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Monday, October 29, 2012

Tax Deductible Life Insurance, but how?

Universal Life Insurance

Universal Life Insurance is a form of Permanent Life Insurance, with considerable differences between the two. This form of insurance was created to provide customers with a better understanding of their policy and relieve them of some of the stricter policy provisions that come with standard whole life insurance.

Universal Life Insurance: How it Works

With universal life, the policyholder can arrange the benefits to meet his or her needs. The policyholder controls how much of the premium is paid toward the insurance and toward the savings, and can change the value of the policy as well. There may be a specific limit to how much the policy can be changed at one time, especially if the policyholder does not provide another health exam. Increases in the death benefit usually require updated proof of insurability. Universal life policies also allow for changing the amount and timing of premiums from time to time, as long as the premium covers the cost of monthly maintenance of the policy and maintains a basic benefit amount. If you fail to cover these minimum premiums, the death benefit of your policy can be greatly reduced.

Choosing a Universal Life Policy

Universal life policies usually have a minimum interest rate, but the rates can fluctuate similarly to a money market account. Therefore there are no guarantees as far as savings or cash value earnings. However, the growth of these accounts is at a substantially higher rate than average whole life insurance. These policies can sometimes allow any dividends paid by the insurer to be placed in the cash value account, as well.
Universal life insurance is the perfect policy for someone who has yet to purchase a home or start a family but expects to do so in the future because of its easy changeability and quick profit margin. However, because it involves more participation from the policyholder, consultation is recommended.
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ROBS Plans.

ROBS plans, while not considered an abusive tax avoidance transaction, are, according to the IRS, "questionable" because they may solely benefit one individual – the individual who rolls over his or her existing retirement 401k withdrawal funds to the ROBS plan in a tax-free transaction. In most cases, since the IRS pronouncement concerning this potentially discriminatory approach, ROBS plans have been inclusive of all participants and provide broad-based participation for all employees. The ROBS plan then uses the rollover assets to purchase the stock of the new business. A C corporation must be set up in order to roll the 401K withdrawal.
Promoters, such as a Roth IRA broker of a self directed IRA LLC, or small business financing, aggressively market IRS ROBS arrangements to prospective entrepreneurs and business owners for funding for a business as small business financing. In the case of most ROBS facilitators, there is a very close relationship between the promoter/facilitator and the franchise industry, seeking to sell and promote business "opportunities" and seeking funding sources for these sales and promotions. Most ROBS "promoters" and facilitators pay substantial referral fees to the franchise brokers who refer business to the promoters. Rarely are these fees disclosed to the entrepreneur. Fees charged by most "promoters," consequently, are in excess of the fees that would be charged by attorneys and accountants for the same services who are prohibited from paying referral fees. There remains a substantial question whether such referral fees are illegal under ERISA and the U.S. Criminal Code: Offer, Acceptance, or Solicitation to Influence Operations of Employee Benefit Plan (18 U.S.C. Section 1954).
In many cases, the broker will apply to IRS for a favorable determination letter (DL) as a way to assure their clients that IRS approves the ROBS arrangement. The IRS issues a DL based on the plan’s terms meeting Internal Revenue Code requirements. DLs do not give plan sponsors protection from incorrectly applying the plan’s terms or from operating the plan in a discriminatory manner. When a plan sponsor administers a plan in a way that results in prohibited discrimination or engages in prohibited transactions, it can result in plan disqualification and adverse tax consequences to the plan’s sponsor and its participants. Accordingly, promoters who emphasize or "promote" base on a favorable determination letter are, at a minimum, engaging in deceptive trade practices.

ROBS Project Findings

New Business Failures
Preliminary results from the ROBS Project indicate that, although there were a few success stories, most ROBS businesses either failed or were on the road to failure with high rates of bankruptcy (business and personal), liens (business and personal), and corporate dissolutions by individual Secretaries of State. Some of the individuals who started ROBS plans lost not only the retirement assets they accumulated over many years, but also their dream of owning a business. As a result, much of the retirement savings invested in their unsuccessful ROBS plan was depleted or ‘lost,’ in many cases even before they had begun to offer their product or service to the public. These findings are questionable since there are many ROBS arrangements in which the businesses are quite successful and represent very prudent alternatives to more traditional investments.
Specific Problems with ROBS
Some other areas the ROBS plan could run into trouble:
  • After the ROBS plan sponsor purchases the new company’s employer stock with the rollover funds, the sponsor amends the plan to prevent other participants from purchasing stock. Since the 2008 announcement from the IRS such amendments are rare.
  • If the sponsor amends the plan to prevent other employees from participating after the DL is issued, this may violate the Code qualification requirements. These types of amendments tend to result in problems with coverage, discrimination and potentially result in violations of benefits, rights and features requirements.
  • Promoter fees
  • Valuation of assets
  • Failure to issue a Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., when the assets are rolled over into the ROBS plan.
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Do's and Don'ts of Tranactions for Self Directed IRA's

