InquisitivePerson Posted December 15, 2024 Posted December 15, 2024 I've been spinning my wheels on this one, so I am reaching out to my colleagues for guidance. Bank wishes to lend Company funds secured by Company's equipment, accounts receivable, inventory, etc. Company is owned 85% by the Company's retirement plan ("Plan") and 15% equally by two individuals: Owner A and Owner B Three individuals used their balances in the Plan as an equity infusion into Company. One of these individuals is Company's President and Secretary/Treasurer and a Board member; and another is Company's retirement plan trustee (for the 85% Plan shareholder) While the rollover assets of the Plan can't be pledged as collateral, nor can the Plan guarantee the Bank loan; can any other assets owned by Company be used to secure the loan from the bank, or does it result in a prohibited transaction. If so, where in the Code, Regs, case law would I find that. I have searched everywhere.
EBECatty Posted December 16, 2024 Posted December 16, 2024 I think you're looking for 29 CFR 2510.3-101, which defines "plan assets." There's a lot in that rule, but generally the corporate assets of an "operating company" are not considered plan assets so can be pledged for a bank loan to the company without causing a PT. Gina Alsdorf 1
InquisitivePerson Posted December 16, 2024 Author Posted December 16, 2024 Thank you so much for this!
Peter Gulia Posted December 16, 2024 Posted December 16, 2024 But even if that pledge is not a prohibited transaction, whether a retirement plan should allow the corporation to do the dealings described involves a distinct set of fiduciary-responsibility questions. Each fiduciary of the retirement plan should lawyer-up. And each of them might prefer a lawyer free from others’ interests. InquisitivePerson 1 Peter Gulia PC Fiduciary Guidance Counsel Philadelphia, Pennsylvania 215-732-1552 Peter@FiduciaryGuidanceCounsel.com
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