Have you taken a loan from your employer 401(k) plan and plan on leaving? Unfortunately, most company plans will require you to repay the loan within 60 days, or they will distribute the amount outstanding on the loan from your 401(k) account. Its one of the ways they try to keep their employees from leaving. “Don’t leave or we’ll distribute your 401(k) loan that you took from your money in your 401(k) account.”
How to Buy Yourself More Time & Avoid the Distribution
The good news is that following the Tax Cuts and Jobs Act (TCJA) you now have the option to re-pay the loan to an IRA to avoid the distribution and you have until your personal tax return deadline of the following year (including extensions) to contribute that re-payment amount to an IRA. By re-paying the amount outstanding on the loan to an IRA, you will avoid taxes and penalties that would otherwise arise from distribution of a participant 401(k) loan.
How It Works In Practice
Let’s say you left employment from your employer in February 2019 and that you had a 401(k) loan that was distributed by your employer’s plan following your termination of employment. You will have until October 15th of 2020 (if you extend your personal return, 6 month extension from April 15th) to make re-payment of the amount that was outstanding on the loan to an IRA. These funds are then treated as a rollover to your IRA from the 401(k) plan and your distribution and 1099-R will be reported on your federal tax return as a rollover and will not be subject to tax and penalty. While it’s not perfect it’s far great time than was previously allowed. Traditionally, you had 30 or 60 days at most to try to make re-payment.
The ability to rollover an outstanding 401(k) loan amount to an IRA is only available when you have left an employer (for any reason). It does not apply in instances where you are still employed and have simply failed to re-pay the loan or to make timely payments.
You have a number of options and decisions to make when moving funds from a retirement account (401(k), 403(b), IRA) to an IRA. And you’ve got to be careful because sometimes checking the wrong box on your transfer, rollover, and withdrawal forms can have drastic tax consequences. For example, should you move funds from one retirement account to your IRA using a Direct Rollover, a 60-Day Rollover, or a Trustee-to-Trustee transfer? Which box do you check on your form and does a 1099-R get issued and reported to the IRS? Will I have to report anything on my tax return? Let’s go over the options and the consequences as well as the tax reporting for each one.
1. Direct Rollover from 401(k) to IRA – When Moving from an Employer Plan
A Direct Rollover is generally used when moving funds from an employer plan (e.g. former employer 401(k) or 403(b)) to an IRA). Under a direct rollover, the retirement plan administrator will send the retirement plan funds directly to the new custodian of your IRA. There is no tax consequence and there is no withholding. There is simply a “direct” rollover of the funds to the new IRA account. Most employer plans like 401(k)s and 403(b)s are traditional accounts, so those funds are generally rolled to a traditional IRA. If you are moving the funds to a Roth IRA, which is possible, you will need to covert the funds with the IRA custodian as they are being rolled into a Roth IRA. And of course, there are taxes due from the Roth conversion.
There are no limits on the number of Direct Rollovers you may complete, except as may be reasonably imposed by your employer’s retirement plan. For example, some employer plans may say that it’s an all or nothing option if you want to move funds once you no longer work there (e.g. keep all your funds there or move everything to an IRA).
If you are currently employed with your employer, you are usually only allowed to move funds from the employer’s plan when you have reached retirement plan age under the plan. This is usually 55 or 59 1/2 depending on your employer’s plan.
A direct rollover from an employer plan is not subject to tax or withholding. When a direct rollover is completed, a 1099 is generally issued from the current plan, but is marked as “not taxable” as the funds are being sent to another qualifying retirement account.
2. 60-Day Rollover – Only When You Need It This Way
A 60-Day Rollover allows you to take a distribution from one IRA, so long as you re-deposit that same amount into another IRA within 60 days, and the funds no longer considered distributed. When using a 60-Day Rollover, you receive the funds personally from the current IRA plan custodian, and then re-deposit those funds into a qualifying IRA within 60 days. Failure to re-deposit in time will cause a distribution of the funds, and you will be subject to taxes on any applicable penalties (e.g. early withdrawal penalty if under 59 1/2) for failure to re-deposit in time. There are no extensions, and there is no mercy if you miss the 60-day deadline. The new IRA custodian will generally require a certification, and your prior IRA account custodian’s statement to verify that the funds were in an IRA within the past 60 days.
It is very important to note that as of 2013 you can only complete one 60-Day Rollover every twelve months. See my prior article here on the 12-month rule for 60-Day Rollovers. Consequently, you should not use the 60-Day Rollover method option on a regular basis.
