Recognizing Disqualified Persons and Prohibited Transactions When Investing with a Self-Directed IRA

December 23, 2009
TJ Valenzuela

Prohibited transactions rules are intended to ensure that the assets of a plan are invested in a manner that benefits the SDIRA itself and not the SDIRA owner. Failing to understand these rules, or to find an advisor that does, may result in possible penalties.

Increasingly, Self-Directed IRA (SDIRA) owners are looking at alternatives to traditional stocks and bonds for their retirement accounts. Growing investor sophistication is driving many in the direction of Real Estate, Private Stock, non-public Hedge Funds and other investments traditionally excluded from their current retirement portfolios. Alternative investment transactions through a SDIRA, may provide greater transparency and control over retirement assets. Additionally, a traditional SDIRA allows taxes on assets held inside the IRA account to be deferred or postponed until the money is withdrawn from the account, presumably after the age of 59 ½. Alternative investments may allow account owners to take a proactive approach to improving investment returns because they choose asset classes that are not correlated to their current portfolios.

When working with SDIRA’s, it is important to be familiar with the prohibited transaction and disqualified person sections of the Internal Revenue Code (IRC). Failing to understand Prohibited Transactions, or to find an advisor or professional that does, may lead to the disqualification of your SDIRA, resulting in possible taxes and penalties. This article will outline the importance of disqualified person(s), prohibited transaction(s), and common scenarios SDIRA owners should avoid with their SDIRA.

The prohibited transactions rules are intended to ensure that the assets of a plan are invested in a manner that benefits the SDIRA itself and not the SDIRA owner. This is intended to prevent a person, such as the IRA holder, from using the assets of their SDIRA for personal benefit. It is incredibly important that the IRA holder not engage in any ‘transaction’ with his or her IRA. Consequently, transactions involving the SDIRA must be “arms-length” and free from any direct exploitation by the SDIRA owner.

Disqualified Person(s)

An IRA owner may not invest in property that he/she, a relative, or his/her business, already owns. Prohibited transactions are transactions that occur between the SDIRA and disqualified person(s). The following are, generally, considered disqualified persons.

  • The IRA holder
  • The IRA holder’s spouse
  • The IRA holder’s ancestors and lineal descendants
  • Spouses of the IRA holder’s lineal descendants
  • Investment managers and advisors
  • Anyone providing services to the plan (IRA), e.g., the IRA trustee or custodian
  • Any corporation, partnership, trust, or estate in which the IRA holder has a 50% or greater interest

Prohibited Transactions

Understanding what constitutes a prohibited transaction is very important when it comes to making investments within a SDIRA. A prohibited transaction can bring into question the tax-deferred status of the account, resulting in the disqualification of the SDIRA and severe tax and penalties. Prohibited transactions fall into two general categories: Prohibited Investments and Prohibited Transactions. The Internal Revenue Code (IRC) defines a prohibited transaction to include 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 in his own interest or for his own account, or
  • Act by a disqualified person who is a fiduciary whereby he deals with the income or assets of a plan in his own interest 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 income or assets of the plan.

Often, SDIRA custodians communicate to the SDIRA holders that they should consider their SDIRA separately from themselves as individuals. It is important to understand that for purposes of the IRS code you and your SDIRA are separate entities whose interests are not related. Understanding this nuance will reduce the number of potential issues that may arise when you make investments using your SDIRA.

Common Prohibited Transactions

  • Borrowing money from an SDIRA
  • Using the SDIRA as security for a loan
  • Selling personal assets to the SDIRA
  • Buying property in the SDIRA for personal use
  • Purchasing property from a disqualified relative i.e. Spouse, Children, Parents of the SDIRA holder
  • Issuing a mortgage on a disqualified relative’s residence

Penalties

When an IRA is involved in a transaction that is considered ‘prohibited’, the IRA loses its tax-exempt status and the IRA holder is deemed to have received a distribution on the first day of the tax year in which the prohibited transaction occurred. The value of the IRA is treated as if was distributed to the IRA holder and must be included in the IRA holder’s income for that year. Unless the IRA holder has reached age 59½ or is disabled, this distribution is subject to the 10 percent penalty tax on early distributions. These are hefty penalties that can rapidly diminish the benefits of the self-directed IRA.

Conclusion

Individuals who consider making, or have made, alternative asset investments in their SDIRA must be vigilant and responsible for each action they take. Becoming aware of the prohibited transaction and disqualified person rules will help them avoid tax consequences by not tripping over these fundamental rules. Individuals should contact a knowledgeable self-directed IRA custodian, attorney, CPA, or financial advisor, with a track record of working with SDIRA’s, for more details.

Tommy Joe A. Valenzuela is VP of sales and marketing for Trust Administration Service and a division of First Regional Bank. He has 15+ years experience in the financial services industry, implementing marketing strategies to benefit real estate professionals, attorneys and others and speaking at industry conferences on taxable investment strategies, retirement plan investing, etc. Trust administers more than $1.3 billion in assets, including those invested in real estate, tax liens, and private equities.The information in this article is provided for personal, educational and informational purposes only and does not constitute a recommendation or endorsement with respect to any company, security or investment. All investments involve risk, including the possible loss of principal. Individuals should work closely with their accountant, financial advisor, and/or attorney before implementing any significant change to their investment portfolio. All investments in Individual Retirement Accounts administered by Trust Administration Services are self-directed. Accountholders should consult with their financial, tax, accounting, and legal advisors prior to making any investments within their self-directed IRA account.