Self Employed 401K Experts Self Employed 401K Experts

Self Employed 401k "Checkbook Control"

With a Self Employed 401(k) Plan, as trustee of the Plan, you no longer have to get each 401(k) Plan investment approved by the custodian of your account. This means that all assets of the 401(k) trust are under the sole authority of the Self Employed 401k Plan participant (you). A Self Employed 401(k) plan allows you to eliminate the expense and delays associated with an IRA custodian, enabling you to act quickly when the right investment opportunity presents itself.

For example, Mary has established a Self Employed 401(k) Plan for her business. Mary is appointed the trustee of her business’s Self Employed 401(k) Plan. Mary has opened her Self Employed 401(k) Plan bank account at a local bank. Mary wishes to use her 401(k) Plan funds to purchase a home from Ben, an unrelated third-party (non-disqualified person). Ben is anxious to close the transaction as soon as possible. With a Self Employed 401(k) Plan, Mary, as trustee of the Plan, can simply write a check using the funds from the 401(k) Plan bank account or can wire the funds directly from the account to Ben. Mary, as trustee of the Plan, no longer needs to seek the consent of the custodian or a financial institution before making the real estate purchase. With a Self Employed 401(k) Plan without “checkbook control”, Mary would likely not be able to make the real estate purchase since seeking custodian approval would have likely taken too much time.

Investment Opportunities

With a Self Employed 401(k) Plan, you will be able to invest in almost any type of investment opportunity that you discover, including: Real Estate (rentals, foreclosures, raw land, tax liens etc.), Private Businesses, Precious Metals, Hard Money & Peer to Peer Lending as well as stock and mutual funds; you're only limit is your imagination. The income and gains from these investments will flow back into your 401(k) Plan tax-free. 

The following are some examples of types of investments that can be made with your Self Employed 401(k) Plan:

  • Residential or commercial real estate
  • Domestic or Foreign real estate
  • Raw land
  • Foreclosure property
  • Mortgages
  • Mortgage pools
  • Deeds
  • Private loans
  • Tax liens
  • Private businesses
  • Limited Liability Companies
  • Limited Liability Partnerships
  • Private placements
  • Precious metals and certain coins
  • Stocks, bonds, mutual funds
  • Foreign currencies

 

Real Estate

The IRS has always permitted a 401(k) Plan to purchase or hold real estate or raw land. Making a real estate investment is as simple as writing a check. Since you are the trustee of your Self Employed 401(k) Plan, you have the authority to make investment decisions on behalf of your 401(k) Plan. One major advantage of purchasing real estate with a Self Employed 401(k) Plan is that all gains are tax-deferred until a distribution is taken.

For example, if you purchased a piece of property with your Self Employed 401(k) Plan for $200,000 and later sold the property for $400,000, the $200,000 of gain would generally be tax-free. Whereas, if you purchased the property using personal funds (non-retirement funds), the gain would be subject to federal income taxes and in most cases state income tax.

Using Leverage to Purchase Real Estate with a Self Employed 401(k) Plan

Unlike a Self Directed IRA LLC, when a Self Employed 401(k) Plan buys real estate that is leveraged with mortgage financing it is exempt from paying any Unrelated Business Taxable Income (UBTI or UBIT) tax on the income or gain generated. With the UBTI tax rates at approximately 37%, the Self Employed 401(k) Plan offers real estate investors looking to use nonrecourse financing in a transaction a tax efficient solution.

Tax Liens

By using a Self Employed 401(k) Plan to purchase tax-liens or tax deeds, all income and profits are tax-deferred back into your Self Employed 401(k) Plan until a distribution is taken. More importantly, with a Self Employed 401(k) Plan, you, as the trustee, will have “checkbook control over your 401(k) Plan funds allowing you to make purchases on the spot without custodian consent. In other words, purchasing a tax-lien or tax deed is as easy as writing a check!

Loans & Notes

The IRS and ERISA rules permit the use of Self Employed 401(k) Plan funds to make loans or purchase notes from third parties. By using a Self Employed 401(k) Plan to make loans or purchase notes from third parties, all interest payments received would be tax-deferred until a distribution is taken.

For example, if you used a Self Employed 401(k) Plan to loan money to a friend, all interest received would flow back into your Self Employed 401(k) Plan tax-free. Whereas, if you lent your friend money from personal funds (non-retirement funds), the interest received would be subject to federal and in most cases state income tax.

Private Businesses

With a Self Employed 401(k) you are permitted to purchase an interest in a privately held business. The business can be established as any entity other than an S Corporation (i.e. limited liability company, C Corporation, partnership, etc.). When investing in a private business using Self Employed 401(k) Plan funds, it is important to keep in mind the “Disqualified Person” and “Prohibited Transaction” rules under IRC 4975 and the Unrelated Business Taxable Income rules under IRC 512.

