An IRA must report its fair market value to the IRS annually. Fair market value is reported to the IRS by your IRA custodian via IRS Form 5498. For standard IRAs holding stocks or mutual funds, those account values are automatically determined as they simply take the stock or fund price as of the close of the market on December 31st each year. They then use these amounts to set the year-end account fair market value. For self-directed accounts, such fair market values are not readily available, and it becomes the IRA account owner’s responsibility to obtain their self-directed investment values so that their custodian can properly report the account’s fair market value. The value of an account is important for a few reasons. First, the IRS requires it to be updated annually. Second, it is used to set required minimum distributions (RMDs) for those account holders over the age of 70 ½ with Traditional IRAs. Last, the account value is used when converting an entire account, or a particular investment or portion of the account, from a Traditional IRA to a Roth IRA.
What is “Fair Market Value?”
Fair market value of an investment has been broadly defined by the Court as:
“The price at which property would change hands between a hypothetical willing buyer and a hypothetical willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of relevant facts.” U.S. v. Cartwright, 411 US 546 (1973).
Now here’s the hard part: Even though the IRS requires IRAs to update their fair market value on an annual basis, the Government Accountability Office noted in their recent report that:
“Current IRS guidance includes NO [emphasis added] guidance or advice to custodians or IRA owners regarding how to determine the FMV [fair market value]”. United States Government Accountability Office, GAO-17-02, Retirement Security Improved Guidance Could Help Account Owners Understand the Risks of Investing in Unconventional Assets. (Dec. 2016).
The absence of guidance, however, has not relieved IRA owners or their custodians from obtaining and reporting this information. While there is no specific fair market valuation guidance for IRAs, there are commonly accepted methods of reporting value used by professionals and companies within the self-directed IRA industry. Most of these methods have been adopted from law and regulations governing employer retirement plans or estates.
Methods to be used by Asset Type
The table below outlines preferred valuation methods that are commonly used in the industry for the most common self-directed IRA assets. As you will note, when the valuation is needed for a taxable event, such as a distribution or Roth conversion, greater detail and supporting information will be required as the valuation will result in tax being due.*
||Non-Taxable (Annual FMV)
||Taxable (RMD, distribution or conversion)
||Comparative Market Analysis (CMA) from a real estate professional is preferred. Some IRA custodians accept property tax assessor values or Zillow reports in non-taxable situations.
||Real estate appraisal is preferred. Some IRA custodians accept a broker’s price opinion.
||Value of a note can be reported by calculating the principal due plus any accrued and unpaid interest. This is the valuation method used for calculating the value of a note for estate tax purposes.
||Same as non-taxable, principal amount due plus accrued and un-paid interest. For notes in default, a third-party opinion as to value is typically required in order for the note to be written-down below face value.
||For bullion, use the spot value of the metal in question times the ounces owned. Spot value is widely reported on a daily basis on financial sites.
For acceptable coins, use market data for the coin in question via the Grey Sheets available at www.bullionvalues.com.
|Same as non-taxable.
|LLC, LP, or Private Company Interest
||Obtain a third party-opinion of value of the LLC interest. The opinion should rely on IRS Revenue Ruling 59-60. For asset holding companies, the valuation should focus on the value of the assets. For operating companies, the valuation should focus on earnings.
||Similar requirement, but the detail of the opinion should be more significant. For example, for an asset holding company where the IRA’s interest is determined by the assets of the LLC. A CMA would be acceptable for calculating that assets value in the company in an annual valuation. However, an appraisal of the real estate to calculate in that asset would be required in a taxable situation.
Since the valuation reporting policies of custodians vary, IRA owners should make sure that they understand their IRA custodian’s policies for valuations of the assets in question.
Our firm routinely assists clients with obtaining third-party opinions of value, and can assist IRA owners who need to produce a report or third party opinion as to an LLC or other investment interest held by an IRA. Call us at (888) 801-0010.
*Please note that there are clearly differences of opinions on these matters, and since there is no specific legal guidance for IRA valuations, please keep in mind that the table above is based on my own industry experience and opinions. Seek a licensed professional in all instances for your specific situation.
