Sounds like a great candidate for a Checkbook Control Solo 401K! Between him and his spouse they could sock away tens of thousands of dollars in their Solo K and invest tax free in real estate (remember no UDFI on leveraged real-estate in a 401k!). BUT, NOT SO FAST. Here’s the catch, my buddy’s W-2 comes from his Dad’s company, which has several hundred people on payroll and the IRS has got a tool known as the Controlled Group Rules which result in ownership of businesses being attributed to relatives for tax purposes. This could potentially make a child’s Qualified Retirement Plan – QRP – subject to anti-discrimination testing based on their parent’s employees, making them ineligible for a Solo 401k – intended for an owner-only business, with no employees.
To resolve this matter, Congress provided a handy reference known as the Internal Revenue Code (IRC). The Internal Revenue Code defines family relationships in several places…so we’ve got to interpret the conflicting definitions and determine which of those apply. (Hint: It depends…)
[If “con” is the opposite of “pro,” what is the opposite of “progress?”….answer at the end of the post:)] Continue reading “Solo 401K Eligibility: Are Parents and Children Related? Controlled Groups”
Suppose you own an income producing property that you’d like your Solo 401k or Checkbook IRA to purchase, but knowing that as a “disqualified person” you can’t transact with your IRA you initially conclude that it can’t be done. Suddenly, you experience an epiphany – you could transfer title to the property from your name (or your LLC’s name) to your brother’s name, and he would subsequently sell the property to the self-directed retirement account. Eureka!
That stroke of brilliance has been had by many others and the courts have developed some judicial doctrines to analyze and characterize such transactions. One such doctrine is known as the Step Transaction Rule. Continue reading “Beyond Prohibited Transactions: The Step Transaction Doctrine”
The Plan Asset Rule
There’s a lesser known extension of IRC 4975 in the Code of Federal Regulations that discusses something known as the Plan Asset Rule. In a nutshell, the Plan Asset Rule says that when retirement plans own a “significant” share of an entity, all of that entity’s assets are treated as assets of the retirement plans for purposes of the prohibited transaction rules.
The implications of this can be staggering; if retirement plans collectively own a significant portion of an entity, all the disqualified persons of all the retirement plan investors are disqualified persons to that entity. Continue reading “Beyond Prohibited Transactions: The Plan Asset Rule”
Benefiting from tax-advantaged retirement funds before retirement age would be a beautiful thing, especially for those of that leverage the power of Solo 401(k)s and Checkbook IRAs. But, as that would defeat the intent of those accounts, the Prohibited Transaction Rules of IRC 4975 were created. Although written broadly, the innovative investor can contrive many ways to circumvent those rules.
However, beyond the letter of the law, the IRS has some additional tools at its disposal with which to counter creative strategies. Those include the Step Transaction Doctrine, the Exclusive Benefit Rule, and the Plan Asset Rule. For cases in which those rules may not apply, the IRS has the Department of Labor Interpretive Bulletin ERISA IB 75-2. Continue reading “Beyond Prohibited Transactions: The DOL Interpretive Bulletin”