AKconsult Posted June 18, 2013 Posted June 18, 2013 I have been speaking with a prospective client who rolled money from his previous employer's retirement plan into a new plan and then invested it in a distributorship he now owns (against the advice of his CPA). He has no employees. Now he realizes it is costing him too much to maintain the plan. I don't have a lot of details from him yet, but he is asking us to help him terminate the plan. Any ideas on the types of questions I should ask him? I am not really sure how he is going to "unwind" this now, assuming the plan assets are still invested in the business...
shERPA Posted June 18, 2013 Posted June 18, 2013 Presumably if it is a true ROBS, the plan owns the stock of the company. So, if he terminates the plan he will take a distribution of the stock and have to pay ordinary income taxes on the fair market value of it (plus penalty if under 59-1/2). Seems straightforward enough from the plan side, but where is he going to get the money to pay the taxes if he needed his retirement money to capitalize the business in the first place? Why is he asking you instead of the folks who set up the ROBS for him? I carry stuff uphill for others who get all the glory.
Effen Posted June 19, 2013 Posted June 19, 2013 For those of you who, like me, have never heard of a ROBS, attached is a general article that describes the concept. http://www.bankrate.com/finance/money-guides/small-business-robs-risks-retirement-1.aspx The material provided and the opinions expressed in this post are for general informational purposes only and should not be used or relied upon as the basis for any action or inaction. You should obtain appropriate tax, legal, or other professional advice.
BG5150 Posted June 19, 2013 Posted June 19, 2013 Clever acronym. Robbing Peter to pay Paul, perhaps? QKA, QPA, CPC, ERPATwo wrongs don't make a right, but three rights make a left.
david rigby Posted June 19, 2013 Posted June 19, 2013 Additional background information, including link to IRS memorandum, http://erisafile.com/blog/2012/06/14/more-on-using-a-401k-rollover-to-buy-a-business/ I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice.
ESOP Guy Posted June 19, 2013 Posted June 19, 2013 What part of the ROBs is costing him so much annualy? My guess it is the stock apprasial. If it isn't that there might be a way to lower the costs. If it is a ROBs and he is a single employee a case can be made he doens't need an annual stock apprasial. But he should talk to his lawyer before he heads down that road. One needs to understand the risks of no annaul apprasial.
shERPA Posted June 19, 2013 Posted June 19, 2013 Also before terminating the plan he should be sure that there have been "recurring and substantial" contributions made to it, not just the original rollover contribution. I carry stuff uphill for others who get all the glory.
BG5150 Posted June 19, 2013 Posted June 19, 2013 If it is a ROBs and he is a single employee a case can be made he doens't need an annual stock apprasial. But he should talk to his lawyer before he heads down that road. One needs to understand the risks of no annaul apprasial. Why wouldn't he need an appraisal? Doesn't the 5500 require FMV reporting of the assets? ETA Consulting LLC 1 QKA, QPA, CPC, ERPATwo wrongs don't make a right, but three rights make a left.
QDROphile Posted June 19, 2013 Posted June 19, 2013 What are the implications of value reported on Form 5500? In other words, what does it matter what is reported for the FMV? There are circumstances where a proper valuation is necessary, such as for prohibited transaction exemptions and reporting of distirbutions.
ESOP Guy Posted June 19, 2013 Posted June 19, 2013 If it is a ROBs and he is a single employee a case can be made he doens't need an annual stock apprasial. But he should talk to his lawyer before he heads down that road. One needs to understand the risks of no annaul apprasial. Why wouldn't he need an appraisal? Doesn't the 5500 require FMV reporting of the assets? I actually researched this for a PS plan that had ER stock in it. Yes, the 5500 requires a FMV (in the sense it asks for the value of the assets so I assume they want the correct value) but it doesn't require an independent apprasial to get that FMV. Only ESOPs have a legal requirement for an independent apprasial. So if the trustee can make the case they are using a valid method of coming up with the FMV you are fine for the 5500 and the law in many cases. In the case of this employer they had an apprasial done for the intial purchase of the stock. They saw the method the apprasier used, discounted cash flow. The trustees used that method the following years. We got a letter from the IRS because we had checked the box saying the assests were not appraised by an independent apprasier. We explained the method used and the IRS was happy. Having said that I can see other problems. If there ever is a distribution I would not use that method. Failing to pay FMV at times can cause a PT. Not saying I think this is the BEST solution but if one goes into it with your eyes open regarding the risks it can be A solution. On an unrelasted subject does this new way to comment have a spell checker? I don't see it if it doesn.
