian could not reach any of the contacts listed so they issued a check to the plan participant - minus the 20% mandatory tax withholding. The participant did not receive the check. He did not discover anything was wrong until he received IRS Form 1099-R for the distribution. Moral of the story - always, Always, ALWAYS follow up on your transfers. His failure to follow up caused the loss of 20% of his retirement account (i.e., the amount of income tax that was sent to IRS). He will get any overpayment of taxes back when he files his tax return, but he cannot put the funds back in his plan (he did not ask IRS to allow him to do this).

Another PLR dealt with a very common problem. The wrong box got checked. The IRA funds went into a non-qualified account. This was a direct transfer. The account owner did not get a 1099-R for the distribution. But, he got a love letter from IRS asking for tax on the amount of the distribution. Moral of the story - again - always, Always, ALWAYS follow up on your transfers. Also make sure you follow up on rollovers. This mistake happens all too frequently with rollovers as well.

The next PLR dealt with another direct transfer for a new investment. The account owner thought the new custodian could hold IRA funds. Custodian 1 did not follow their own internal procedures and Custodian 2 was not an IRA custodian. No 1099-R was issued since this was a “direct transfer.” The account owner discovered the problem when he inquired about his required distribution for the year.

Another PLR was also for a new investment. The account owner was assured that the new investment could be done with IRA funds. This one was done as a 60-day rollover so the 1099-R did not alarm the account owner. Her clue came when she got a K-1 from the new investment that did not indicate that her shares were being held in the name of her IRA. Moral for these two mistakes - ask for a beneficiary form. If you are opening a new IRA investment, you should have an IRA agreement AND a beneficiary form. If they can’t give you a beneficiary form, then you do not have an IRA account. It’s as simple as that.

This last one is a common required minimum distribution (RMD) error. The individual had three retirement accounts, an employer plan, a SEP IRA, and a traditional IRA. His tax advisor told him to calculate the RMDs separately and that he could then take the balance from any one of his accounts. He elected to take the distribution from his SEP IRA. The problem - you cannot take an RMD for one type of account from a different type of account. Your IRA distribution cannot come from an employer plan and vice versa (SEP and SIMPLE accounts are considered IRA accounts for RMD purposes). Therefore, he had not taken an RMD from his employer plan for the year. Unfortunately, there is nothing good we can learn from this. Even a trusted advisor may not know all the RMD rules.

These mistakes cost the account owners anywhere from $3,000 to $10,000 in IRS fees alone for filing a PLR request. You also have to pay a professional to prepare the PLR request. Hopefully you can learn from these mistakes of others and avoid them. It’s cheaper that way.

- By Beverly DeVeny and Jared Trexler

Retirement Account Asset Valuation Seeing Greater Scrutiny

Asset valuation is coming under greater scrutiny. It started with valuations used for calculating estate tax. IRS questioned valuation discounts used in many estates and was successful in many of these challenges.

retirement plan asset valuationThen came the housing crash, the market crash and the mortgage security problems in 2006 and beyond. As a result, the SEC (Securities and Exchange Commission) is now looking harder at how illiquid investments in alternative funds are being valued. According to a recent Wall Street Journal article, some fund managers artificially inflate the value of these assets when they are selling shares of the fund. Once the sales period is over, the value of the assets is then written down.

The principle generally used to value assets for tax purposes is what would the price be between a willing seller and a willing buyer. For publically traded stocks, bonds and mutual funds this is a readily determined number. For illiquid assets, the valuation can be open to interpretation and manipulation.

The scrutiny is now moving on to retirement accounts. IRS has created new reporting for IRA distributions and account balance reporting. The use of these codes is optional for the reporting of transactions done in 2014 and will be mandatory for transactions in 2015.

Form 1099-R
There is a new distribution code for use on this form. Code K has been created to report the “Distribution of IRA assets not having a readily available fair market value (FMV).” This will impact IRA account owners and beneficiaries who take a distribution in kind or who do a Roth IRA conversion of an illiquid (hard-to-value) asset.

IRS defines these assets as “stocks, short or long-term obligations, ownership interests in limited liability companies (LLCs), partnerships, trusts, or similar entities, not readily tradable on an established US or foreign securities market, real estate, or option contracts or similar products not offered for trade on an established US or foreign option exchange.”