Investing in an Active Business - The Unrelated Business Taxable Income Rules

If a Self Employed 401(k) invests in any business regularly carried on or by a partnership or LLC of which it is a member, all income or gains allocated to the Self Employed 401(k) will likely be treated as an unrelated business and subject to the Unrelated Business Taxable Income (“UBTI” or “UBIT”) rules pursuant to Section 512 of the Internal Revenue Code. For example, a Self Employed 401(k) investment into an LLC or partnership that is engaged in an active trade or business such a shoe factory; gas station, retail store or restaurant would likely be treated as an unrelated business and subject to UBTI.

The UBTI rules were enacted by Congress in the 1950s t o prevent tax-exempt entities, such as charities, from competing unfairly with taxable entities. Since an 401(k) is treated as a tax-exempt entity pursuant to Internal Revenue Code Section 401, the UBTI rules apply to Self Employed 401(k) investments.

Most 401(k) investments are not subject to the UBTI rules because of the many exceptions available. For example, dividends, interest, annuities, royalties, capital gains, most rentals from real estate, and gains/losses from the sale of real estate are all excluded from the application of the UBTI tax. However, rental income generated from real estate that is “debt financed” loses the exclusion, and that portion of the income becomes subject to UBTI.

A Self Employed 401(k) subject to UBTI is taxed at the trust tax rate because a 401(k) is considered a trust pursuant to Internal Revenue Code Section 401. For 2019, a Self Employed 401(k) subject to UBTI is taxed at the following rates:

  • $0 - $2,550 = 10% of taxable income
  • $2,551 - $9,150 = $255 + 24% of the amount over $2,550
  • $9,151 - $12,500 = $1,839 + 35% of the amount over $9,150
  • $12,501 + = $3,011.50 + 37% of the amount over $12,500

Precious Metals & Coins

A Self Employed 401(k) Plan is permitted to invest in certain platinum coins as well as certain gold, silver, platinum, or palladium bullion provided the coins are held in a financial organization.

The advantages of using a Self Employed 401(k) Plan with “checkbook control” to purchase precious metals and/or coins is that their values generally keep up with, or exceed, inflation rates better than other investments. In addition, the metals and/or coins can be held in the name of the 401(k) Plan at a financial organization (at any local bank) safety deposit box eliminating depository fees.

Foreign Currencies

The IRS does not prevent the use of 401(k) funds to purchase foreign currencies, including Iraqi Dinars. Many believe that foreign currency investments offer liquidity advantages to the stock market as well as significant investment opportunities.

Purchasing foreign currency, such as the Iraqi Dinar, with a Self Employed 401(k) Plan is as easy as writing a check. As trustee of the Self Employed 401(k) Plan, you will have “checkbook control” over your 401(k) Plan funds, providing you with the ability to make investments without requiring custodian consent. In addition, the foreign currency notes, including Iraqi Dinars, can be held in the name of the 401(k) Plan at a financial organization (any local bank) safety deposit box eliminating depository fees.

By using a Self Employed 401(k) Plan to purchase foreign currencies, such as the Iraqi Dinar, all foreign currency gains generated would be tax-deferred until a distribution is taken. In the case of a Self Employed 401(k) Plan, all foreign currency gains would be tax-free.

Stocks, Bonds, Mutual Funds, CDs

In addition to non-traditional investments such as real estate, a Self Employed 401(k) Plan may purchase stock, bonds, mutual funds, and CDs. The advantage of using a Self Employed 401(k) Plan with “checkbook control” is that you are not limited to just making these types of investments. With a Self Employed 401(k) Plan with “checkbook control” you can open a stock trading account with any financial institution as well as purchase real estate, buy tax liens, or lend money to a third-party. Your investment opportunities are endless!

What Types of Investments are Not Permitted Using a Self Employed 401(k) Plan?

The Internal Revenue Code does not describe what an IRA can invest in, only what it cannot invest in. Internal Revenue Code Section 4975 prohibits Disqualified Persons from engaging in certain type of transactions. The purpose of these rules is to encourage the use of 401(k) funds for accumulation of retirement savings and to prohibit those in control of retirement funds from taking advantage of the tax benefits for their personal account.

Who is a “Disqualified Person”?

The IRS has restricted certain transactions between the Self Employed 401(k) Plan and a “disqualified person”. The rationale behind these rules was a congressional assumption that certain transactions between certain parties are inherently suspicious and should be disallowed.