Prohibited Asset Types
IRS regulations prohibit IRA investments in life insurance and in collectibles such as artwork, rugs, antiques, metals (there are exceptions for certain kinds of bullion), gems, stamps, coins (there are exceptions for certain coins minted by the U.S. Treasury), alcoholic beverages, and certain other tangible personal property.

Prohibited Transactions

IRS regulations prohibit transactions that are an improper use of the value in the account or annuity by the account owner, the account owner's beneficiary, or any other disqualified person. These rules are generally designed to prevent self-dealing. Disqualified persons include your fiduciary and members of your family, such as your spouse, ancestor, lineal descendant (e.g. children), and any spouse of a lineal descendant). In addition, other disqualified persons include:
  • Service providers of the IRA (e.g., custodian, CPA, financial planner);
  • An entity (such as a corporation, partnership, limited liability company, trust or estate) of which 50% or more is owned directly or indirectly or held by a fiduciary or service provider;
  • An entity that is a 10% or more partner or joint venturer of with an entity that is 50% or more owned directly or indirectly or held by a fiduciary or service provider;
  • Additionally, in the case of a SEP or SIMPLE IRA:
    • The Employer;
    • 50% or more owner of the Employer;
    • Officers, directors, 10% or more shareholders, and highly compensated employees of the Employer;
    • An entity 50% or more owned by the Employer;
    • 10% or more partner or joint venturer of the Employer.
The following are prohibited transactions with an IRA:
  • Borrowing money from it.
  • Selling property to it.
  • Receiving unreasonable compensation for managing it.
  • Using it as security for a loan.
  • Buying property for personal use (present or future) with IRA funds.
If the account owner or beneficiary engaged in a prohibited transaction, the account is treated as distributing all its assets to you at their fair market values on the first day of the year in which the transaction occurred. The distribution would be subject to any taxes or penalties associated with an early distribution. Generally, a 10% early withdrawal penalty and treatment of the distribution as ordinary income for the purposes of income taxes.
Examples of self-dealing include:
  • Having your IRA purchase real estate that you own or use.
  • Issuing a mortgage on a relative’s new residence purchased by a family member who is a disqualified person as listed above.
  • Granting a child a second mortgage for the down payment on his or her first home.
  • Buying stock from the account owner involving IRA funds and a disqualified person.
  • Purchasing stock in a closely held corporation in which the account owner has a controlling equity position.
  • Purchasing restricted stock from a family member who is a disqualified person listed above.

Common Permitted Investments

Some of the additional investment options permitted under the regulations include real estate, stocks, mortgages, franchises, partnerships, private equity and tax liens. Real estate may include residential and commercial properties (U.S. & Internationally), farmland, raw land, new construction, property renovation, development, and passive rental income. Real estate purchased in a self-directed IRA can have a mortgage placed against the property, thus lowering the amount of total cash needed for a purchase; however, neither the IRA nor the account owner of the IRA can have personal liability on the mortgage. Business investments may include partnerships, joint ventures, and private stock. This can be a platform to fund a start-up business or other for-profit venture that is managed by someone other than the account owner of the IRA. Other alternative investments include: commodities, hedge funds, commercial paper, foreign stock, royalty rights, equipment & leases, American depository receipts, and U.S. T-bill