Form 5498
There are two new boxes on this form.

Box 15a is for reporting the FMV of any hard-to-value assets in the IRA. This is in addition to reporting the total FMV of the entire account.

Box 15b will be used for codes to identify the type of illiquid asset held in the account.

The instructions for these forms state that the IRA custodian is responsible for reporting an accurate FMV for the IRA assets - (remember: you should have received the FMV of your IRA assets by the end of January). This has been problematic in the past. Many custodians never change the value of the asset from the initial value, even when notified that the asset is now worthless. In order to get an accurate valuation, IRA custodians may need to start using services that specialize in this area. The cost of that valuation will likely be passed on to the IRA account. It may be necessary to have the asset valued annually. This could be a significant cost to the IRA going forward.

- By Beverly DeVeny and Jared Trexler

myRA: Analyzing the President's Retirement Plan Proposal

President Obama myRA analysisSo, did anything happen in President Barack Obama's State of the Union last night that we should be aware of? The President's new retirement plan proposal, called myRA, (rhymes with "IRA" when pronounced correctly - trust us, it's tough) drummed up a lot of discussion over water coolers and across the worldwide web last night and into this morning, including extremely active discussions on Twitter.

So what does the proposal mean for advisors, investors and the present and future of retirement planning? Our entire team of IRA Experts shares their initial thoughts on the proposal, including Jeffrey Levine's in an IRAtv video blog below (and at this link).

Ed Slott, America's IRA Expert: Bottom line - it's a good thing to start the ball rolling for those who take it seriously, but it won't be enough. People will still have to do more for themselves. 
We don't have all the details yet - but assuming it can be done, it sounds like a good step to help people get retirement accounts started. I find that once an account is opened, it is more likely to be contributed to, and more likely to grow. Because of the protection of principal, (US Bonds) the growth will be modest at best, but it's better than nothing and it's better than losing money for those who need it most. It appears this would be a Roth-like account so that the funds grow tax free and can be withdrawn without tax or penalty if needed (but that could also be a deterrent - if it is used for purposes other than a retirement account). It can also be transferred to a Roth IRA.
As long as there is not too much of an administrative burden on small employers, this would be a great first step to help get a retirement account started for people who might not make the effort on their own. The account could also be started with small amounts of money each week or month. But in the end, it only works if people are diligent about saving and don't raid the account for everyday purchases. The employee needs to know that this is a valuable tax-free retirement account, not a source of extra cash for a big TV. The idea is good though, and I think it will help the people who are serious about saving for their retirement. But then again, anyone really serious always had the option to open a Roth IRA on their own. Maybe this will help them kick-start the process. We'll have to see. Still, there won't be enough accumulated for a serious retirement account, so other retirement savings would still be necessary to supplement this. That's my two cents.
Joe Cicchinelli, IRA Technical Consultant: I think the President’s proposed “myRA” (my Retirement Account) and Social Security are related issues. While we’re not experts on Social Security, most experts believe that if there is no legislative change enacted, Social Security will become insolvent sometime in the future. In all likelihood, either taxes will have to increase and/or benefits will have to be cut for Social Security to remain solvent. I think the President’s proposed retirement account might indirectly affect the long-range Social Security solvency problem by trying to deal with the relatively low savings rate in this country. Maybe his underlying theory is that if more people will save for their own retirement, then maybe they won’t rely on Social Security as much in their retirement years.

Certainly, because the funds in a myRA would be invested in government bonds, which historically yield moderate investment returns, the money wouldn’t grow that much over time and may not keep up with inflation. However, having said that, I’m generally for almost anything that would increase savings for retirement. We’ll see what happens to the proposed myRA in the coming months.
Beverly DeVeny, IRA Technical Consultant:  We have seen the President’s desire to encourage Americans to save more for retirement in speeches from prior years (i.e. the autoIRA). In the past, his proposals always required some action on the part of Congress.
This time the President intends to create the myRA through a presidential executive order and bypass Congress altogether. What is a presidential executive order (EO), and can he do this?
EOs are issued under the President’s statutory or constitutional authority. They are issued to federal agencies, department heads or other federal employees and are treated the same as a law. They take effect 30 days after being published in the Federal Register. EOs cannot be used to authorize illegal activities. They bypass both Congress and the federal courts.