Do you need access to your retirement account funds to start a business, pay for education expenses or training, make a personal investment, or pay off high interest debt? Rather than taking a taxable distribution from your 401(k), you can access a portion of the funds in your 401(k) via a loan from the 401(k) to yourself without paying any taxes or penalties to access the funds. The loan must be paid back to the 401(k) but can be used for any purpose by the account owner.
Many people are familiar with this loan option, but are confused at how the rules work. The loan rules from the IRS are the same whether it is your solo 401(k) or a 401(k) with your current employer. Here is a summary of the items to know. For more details, check out the IRS Manual on the subject here.
FAQs on Loans from Your 401(k)
How much can I loan myself from my 401(k)?
50% of the vested account balance (FMV of the account) of the 401(k) not to exceed $50,000. So if you have $200,000 in your 401(k) you can loan yourself $50,000. If you have $80,000, you can loan yourself $40,000. If your spouse has an account, they can take a loan from their 401(k) too under the same rules (50% of the account balance not to exceed $50K).
What can I use the funds for?
By law, the loan can be used for anything you want. The funds can be used to start a business, personal investment, education expenses, pay bills, buy a home, or any personal purpose you want. Some employer plans restrict the purpose of the loan to certain pre-approved purposes but that is less common. Most don’t place restrictions. If you used the funds for business purposes, then you can expense the interest you and your business are paying back to your 401(k).
How do I pay back the loan to my own 401(k)?
The loan must be paid back in substantially level payments, at least quarterly, within 5 years. A lump sum payment at the end of the loan is not acceptable. For loans where the funds were used to purchase a home, the loan term can be up to 30 years.
What interest rate do I pay my 401(k)?
The interest rate to be charged is a commercially reasonable rate. This has been interpreted by the industry and the IRS/DOL to be prime plus 2% (currently that would be 7% as prime is 5%). If the loan was for the purchase of a home for the account owner then the rate is the federal home loan mortgage corporate rate for conventional fixed mortgages. Keep in mind that even though you are paying interest, you are paying that interest to your own 401(k) as opposed to paying a bank or credit card company.
How many loans can I take?
By law, you can take as many loans as you want provided that they do not collectively exceed 50% of the account balance or $50,000. However, if you are taking a loan from a current company plan, you may be restricted to one loan per 12-month period.
What happens if I don’t pay the loan back?
Any amount not repaid under the note will be considered a distribution and any applicable taxes and penalties will be due by the account owner.
Can I take a loan from my IRA?
No. The loan option is not available to IRA owners. However, if you are self-employed or are starting a new business, you can set up a solo or owner-only 401(k) (provided you have no other employees than the business owners and spouses), then roll your IRA or prior employer 401(k) funds to your new 401(k), and can take a loan from your new solo 401(k) account.
Can I take a loan from a previous employer 401(k) and use it to start a new business?
Many large employer 401(k) plans restrict loans to current employees. As a result, you probably won’t be able to take a loan from the prior 401(k). You may, however, be able to establish your own solo or owner-only 401(k) in your new business. You would then roll over your old 401(k) plan to your new solo/owner only 401(k) plan, and would take a loan from that new 401(k).
Can I take a loan from my Roth 401(k) account?
Some plans restrict this, but it is possible to take a loan from the Roth designated portion of your 401(k).
What if I have a 401(k) loan and change employers?
Many employer plans require you to pay off any outstanding loans within 60 days of your last date of employment. If your new employer offers a 401(k) with a loan option, or if you establish a solo/owner-only 401(k), you can roll over your prior employer loan/note to your new 401(k). Also, many plans have waivers to avoid total payoff (not payments) and give you time for repayment if you leave employment.
The 401(k) loan option is a relatively easy and efficient way to use your retirement account funds to start a small business, to pay for non-traditional education expenses, or to consolidate debt to a better rate of interest. If you have more questions about accessing your 401(k) funds, please contact us our attorneys at KKOS Lawyers by phone at (602) 761-9798 or visit kkoslawyers.com.