Definition of Primary Residence for hardshp casualty loss--

[jkharvey]

The participant lives with her son. Neither the participant not the son legally own the home. Does the definition of "primary residende" for hardship purposes have any need for legal ownership? Seems to me it would not. The reference to Section for the Casualty Loss hardship refers only to the type of casualty, correct? There is not a requirement that the paritcipant would actually be able to deduct this under 165; therefore the ownership question would be an issue.

Thanks

[chc93]

Reg 1.401(k)-1(d)3(iii)(B)(4) Payments necessary to prevent the eviction of the employee from the employee's principal residence or foreclosure on the mortgage on that residence.

First part implies rental payments... no ownership. Second part implies ownership with mortgage. If so, no legal ownership of "principal residence" required.

[Peter Gulia]

Paragraph (6) refers to "[e]xpenses for the repair of damage to the employee's principal residence that would qualify for the casualty deduction under section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income)."

If the plan's provision follows the rule's text, could an administrator interpret this to recognize a hardship if the expense is of a kind for which someone (not necessarily the participant) could get an IRC 165 deduction (if one meets or ignores the 10% condition)?

Apart from that point, one might want some evidence that the claimant paid, incurred, or would incur the expense, and that it is reasonable for the claimant to pay for repairs to something she does not own. Without that, one might question whether the claimant has an "expense" or a "need".