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Using IRA Money to Buy a Business Can Be Dangerous
(August, 2016)

Business owners may need capital to support growth, and the money in their IRA can be tempting: Nevertheless, the pitfalls can be steep, as illustrated in a recent Tax Court case (Thiessen v. Commissioner, 146 T.C. No. 7 [3/29/16]). Here, the court ruled that because a married couple had entered into prohibited transactions with respect to their IRAs, the assets in the IRAs were deemed to have been distributed, resulting in a huge tax bill.

Describing the transaction

When James Thiessen left a long-held job after declining to relocate, he found a metal fabricating business (call it ABC Co.) for sale. Through a friend who had executed such a transaction and also from a broker, James heard about the use of IRA money to help finance the purchase.

Therefore, James and his wife, Judith, hired tax and legal advisers. Proceeding according to plan, the Thiessens created a new C corporation (call it DEF Co.); James and Judith were DEF's officers and directors. They both also established IRA accounts. Then they rolled a total amount of more than $430,000 from their employer-sponsored retirement accounts into the IRAs.

As the next step, the Thiessens' IRAs purchased all the shares of DEF, the new company they had created; then DEF used the money from the IRAs to buy the assets of ABC. In addition to the IRA money, DEF transferred a $200,000 promissory note to ABC's seller in the purchase. ABC's assets secured the note, which James and Judith personally guaranteed.

The seven year hitch

This all happened in 2003. In 2010, the IRS asserted that the Thiessens' guarantee of the note was a prohibited transaction, which resulted in a deemed distribution of all of the assets in their IRAs. The couple was taxed on the deemed distribution of the over $430,000 they had rolled over into the IRAs, plus a 10% early withdrawal penalty, because James and Judith were "both younger than 59 VE Ongoing tax deferral on the funds distributed was lost, and the Thiessens owed over $180,000 in income tax, according to the IRS. The Tax Court ruled in favor of the IRS, upholding the agency's claim.

Usually, there's a three-year statute of limitation on the time in which the IRS can assess extra income tax. However, there's a six-year window for the IRS in cases where the taxpayer substantially understates income. That was the case here because the Thiessens had not included the deemed distributions from their IRAs in income on their 2003 return. The IRS' 2010 filing came within six years of the date in 2004 when the Thiessens filed their 2003 tax return.

Debt was the downfall

The Tax Court agreed with the IRS that the Thiessens plan failed because they had personally guaranteed the promissory note that DEF transferred in the purchase of ABC's assets. The Tax Court found that the Thiessens' "guaranties of the loan were prohibited transactions and [the Thiessens'] IRAs ceased to qualify as IRAs on account of the guaranties." As a result, all the funds in the IRAs were deemed distributed in a taxable transaction in the year the Thiessens guaranteed the promissory note. This transaction proved to be very costly for the Thiessens. Other pitfalls can arise when IRA money is used to acquire a small business. If you desire to have your IRA own a business, our office may be able to help you put together an arrangement in keeping with the rules against prohibited transactions.



Source: August 2016 AICPA Client Bulletin

 

 

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Larry Ardito CPA, ABV

George Toscano CPA, MST

Roberta McCollum CPA, MBA, MST