Can they be overturned? Presidents frequently amend or revoke an EO. Congress could pass a law to amend an EO, but the President could also veto that law. Thus, it is difficult for Congress to revoke or amend an EO. The Supreme Court has the authority to declare an EO to be unconstitutional and can revoke it.

Bottom line, it looks as though it would be possible for the President to get his myRA concept off the ground. We will have to wait and see how this all turns out.
Jeffrey Levine, IRA Technical Consultant:

The basics covered in IRAtv video on myRA:
  • Aimed at those without company plans like 401(k)s
  • Ineligible to contribute after $191,000 of income (married filing joint); $129,000 (single)
  • Voluntary with low minimum initial deposit ($25) and low additions ($5)
  • After $15,000 accumulated or same account 30 for years, funds must be rolled over
  • White House indicates a Roth-like structure of no deduction for contribution, but tax-free later on
  • Employer requirements unclear to this point
Why is it structured this way?
Most likely because it appears the President can do this, along with the Treasury, without Congressional action (as confirmed Wednesday afternoon by Treasury Secretary Jack Lew). President Obama had 6 retirement proposals in last year’s budget. None of them have materialized so far because most or all of them required Congressional action to implement. This appears not to require such action.

The myRA is not going to be enough on its own, but it can be a nice supplement to building a tax-free retirement account. It will also be a great way to encourage young or small savers because of the low minimums and the fact that the accounts are guaranteed. Starting early on is important because of the power of compounding and because of the mindset it puts you in.

The myRA might be able to be used as an emergency fund, similar to Roth IRA contributions. There would be no penalty or tax for early removal. However, people should only use these funds before retirement if absolutely necessary. If they go buy the latest video game system, a new car or some new clothes with the money, it’s not going to help. No special type of account can change that.

There’s always been two questions to answer: what type of account to save in and what to put in it? This account seems to blur that line.

The White House also released a fact sheet from The State of the Union address and had this to say about the proposed retirement plan.
Creating “myRA” - A New Starter Savings Account to Help Millions Save for Retirement. The President will take executive action to create a simple, safe and affordable “starter” retirement savings account available through employers to help millions of Americans save for retirement. This savings account would be offered through a familiar Roth IRA account and, like savings bonds, would be backed by the U.S. government.
Articles of Interest:
Here are two articles of interest that give a good explanation of the initial proposal (you need to be a Wall Street Journal subscriber to read the second article):

Will Obama's 'myRA' plan take off? from MarketWatch 
Obama announces new retirement accounts

Now, we mentioned the electric Twitter discussions that took place right after the President's announced proposal last night. Below, we share a selection that includes some of the best analysis from financial advisors, thought leaders and financial media members.

Make sure to keep a close eye on www.theslottreport.com, as we will have more information on this proposal as it becomes available.

Differences between 401(k), Roth 401(k) and Roth IRA

We are starting to get asked whether or not there are required distributions from Roth 401(k), Roth 457(b), and Roth 403(b) accounts. The answer is - Yes. Following is our chart that compares some of the features of Roth IRAs, Roth 401(k)s, and 401(k)s. For ease, we refer to all Roth employer plans as Roth 401(k)s, but that includes Roth 403(b) and Roth 457(b) accounts as well.

Roth 401(k) Comparison Chart

Roth IRARoth 401(k)401(k)
Contribution/Deferral Limits*$5,500 for 2014 plus $1,000 catch-up if you are 50 or older$17,500** for 2014 plus $5,500 catch-up if you are 50 or older$17,500** for 2014 plus $5,500 catch-up if you 50 or older
Matching ContributionsNoneIf the plan allows***If the plan allows
Income LimitsYesNoneNone
Taxability of ContributionsContributions are after-taxDeferrals are after-taxDeferrals are pre-tax
RolloversOnly to other Roth IRAsOnly to Roth IRAs or Roth employer plansTo most other retirement plans - To Roth IRAs; To Roth 401(ks) as of late 2010
Required DistributionsNone to Roth IRA ownerAt age 70 1/2 (If you are still working and are not a 5% owner, distributions are deferred until you are no longer working)At age 70 1/2 (if you are still working and are not a 5% owner, distributions are deferred until you are no longer working)
Non-Qualified DistributionsUse Roth ordering rulesUse pro-rata ruleNot applicable
Qualified DistributionsMade 5 years after date first Roth IRA was established AND after age 59 1/2, OR Death, OR Disability, OR first-time homebuyer Made 5 years after date each Roth 401(k) was established AND after age 59 1/2, OR Death, OR DisabilityNot applicable

*An individual who has traditional IRAs and Roth IRAs can contribute a maximum total of $5,500 to all their IRAs (in 2014), not to each IRA. An employee with a 401(k) and a Roth 401(k) can defer a maximum total of $17,500 (in 2014) to both types of accounts, not to each account. If age 50 or older, the catch-up amount is added to the contribution or deferral amount.