Limited liability company structured IRA

In an effort to reduce fees, paperwork, and processing delays, some self-directed IRA investors choose to employ a Limited Liability Company (LLC) IRA structure. In such a structure the account holder directs his IRA custodian to invest into a limited liability company that the account owner manages himself. The account owner can then execute transactions on the LLC level without the involvement of the IRA custodian, thus reducing fees and eliminating custodian transactional fees and delays. The profits of the LLC pass through to the IRA with nearly identical tax favorable treatment. Some claim that this IRA LLC strategy has been legitimized through a tax court case: Swanson v. Commissioner, 106 T.C. 76 (1996). Others disagree on the validity of the court case.[1] Some refer to this structure as "checkbook control" because the IRA account holder often has sole signing authority for the LLC and its bank accounts.
Although Swanson v. Commissioner doesn't directly relate to a single member IRA LLC, but instead merely sets a precedence that an individual can control an entity owned by an IRA or IRAs that they are a disqualified person to, there are other cases, private letter rulings and IRS Memorandums that collaborate the validity of the IRA LLC and Checkbook Control over an IRA. To quote a few:
Ancira v. Commissioner 119 T.C. No. 6 (2002)- Ancira acted as a conduit for her self directed IRA custodian
DOL Advisory Opinions 97-23A and 2005-03A - The Department of Labor takes the position that if an asset is owned 100% by a plan, that asset becomes the plan
IRS Field Service Advice 200128011 - IRS Confirms: "The type of investment that may be held in an IRA is limited only with respect to insurance contracts, under section 408(a)(3), and with respect to certain collectibles, under section 408(m)(1").

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The Ultimate Self Directed IRA

The Ultimate IRA redefines investment freedom.
  • True Diversification. With the Ultimate Self-directed IRA you can invest your retirement funds directly into real estate, tax liens, small businesses, private placements, personal loans, foreclosures, gold & silver and all other alternative (i.e. non-Wall Street) investments that are not available through a typical IRA. Of course, you can continue to invest your retirement funds in all traditional investments (e.g. stocks, bonds, mutual funds, etc.)
  • Checkbook Control. The Ultimate IRA comes with a checking account, which we will assist you in setting-up at your bank so your retirement funds will always be under your control. Once the account is set-up, it's easy to begin placing investments, all you have to do is simply write a check. This enables you to move quickly when time-sensitive opportunities and other on-the-spot investments present themselves.
  • Investment Control. The Ultimate IRA is the ultimate self-directed IRA, giving you complete control over your retirement account, enabling you to make all investment decisions alone, or with the help of a financial professional.
  • Tax-Deferred Investing. The Ultimate IRA enables you to take control of your retirement funds without incurring any early distribution penalties or taxes. Furthermore, the profits generated from your investments flow back into your account and continue to grow tax-deferred, or tax-free in the case of a Roth, helping you build the retirement you want.
  • Rollover Options. Your Ultimate IRA can be funded by transferring or rolling-over funds from any of your existing retirement accounts or plans IRA, 401K, Roth IRA, SEP IRA, Keogh, 403b, etc., or by making an initial contribution.
  • Limited Fees. Once your Ultimate IRA is set-up, there are no asset-based-holding fees or transaction fees, rather there is a low fixed annual fee regardless of how large your account is or how many transactions you place during the year.
How does the Ultimate Self-Directed IRA work?
Let’s look under the hood of the self-directed IRA, and see how it works.
  1. Broad starts the process by facilitating a new self-directed IRA at a registered self-directed IRA custodian.
  2. With the new self-directed IRA in place, funds from previous retirement accounts (IRA, 401K, etc.) can now be rolled over. Or the account can be started with an initial contribution.
  3. Broad then sets up a Limited Liability Company (LLC) for the self-directed IRA. This is an important step as the LLC will serve as the investing platform for the plan. Each LLC is customized to adhere to the laws and regulations which govern self-directed IRA investment platforms.
  4. Capitalization now occurs by instructing the self-directed custodian to invest the self-directed IRA in the newly formed LLC. This is a process that is similar to buying stock, i.e. the self-directed IRA buys all the “shares” of the LLC. The self-directed IRA now owns the LLC.
  5. The custodian sends a capitalization check to the account holder. The account holder can now open a checking account at the bank of their choosing in the name of their LLC.
  6. And now… start investing!

How easy is it to set up the Ultimate Self-Directed IRA?

The Broad process for establishing a self-directed IRA has been crafted with only one consideration: you. As a company whose defining hallmark is industry leading customer service, we’ve worked hard to make sure that your experience is smooth and hassle-free. Our team of accountants, self-directed specialists, and attorneys is dedicated to giving you a complete package. We’ll hold your hand the entire way, and we’re always available for any questions you may have.

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