Three Planning Ideas
Examining strategies
for avoiding early-retirement penalties, rolling over life insurance proceeds,
and more.
By Natalie Choate 9-13-2013
Planners who work with
retirement benefits often come up with creative ideas for helping their clients
maximize the value of those benefits. Here are three that I recently received.
Note that the questions are paraphrased and do not reflect the exact facts
presented to me.
Do these ideas work?
You be the judge!
Idea No. 1: If an employee who has not yet attained age 55 is fired or quits his job, I know he is not eligible for the "early retirement" exception that shelters some distributions from the 10% tax on pre-age-59 1/2 distributions. To preserve his potential eligibility for that exception, can he start a new business, have the new business adopt a qualified plan, and roll his benefits from the old employer's plan into that new plan, then take the money out penalty-free if he retires after age 55?
Comments: As you know, if an employee terminates his employment at age 55 or
later, he can receive distributions from the former employer's qualified
retirement plan penalty-free under the "early retirement" exception
(one of the 13 exceptions to the 10% penalty on pre-age-59 1/2 distributions).
And as you also know, if service is terminated before age 55, he totally loses
eligibility for that exception--even if he waits until age 55 to take out the
money, the exception won't apply because he "retired" prior to age 55.
As for the planning
idea, it basically does work. The former employee can get a new job, roll the
old plan money into the qualified retirement plan at his new place of
employment, and then retire from the new job after he eventually reaches age
55, accessing his money penalty-free. The problem is, not everyone is capable
of starting a new business, incorporating it, and causing the new company to
adopt a new qualified retirement plan. The "new job" could not simply
be self-employment, because it's not clear how a self-employed person ever
meets the definition of "retired"; that's why I'm suggesting he would
have to incorporate his new business to use this idea. And obviously if there
is no real "business" (i.e., income-generating), this idea is a
nonstarter.
Idea
No. 2: If a surviving spouse
receives life insurance proceeds as part of the death benefit payable to her
under her deceased spouse's qualified retirement plan, can she roll that over
tax-free into a Roth IRA? What if the beneficiary is a non-spouse designated beneficiary--for
example, the decedent's child? Can he or she have the insurance proceeds rolled
directly into a Roth IRA? This would seem to be a way to achieve an inherited
Roth IRA with little income tax impact if it is allowed.
Comments: As you know, life insurance proceeds paid under a qualified plan
to the surviving spouse or other beneficiary of the deceased employee are not
totally income tax-free (unlike life insurance proceeds paid outside of a
retirement plan, which are totally income tax-exempt under § 103).
Proceeds of a plan-owned life insurance policy are tax-free only to the extent
of the "pure" death benefit amount. The amount of the cash value of
the policy immediately before the employee's death is taxed as ordinary income,
just like any other retirement plan distribution. However, even so, rolling
over plan-owned life insurance proceeds into an inherited Roth IRA would be a
very cheap (though not totally tax-free) way to acquire an inherited Roth IRA.
I am unable to find
anything in the Code or IRS Regulations that would prevent or prohibit this
type of rollover. Once upon a time, nontaxable plan distributions were not
eligible for rollover, but that prohibition was repealed years ago--and the
repeal did not contain any exceptions for life insurance proceeds as far as I
can see. I'm not saying I want to be the first one to try it, but I'm darned if
I can figure out why it wouldn't work.
Idea No. 3: For Medicaid-planning
purposes, my client (age 74) wants to invest his entire IRA into a three-year
fixed annuity. The client would like to take the payments under the annuity
contract, treat part of each payment as his minimum distribution for the year
(using the value of the contract as his "account balance" value), and
roll the rest of the annuity payment back into another IRA for continued tax
deferral. However, you have stated in seminars that all the payments under the
annuity contract would be considered "minimum required
distributions," not eligible for rollover. Is that in fact your position?
Comments: If all or any part of an IRA account balance is used to purchase a
true annuity, two consequences flow: First, all payments under the annuity
contract are considered minimum required distributions and thus are not
eligible for rollover. Second, if only part of the IRA balance was used to buy
the contract, then (beginning the year after the purchase occurs) the non-annuitized
portion of the IRA must continue to pay minimum distributions computed in the
regular way; the annuity contract value is excluded from the account balance
valuation, but the annuity payments don't "count" toward the minimum
required distribution for the non-annuitized portion of the account.
The regulations seem to
be mainly designed for an individual who is taking an annuity for his lifetime
or a joint and survivor life annuity with his beneficiary. However, they also
clearly apply to the purchase of a fixed-term annuity, such as the one your
client is contemplating. Unfortunately there does not seem to be any exception
for the purchase of a short-term annuity. Thus, even though your client could
have purchased a much longer-term annuity with much smaller annual payments, if
he buys a three-year fixed-term annuity when he is older than age 70 1/2, he is
going to be stuck with non-rollable distributions liquidating his entire
balance in three years.
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