** Contribution limits for governmental Roth 457(b) and 457(b) plans are different from other employer plans

***Matching contributions cannot be allocated to the Roth 401(k) account. They must go into the 401(k) account.

The reason you have differences between Roth IRAs and Roth 401(k)s, including required distributions from the Roth 401(k), is that the employer plan rules apply to Roth 401(k) accounts. However, you can get out of the required distributions from the Roth 401(k) by rolling those assets to a Roth IRA before the year you turn 70 ½.

- By Beverly DeVeny and Jared Trexler

Reinvesting Your Required Minimum Distribution

You have inherited an IRA or you have turned age 70 ½ and now have to take required distributions (RMDs). But you don't need (a relative term of course) the money and you would rather not pay the tax on money you don't need. So what can you do?

reinvest RMDMany people ask if they can “reinvest” their RMD. Can they put it back into an IRA or, even better, into a Roth IRA?

The answer is “No.” 

There was a tax deduction given for the funds that went into an IRA in the first place and the government wants its tax back. That is why we have required distributions in the first place.

In addition, there are requirements to be met before you can make a contribution to an IRA or a Roth IRA. First of all, the maximum you can contribute for 2014 is $5,500 (for those age 50 or older this year, you can contribute an additional $1,000). You also have to have “compensation,” which is generally earned income (the safe harbor is W-2 income). That eliminates most people who are over age 70 ½. Individuals cannot make traditional IRA contributions beginning in the year they turn 70 ½, so that eliminates those over 70 ½ who do have earned income. The age limitation does not apply to Roth IRAs, but there are income limits for making Roth IRA contributions.

For those who have to take RMDs from inherited IRAs, once the funds are in your bank account you can use them to make contributions to your own IRA or Roth IRA. Again, you have to meet the requirements for making contributions to either type of account. You can also use those funds to pay the taxes on conversions of IRA funds to Roth IRA accounts. You can only convert your own IRAs, those where you make contributions or rolled over money from one of your own company retirement plans. You cannot convert an inherited IRA to an inherited Roth IRA.

You can find more information on the IRA and Roth IRA contribution rules in IRS Publication 590, which is available on their website at www.IRS.gov. Click on the button for Forms and Publications.

- By Beverly DeVeny and Jared Trexler

There is No Beneficiary on the Retirement Account: Now What?

An IRA account owner or beneficiary died and there was no named beneficiary for the account. The obvious question comes, "Who inherits the account and how do you calculate the required distribution?"

no beneficiary retirement accountThis is a popular question we received by many people in December 2013. Some of the cases in question included situations where Dad died, Mom was the named beneficiary, BUT she died without naming her own beneficiary. Others included Mom as the beneficiary of Dad's account, BUT she predeceased Dad.

If you are in one of these situations, you must first look at the IRA agreement - the "rules" for that specific IRA. Each IRA custodian has its own agreement. In this agreement, the default language will indicate who inherits the IRA when there is no beneficiary named on the form or there is no form at all.

Sometimes it will be clean and simple with the spouse as the default beneficiary. You might even get luckier and have a second default as the children. But, sadly, that luck didn't play out for any of the individuals I talked to in December. Those IRA agreements all defaulted to the estate of the account owner or the beneficiary.

And when the estate is the inheritor, you do NOT have what the IRS calls a "designated" beneficiary. A designated beneficiary is a living, breathing beneficiary who can stretch distributions over their own life expectancy. The estate is obviously not living. It does not have a life expectancy. It's ability to stretch distributions is limited.

So, if you inherit the IRA through the estate, you cannot use your own life expectancy to calculate required distributions. If the IRA owner died before April 1 (his/her required beginning date) of the year after he or she turned 70 ½, you must empty the IRA in five years. If he or she died after the April 1 required beginning date, then you can stretch distributions over the ACCOUNT OWNER'S remaining life expectancy.