When using a 60-Day Rollover, the former IRA custodian will issue a 1099-R reporting the distribution as taxable and you will need to certify that you re-deposited within 60 days on your personal tax return to avoid the distribution. The 60-Day Rollover is communicated to the IRS on your personal tax return on line 15 where you report the distribution from the 1099-R, and then on line 15b you report that it was not taxable, since it was rolled over within 60 days. On line 15b, you indicate that the taxable amount is zero and you write the word Rollover next to line 15b. See the IRS instructions for line 15 here.
3. Trustee-to-Trustee Transfer – the Best Option When Changing IRA Custodians
The Trustee-to-Trustee transfer is the preferred method of moving funds from one IRA to another (e.g. from a Roth IRA at Fidelity to a Roth IRA with a self-directed custodian). Under a Trustee-to-Trustee transfer, the funds are sent from one IRA custodian (partial or full account) to your new IRA custodian. There is no tax, withholding, or penalty for moving funds via a Trustee-to-Trustee transfer, and there is no limit on the amount of Trustee-to-Trustee transfers you may complete.
A 1099-R is not issued when a Trustee-to-Trustee transfer occurs, and there is no withholding or tax due. Consequently, the Trustee-to-Trustee transfer is the preferred method to use when moving funds from one IRA to another.
Have you rolled over your 401(K) plan or other employer based plan to a rollover IRA? Has someone told you that your rollover IRA in California isn’t protected from creditors. They’re wrong.
Retirement plans are known for being great places to build wealth and they have numerous tax and legal advantages. One of the key benefits of building wealth in a retirement account is that those funds are generally exempt from creditors. However, some states have laws that protect employer based retirement plans (aka, ERISA Plans) more extensively than IRAs. California is one of those states as their laws treat IRAs and ERISA based plans differently (the California Code refers to ERISA based plans, such 401(k)s, as private retirement plans) .
California Code of Civ. Proc., § 704.115, subds. (b),(d), treats funds held in a private retirement plan as fully exempt from collection by creditors. “Private retirement plans” include in their definition “profit-sharing” plans. The most common type of profit sharing plan is commonly known as a 401(k) plan.
IRAs, on the other hand, are only exempt from creditors up to an amount “necessary to provide for the support of the … [IRA owner, their spouse and dependents] … taking into account all resources that are likely to be available…” In other words, the exemption protection for IRAs is “limited”. California Code of Civ. Proc., § 704.115, subdivision (e).
McMullen v. Haycock
Notwithstanding the limited creditor protections for IRAs outlined above, the California Court of Appeals has ruled that rollover IRAs funded from “private retirement plans” receive full creditor protection as if they were a fully protected private retirement plan under California law. McMullen v. Haycock, 54 Cal.Rptr.3d 660 (2007). In McMullen v. Haycock, McMullen had a judgement against Haycock for over $500,000. McMullen attempted to get a writ of execution against Haycock’s IRA at Charles Schwab. In defending against the writ of execution, Haycock claimed that the entire IRA was a rollover IRA funded and traceable to a private retirement plan and thus fully protected from collection as a private retirement plan. Haycock relied on California Code of Civ. Proc., § 703.80, which allows for the tracing of funds for purposes of applying exemptions.
Haycock lost at the trial court level but appealed and the appellate court found in his favor and ruled that his rollover IRA was fully protected from the collection of creditors as the funds in the rollover IRA were traceable to a fully exempt private retirement plan (e.g. former employer’s 401(k) plan).
As a result of McMullen v. Haycock, California IRA owners whose IRAs consist entirely of funds rolled over from a private retirement plan of an employer are fully protected from the collection efforts of creditors. IRAs that consist of individual contributions and are not funded from a prior employer plan rollover will only receive limited creditor protection. It is unclear so far how an IRA would be treated that consists of both private retirement plan rollover funds and new IRA contributions. Presumably, the Courts will trace the funds and separate out the private retirement plan rollover IRA portions from the regular IRA contributions and the regular IRA contributions would then receive the limited protection. Unfortunately, there is no case law or guidance yet as to rollover IRAs with mixed rollover and regular IRA contributions.
McMullen v. Haycock was a big win for IRA owners with funds rolled over from a private retirement plan and one that should be kept in mind when planning your financial and asset protection plan.
A recent U.S. Tax Court case, Bobrow v. Commisioner, T.C. Memo 2014-21, held that a taxpayer may only conduct one 60-day rollover of retirement plan funds per 1-year period. The Court’s opinion was a drastic change from what most taxpayers and professionals understood and from what the IRS has explained in its own publications.
