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Hardship for Preventative Home "Repair"


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Posted

A 401(k) participant requested a hardship under 1.401(k)-1(d)(3)(ii)(B)(6), relating to the "repair" of the participant's principal residence, for costs associated with the removal of a tree that posed a danger of falling on the participant's residence (but had not actually fallen yet).  From a practical, policy perspective, I understand that it makes sense for the participant to take the tree down before it actually falls on the house.  However, I don't think this would qualify as a casualty loss under 165, and therefore wouldn't qualify as a "repair" eligible for hardship.  (See, e.g., Rev. Rul. 76-134.)  Do you all agree?  Other thoughts?

(As an aside, I realize that SECURE 2.0 permits self-certification, but in this case the participant volunteered the information, so the plan sponsor has actual knowledge.)

Posted

Does the plan provide a § 72(t)(2)(I) emergency personal expense distribution?

If not, might the plan sponsor consider an in-operation amendment (to be included in a SECURE 2019 & 2022 restatement)?

The standard for an “emergency personal expense” is wider than for a hardship. A participant may certify that the claimed distribution is “for purposes of meeting unforeseeable or immediate financial needs relating to necessary personal or family emergency expenses.” I.R.C. (26 U.S.C.) § 72(t)(2)(I)(iv).

Although the $1,000 an emergency personal expense distribution might provide might meet only a portion of a tree-removal expense, $1,000 might be more useful than $0.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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