However, the ability to stretch distributions when the estate is the beneficiary may not be an option for you. Many IRA custodians will only make payments to the estate NOT to the beneficiaries of the estate. While IRS allows an estate to assign or transfer the IRA out of the estate to a properly titled inherited IRA for estate beneficiaries, many IRA custodians will not do this, instead paying the entire IRA balance to the estate. This is a taxable distribution and cannot be undone.

This entire complex situation is avoidable. We say it over and over again. Check your beneficiary forms! If you can't find them, simply fill out a new form and send it in. A form found on your desk after your death will not count. And don't just name a primary beneficiary. Name contingent beneficiaries as well. Many times, this simple step will save the stretch IRA. Then take it one step further. Make sure your parents or your children or other family members do the same thing for their IRAs. Don't let your retirement funds go down the drain.

- By Beverly DeVeny and Jared Trexler

When Is Your IRA Distribution Taxable?

It is year-end. Retirement account owners and beneficiaries are grappling with required distributions for 2013 and, in some cases, with missed distributions from prior years. When there is a missed distribution, we constantly get the question, “Do I have to do an amended tax return?” The answer is, “No.”

Distributions from retirement accounts are taxable to the recipient in the year in which the funds come out of the account. Here are some examples:

    IRA required minimum distribution taxable
  • If you missed a distribution in 2012 and took it in 2013, then it is included in your 2013 income.
  • If you missed distributions for 2010, 2011, and 2012 and took them all in 2013, they are all included in your 2013 income.
  • If the distribution is made by the account on December 31, 2012 and you received it on January 3, 2013, it is included in your 2012 income.
  • If you miss the deadline for taking your 2013 required distribution and do not take it until January 2014, it will be included in your 2014 income.

If an account owner with a required minimum distribution died in 2013 before taking all of his or her distribution, any remaining unpaid distribution must be paid to the beneficiary of the account using the beneficiary’s Social Security number.

When a required distribution is missed, there is a penalty of 50% of the amount not taken. This is reported on IRS Form 5329, which can be filed as a stand-alone tax return. IRS can waive the penalty for good cause. The form can be found on the IRS website, www.irs.gov. Click on the Forms and Publications button.

-By Beverly DeVeny and Jared Trexler

Aggregating Required Distributions

Not only are the holidays upon us, but it is time to make sure that required distributions (RMDs) from retirement plans are taken before year end (or before the cutoff date imposed by the IRA custodian). One question that comes up frequently is what RMDs can be added together.

Distributions from IRAs, including SEP and SIMPLE IRAs, should be calculated on each IRA, but then they can be added together and taken from any one or combination of IRA accounts. There are some potential traps here that you want to avoid.
    Required Minimum Distributions
  • You cannot combine the RMDs for spouses. Each spouse must take their RMD from their own IRA account(s).
  • You cannot combine the RMDs from owned IRA accounts with RMDs from inherited accounts. You can combine the RMDs from inherited accounts when they are inherited from the same IRA account owner.
  • When an IRA account is annuitized over life expectancy or a period of 10 years or more, the annual distribution from that account is the RMD for that account. It cannot be used to satisfy the RMD from any other IRA account.

Distributions from employer plans must be calculated on each plan and withdrawn from that plan. Employer plans cannot be aggregated - with one exception. 403(b) accounts can be aggregated following the same rules for IRAs noted above. The combined total can be taken from any one or combination of 403(b) accounts.

Under no circumstances can an RMD from one type of plan be satisfied with a distribution from a different type of plan. A 403(b) RMD cannot come out of an IRA, an IRA RMD cannot come out of a 401(k), etc.

There are no RMDs for Roth IRA account owners so there are no aggregation rules. Inherited Roth IRA RMDs can be aggregated following the IRA rules above.

If you have any questions on calculating your RMDs or on taking your distributions, it is best to consult with an IRA specialist. There is a penalty of 50% of the amount not taken if you do not take your full RMD. If you take the RMD out of the wrong type of account, you are treated as though you did not take that RMD at all. You can find a listing of Ed Slott trained advisors on our web site, www.IRAhelp.com. 

- By Beverly DeVeny and Jared Trexler