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Real Estate Investments with IRAs

Statutes 

IRC § 4975 (c)(1)(B).  A disqualified person (e.g. IRA owner) may not extend credit or guarantee a loan for their IRA’s investments. 

IRC § 4975(c)(1)(C). While it is permissible to administer the investment, it is generally viewed impermissible to physically work on investment assets (such as rental real estate) since such actions can constitute a per se prohibited or self dealing prohibited transaction. 

IRC § 4975(e)(2)G). For example, any lease to a company that is owned 50% or more by the IRA owner or other disqualified persons would constitute a prohibited transaction.

DOL PTE 80-26, 71 CFR 17917 Amendment to Prohibited Transaction Exemption 80-26 (April 7, 2006). In the event that an IRA becomes overextended and cannot pay its obligations, the IRA owner may rely on Department of Labor Prohibited Transaction Exemption 80-26, which allows the IRA owner to loan money to his or her IRA so that his or her IRA may pay obligations that it owe. This loan from the IRA owner to the IRA is specifically exempt from the prohibited transaction rules and is permissible so long as the following conditions are present: The proceeds of the loan to the IRA must be for the payment of ordinary operating expenses of the plan, including the payment of benefits in accordance with the terms of the plan (e.g., required minimum distributions) or a purpose incidental to the ordinary operation of the plan. Many practitioners take the position that a loan or other obligation incurred from an investment asset meets the criteria of an operating expense to the plan.  The loan must be interest free and un-secured. The loan should not cost the IRA money or jeopardize its assets. Any loan over 60 days must be in writing. Most custodians who will allow an IRA owner to utilize PTE 80-26 will require a written agreement, regardless of the duration of the loan.

Opinions 

Citation: DOL Advisory Opinion 2006-01A, 29 CFR 2509.75-2

Case Facts: Any investment structure whereby the IRA invests into a company (even when the IRA owns less than 50%) and the company is then required (or its sole purpose is) to lease to a disqualified person would constitute a prohibited transaction as the IRA’s investment cannot be made with the intent to benefit a disqualified person.

Citation: Department of Labor Prohibited Transaction Exemption 80-26

Case FactsDOL PTE 80-26, 71 CFR 17917 Amendment to Prohibited Transaction Exemption 80-26 (April 7, 2006). In the event that an IRA becomes overextended and cannot pay its obligations, the IRA owner may rely on Department of Labor Prohibited Transaction Exemption 80-26, which allows the IRA owner to loan money to his or her IRA so that his or her IRA may pay obligations that it owe. This loan from the IRA owner to the IRA is specifically exempt from the prohibited transaction rules and is permissible so long as the following conditions are present: The proceeds of the loan to the IRA must be for the payment of ordinary operating expenses of the plan, including the payment of benefits in accordance with the terms of the plan (e.g., required minimum distributions) or a purpose incidental to the ordinary operation of the plan. Many practitioners take the position that a loan or other obligation incurred from an investment asset meets the criteria of an operating expense to the plan.  The loan must be interest free and un-secured. The loan should not cost the IRA money or jeopardize its assets. Any loan over 60 days must be in writing. Most custodians who will allow an IRA owner to utilize PTE 80-26 will require a written agreement, regardless of the duration of the loan. 

Misc. 

CHECKLIST FOR IRA OWNERSHIP OF REAL ESTATE

  • Is the contract and deed/title in the IRA’s name (e.g., ABC Trust Company FBO Sally Jones IRA)?
  • Did the IRA custodian sign the contract and legal agreements for the IRA, or, where applicable, did the manager of the IRA/LLC sign them?
  • Did the IRA owner refrain from using personal expenses in purchasing and maintaining the property?
  • If the IRA obtained a loan to purchase the property, was the loan nonrecourse, and is the IRA owner aware of possible UDFI taxes on any net profits from the debt?
  • Is the IRA custodian, the property manager, or a properly established IRA/LLC, receiving the rental income and paying the expenses for the property?
  • Does the IRA have sufficient capital available to cover an unexpected property expense?
  •  Is the IRA owner holding the property for investment, and are the IRA owner and other disqualified persons avoiding personal use or benefit from the property?
  • Was the broker or agent in the transaction (when applicable) a non-disqualified person? Did the IRA owner refrain from personally benefitting from the IRA’s purchase?

Blog Articles

How to Properly Purchase Real Estate with a Self-Directed IRA. 

Managing a Rental Property Owned by Your Self-Directed IRA. 

 

 

 

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President / Polycomp Trust Company

"Mat is an excellent attorney, well versed in the Self-Directed IRA market...His ability to distill the complexities of the Self-Directed IRA
so that the average person can understand them, and ensure that they don't get "tripped up" is second to none.

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Vice President / IRA Services Trust Company

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"The Self Directed IRA Handbook by attorney Mat Sorensen is the most comprehensive book ever written about one of the
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Founder and Retired CEO, PENSCO Trust Company

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Mat’s book is the most practical and comprehensive self directed IRA guide in our industry. Reading this handbook should be the first step for any alternative asset investor, investment sponsor, or trusted advisor that seeks to become informed about how to maximize the value of IRAs.

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CEO, Vantage Self Directed Retirement Plans

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