Effen Posted June 20, 2013 Posted June 20, 2013 On an unrelasted subject does this new way to comment have a spell checker? I don't see it if it doesn. I don't know what you mean by "new way", but when I post, it autocorrects and marks words it thinks are spelled wrong. The material provided and the opinions expressed in this post are for general informational purposes only and should not be used or relied upon as the basis for any action or inaction. You should obtain appropriate tax, legal, or other professional advice.
ESOP Guy Posted June 20, 2013 Posted June 20, 2013 On an unrelasted subject does this new way to comment have a spell checker? I don't see it if it doesn. I don't know what you mean by "new way", but when I post, it autocorrects and marks words it thinks are spelled wrong. By new way I mean since the format of this site has changed. For example I do not get any indication I have spelled something "worng". It sounds like it must be a setting on my side of things.
BG5150 Posted June 20, 2013 Posted June 20, 2013 Depends on your browser, I think. I use Firefox and I get he squiggly red line after I type worng. IE 10 has it as a feature, too. It works in Safari, as well. I believe for previous versions of Internet Explorer (ie, before 10) you have to download a plug-in for it. QKA, QPA, CPC, ERPATwo wrongs don't make a right, but three rights make a left.
shERPA Posted June 20, 2013 Posted June 20, 2013 Definitely would not want to roll the stock out to an IRA, even if he can find a custodian to hold it. Then the recent Peek v. Commissioner case would be directly applicable. If the IRA owner guarantees any company debt to a lender (a virtual requirement for a small business to get a loan), this extension of credit will be a PT and the IRA will cease to be an IRA and be fully taxable. There is at least an argument that Peek doesn't apply to qualified plans. I carry stuff uphill for others who get all the glory.
RLTGroup Posted October 4, 2013 Posted October 4, 2013 I am new to the "ROBS" arena. Once the money is rolled over into the plan and subsequently used to invest in the franchise, now the bank account has a zero balance. What value do you put on the Schedule I of the 5500? The rolled over amount or the Zero balance of the bank statement?
ESOP Guy Posted October 4, 2013 Posted October 4, 2013 I am new to the "ROBS" arena. Once the money is rolled over into the plan and subsequently used to invest in the franchise, now the bank account has a zero balance. What value do you put on the Schedule I of the 5500? The rolled over amount or the Zero balance of the bank statement? If the ROBS is set up correctly the cash was exchanged for shares in a corporation which then used the funds to invest in the franchise. So you would put the FMV of the stock of the corporation that own the franchise on the Sch I. I am not trying to be mean here but based on your question it would appear you are in over your head. I would strongly suggest you seek out competent advice on this topic before you go farther. ROBS are a tricky subject if for no other reason the IRS has basically gone on record as saying they don't like them. Money spent up front will look like cheap insurance if an IRS agent comes walking through the door.
RLTGroup Posted October 4, 2013 Posted October 4, 2013 Thanks ESOP. I do not take your comment to be mean. I do appreciate the advise however.
justanotheradmin Posted January 22, 2015 Posted January 22, 2015 I know this is an older thread, but I have a question. Is there a PT if the one guy purchases the stock? I'm trying to follow the PT rules in ERISA 406, 407 and 408. Looks like there is an exemption in ERISA §414 if needed to comply with §407, but just trying to get rid of the plan wouldn't be a §407 reason. Or do folks just recommend the assets be rolled over in kind to an IRA provider that can handle it? I'm a stranger on the internet. Nothing I write is tax or legal advice. I'd like a witty saying here, but I don't have any. When in doubt, what does the plan document say?
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