by Mat Sorensen | Feb 14, 2023 | IRA/LLCs
My article on IRA/LLCs for self-directed IRA investors was published by the California Lawyers Association, Section on Business Law, eBulletin. In the article I outline the benefits of an IRA/LLC, how to properly set-up an IRA/LLC, how the documents need to be restrictive over and above a standard LLC set-up, and discuss the cases where self-directed IRA owners have improperly operated the IRA/LLC.
An IRA/LLC is an investment structure whereby an IRA invests capital into a newly created limited liability company (“LLC”). The IRA owns the LLC units just like your IRA can own Coca-Cola corporation stock. This IRA/LLC structure has been popular amongst real estate investors and other investors who regularly invest in alternative assets with their retirement account. A common IRA/LLC structure is one where the IRA invests a designated amount of cash into the LLC in exchange for 100% of the membership units of the LLC. The LLC then in turn acquires the intended investment asset. For example, a rental property. An IRA/LLC can also be formed with numerous IRAs owning the LLC with the ownership allocated between the different IRAs based on the dollars invested.
Read the rest of the article on the California Lawyers Association website, here.
by Mat Sorensen | Dec 3, 2021 | Uncategorized
A recent Tax Court case, McNulty v. Commissioner, held that a self-directed IRA owners “…[personal] receipt of the AE [American Eagle] coins constituted taxable distributions equal to their purchase price.” In this case, Donna McNulty established a self-directed IRA and invested those IRA funds into an LLC where she was the manager. She then established a bank account for the LLC. The IRA funded this bank account with cash and then the LLC bank account was used to purchase precious metals. The precious metals were then subsequently shipped to and stored at Mrs. McNulty’s personal residence in her personal safe.
The IRS challenged Mrs. McNulty’s personal possession of the precious metals stating that personal possession violated IRC 408 and said that, “Mrs. McNulty’s receipt of the AE coins constituted taxable distributions equal to their purchase price.”
The IRS has been of the opinion, and we have long communicated to our clients, that home storage of precious metals via an IRA owned LLC violates the IRA rules under IRC 408. See the IRS Announcement and my article from 2016 on the subject, here. Some IRA custodians and non-licensed companies promoting precious metals IRAs have argued that you can have personal possession and can personally store specifically approved coins, such as American Eagle Gold Coins, by using an IRA/LLC structure (aka, checkbook IRA). This argument for specifically approved coins was based on some ambiguity in the law surrounding storage requirements for precious metals and IRAs in IRC 408(m). We’ve always believed IRA precious metals home storage was an aggressive strategy and one we advised against for the reasons the IRS and the Tax Court expressed in the McNulty case.
I have seen some providers of solo 401(k)s and other alternative strategies claim that, “checkbook IRAs are illegal.” This is great clickbait – but terrible content and advice as the court did not say that checkbook IRAs (aka, IRA/LLCs) are illegal. That was not part of their holding nor was it a part of the case from the IRS. The holding in the case was specific to a distribution of precious metals stored personally by the IRA/LLC owner. Please talk to your attorney, CPA, or licensed tax professional at to the details of the case and its impact on your IRAs investments. For our clients, our advice remains the same – don’t personally store your IRA or IRA/LLC precious metals at your home or in your personal possession.
The Court’s opinion can be found at the link below.
McNulty V Commissioner Precious Metals Storage and IRA owned LLC Checkbook IRA