The definition of a Disqualified Person (Internal Revenue Code Section 4975(e)(2)) extends into a variety of related party scenarios, but generally includes the 401(k) Plan participant, any ancestors or lineal descendants of the 401(k) Plan participant, and entities in which the 401(k) Plan participant holds a controlling equity or management interest. In essence, under Code Section 4975, a “Disqualified Person” means:

  • A fiduciary (e.g., the 401(k) Plan participant, or person having authority over making 401(k) Plan investments),
  • A person providing services to the plan (e.g., the trustee or custodian),
  • An employer, any of whose employees are covered by the 401(k) Plan,
  • An employee organization any of whose members are covered by the 401(k) Plan,
  • A 50 percent owner of C or D above,
  • A family member of A, B, C, or D above (family members include the fiduciary’s spouse, parents, grandparents, children, grandchildren, spouses of the fiduciary’s children and grandchildren (but not parents-in-law),
  • An entity (corporation, partnership, trust or estate) owned or controlled more than 50 percent by A, B, C, D, or E. Whether an entity is a disqualified person is determined by considering the indirect stockholdings/interest which would be taken into account under Code Sec. 267(c), except that members of a fiduciary's family are the family members under Code Sec. 4975(e)(6) (lineal descendants) for purposes of determining disqualified persons.
  • A 10 percent owner, officer, director, or highly compensated employee of C, D, E, or G,
  • A 10 percent or more partner or joint venturer of a person described in C, D, E, or G.

 

Note: brothers, sisters, aunts, uncles, cousins, step-brothers, step-sisters, and friends are NOT treated as “Disqualified Persons”.

Prohibited Transactions

Self Employed 401(k) prohibited transactions are listed in Code Section 4975; prohibited transactions are any direct or indirect:

  • Sale or exchange, or leasing, of any property between a plan and a disqualified person;
  • Lending of money or other extension of credit between a plan and a disqualified person;
  • Furnishing of goods, services, or facilities between a plan and a disqualified person;
  • Transfer to, or use by or for the benefit of, a disqualified person of the income or assets of a plan;
  • Act by a disqualified person who is a fiduciary whereby he deals with the income or assets of a plan in his own interests or for his own account; or
  • Receipt of any consideration for his own personal account by any disqualified person who is a fiduciary from any party dealing with the plan in connection with a transaction involving the income or assets of the plan.

 

Examples of Prohibited Transactions

The following are a number of common Self Employed 401(k) Plan related transactions that are prohibited pursuant to Internal Revenue Code Section 4975:

  • Selling interest in real estate to a Disqualified Person
  • Selling or transferring real estate you own personally to your Self Employed 401(k) Plan
  • Purchasing real estate with Self Employed 401(k) funds and leasing to a disqualified person
  • Investing 401(k) funds in a house that is used by the 401(k) owner (or other Disqualified Person)
  • Using the Self Employed 401(k) Plan as security for a loan
  • Personally guaranteeing a loan to your Self Employed 401(k) Plan
  • Buying real estate with your Self Employed 401(k) Plan and making repairs personally or having a “Disqualified Person” make repairs
  • Buying real estate with personal funds and then transferring title to the Self Employed 401(k)
  • Using personal funds to pay taxes and expenses related to the Self Employed 401(k) Plan real estate investment
  • Being compensated for any services performed for or on behalf of the Self Employed 401(k) Plan
  • Contributing personal funds to your 401(k) Plan bank account
  • Acquiring a credit card for your Self Employed 401(k) Plan bank account
  • Using your retirement funds to make a real estate investment and earning a commission personally from the purchase
  • Making an investment using your 401(k) Plan into a company or fund that will benefit the 401(k) Plan participant or a Disqualified Person personally
  • Making an investment using Self Employed 401(k) funds to facilitate or protect the 401(k) owner’s investment
  • The Self Employed 401(k) invests in a business owned by the Self Employed 401(k) Plan participant who serves as the 401(k) Plan trustee and the 401(k) Plan participant owner generates a salary from the business
  • Self Employed 401(k) Plan participant, as trustee of the Self Employed 401(k) Plan, using 401(k) Plan funds to lend money to an entity which he/she has an interest in
  • Engaging in a transaction whereby the Self Employed 401(k) Plan participant– serving as trustee of the 401(k) Plan- independent judgment is affected
  • Purchasing company stock from the Self Employed 401(k) Plan participant whereby the purchase helps the Self Employed 401(k) Plan owner personally
  • Investing in a company owned by the Self Employed 401(k) Plan participant who is the trustee of the Self Employed 401(k) Plan whereby the investments benefits the Self Employed 401(k) Plan participant personally

 

Tax-Free Gains

With a Self Employed 401(k) Plan “Checkbook Control” structure, all income and gains from investments will generally flow back to your 401(k) Plan tax-free. Because a 401(k) Plan is treated as a tax-exempt entity pursuant to Internal Revenue Code Section 401, all income and gains generated by the 401(k) Plan will flow-through to the 401(k) Plan account tax-free!

For additional information on the advantages of using a Self Employed 401(k) Plan with “checkbook control” to make investments, please contact one of our 401K Experts at 800-472-0646.