The relevant facts of Bobrow are as follows. Mr. Bobrow conducted two 60-day rollovers in a 1-year period with two separate IRA accounts. He received both sums of money personally and paid them back into his two respective IRAs each within 60 days. Mr. Bobrow, presumably, believed that since he had two different IRAs that he could do two separate 60-day rollovers with those accounts without having either account subject to withdrawal. While Mr. Bobrow relied on a commonly accepted practice that was supported clearly by IRS guidance, the Tax Court disagreed based on the language of IRC 408 (d)(3)(B).
A 60-day rollover is often used by retirement account owners who temporarily roll-over money to themselves personally from their existing retirement account and re-deposit the funds into a new custodian’s retirement account within 60 days. A 60-day rollover, however, is not to be confused with a trustee to trustee transfer or even a direct rollover, whereby retirement account funds are sent from the prior custodian or trustee of the retirement account funds to the new custodian or trustee. These types of transactions can be done as many times as an account owner desires and do not result in a retirement account owner’s personal receipt of retirement account funds or withdrawal under the tax rules. A 60-day rollover, on the other hand, is sent to the retirement account owner in their own name and can be deposited and used by the retirement account owner during the 60-day period so long as the funds are returned to the retirement account or to a new account within 60-days. A 60-day rollover is sometimes used by retirement account owners who, for example, withdraw funds from their IRA for short-term personal use or investment and then return the withdrawn funds to their IRA within 60-days.
Under IRC 408 (d)(3)(A), an IRA owner’s withdrawal from an IRA is not taxable when returned or deposited into a new IRA within 60 days. However, the question posed in the Bobrow case was how many 60-day rollovers can an individual do in a 1-year period. The 60-day rollover exception is limited in the Code when an individual has already received one 60-day roll-over from an IRA in the past 12 months. The Code specifically states that the 60-day rollover exception cannot be used if the individual has already completed and relied on the exception for a 60-day rollover in the prior 1-year period. IRC 408(d)(3)(B). It has been unclear, however, whether the one 60-day rollover per year applied on a per IRA basis or whether it applied to the individual for all of their accounts.
The IRS had clarified that questions and has previously explained that an individual can conduct one 60-day rollover per 1-year period per IRA and thus interpreted IRC 408(d)(3)(b) to apply on a per IRA basis. This one 60-day rollover per IRA rule is explained by way of example in the current version of IRS Publication 590, page 25, as follows.
You have two traditional IRAs, IRA-1 and IRA-2. You make a tax-free rollover of a distribution from IRA-1 into a new traditional IRA (IRA-3). You cannot, within 1 year of the distribution from IRA-1, make a tax-free rollover of any distribution from either IRA-1 or IRA-3 into another traditional IRA. However, the rollover from IRA-1 into IRA-3 does not prevent you from making a tax-free rollover from IRA-2 into any other traditional IRA. This is because you have not, within the last year, rolled over, tax free, any distribution from IRA-2 or made a tax-free rollover into IRA-2
Based on this explanation, it is clear that the guidance from the IRS is that an individual can make one 60-day rollover per account per 1-year period. Yet, despite this publication, the IRS sought to make Mr. Bodrow’s second 60-day rollover from a separate IRA taxable as it was his second 60-day rollover in a one-year period. The IRS did not give any consideration to the fact that the second 60-day rollover was from a separate IRA (as it clearly explained in IRS Publication 590 to be acceptable).
The U.S. Tax Court agreed with the IRS and held that the limitations of IRC 408 (d)(3)(B) means that an individual can only conduct one 60-day rollover per 1-year period. After my own analysis of IRC 408 (d)(3)(B), I have to say that I agree with the Court’s opinion as the statutory language does not make a distinction between accounts but instead refers to 60-day rollovers taken per individual. Consequently, the intent of the statute is that a taxpayer can only conduct one 60-day rollover per 1-year period for all of their IRAs. Unfortunately, the error of the IRS in providing incorrect guidance does not go in favor of the taxpayer.
Based on the Court’s opinion, retirement account owners are well advised to only conduct one 60-day rollover per 1-year period. Keep in mind that you can conduct as many trustee to trustee or direct rollovers per year as you want as those transfers or rollovers result in money being sent directly to a new retirement account custodian or trustee and are not governed under the 60-day rollover rules.
As of March 18, 2014, the Bobrow case is still somewhat in limbo as there is currently a motion to reconsider filed by the taxpayer pending with the Court. Once the Court decides the motion to reconsider, the Judge will issue a final decision and after the decision is entered the taxpayer will have 90 days to appeal the Court’s ruling to the U.S. Court of Appeals for the Third Circuit. Given the significance of the Court’s ruling, I presume that the case will likely be appealed and heard by the U.S. Court of Appeals for the Third Circuit.
By: Mat Sorensen, attorney and author of The Self Directed IRA Handbook. www.sdirahandbook.com