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529 plans are named after section 529 of the Internal Revenue Code 26 U.S.C. § 529. While most plans allow investors from out of state, there can be significant state tax advantages and other benefits, such as matching grant and scholarship opportunities, protection from creditors and exemption from state financial aid calculations for investors who invest in 529 plans in their state of residence.
There are two types of 529 plans, prepaid plans and savings plans.
Virginia529 College Savings Plan is by far the largest of the 529 plans. As of October 2013, Virginia529 was actively managing over $43 billion in total assets and had over 2.2 million active accounts.
With the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), 529 plans gained their current prominence and tax advantages. Qualified distributions from 529 plans for qualified higher education expenses are exempt from federal income tax.
Legislation introduced in the U.S. House of Representatives in 2011 by Congresswoman Lynn Jenkins, (R-KS) and Congressman Ron Kind, (D-WI) that would include 529 plan contributions in the SAVERs tax credit, make permanent the inclusion of computers as a qualified expense, provide for four annual investment direction changes and provide employers with an incentive to contribute to the 529 plans of their employees.
529 college savings plan originated from states rather than the federal government. With tuition cost increasing year by year, the state-run prepaid tuition program of Michigan addressed the increasing anxiety on the part of many thousands of Michigan households with the Michigan Education Trust (MET) proposition. This created a fund to which the state's residents could pay a fixed amount in exchange for a promise that this state Trust would pay future tuition for a named beneficiary at any Michigan public college or university.
This provided an opportunity to prepay future tuition, which would not to be affected by future tuition increases. The initiative sparked interest in other states, which launched their first prepaid tuition program.
Michigan delayed its own launch so that a ruling could be requested from the Internal Revenue Service (IRS) regarding the tax aspect of arrangement. The IRS allowed purchasers of the "prepaid tuition contract" to not be taxed on the accruing value of the contract until the year in which funds were distributed or refunded. Additionally, the trust fund established by the state of Michigan was required to receive prepayments and be subject to income tax on earnings from the invested funds.
The Michigan Education Trust (MET) entered into prepaid tuition contracts with Michigan’s residents. An estimated 55,000 individuals signed up for the program. (MET) paid federal income tax on its investment earnings, and in 1990 filed suit for refund from the IRS. The case was first decided in favor of the IRS, but on appeal in 1994 the Sixth Circuit Court of Appeals reversed the district court judge’s decision and found in Michigan favor.
At one point (MET) sold prepaid tuition contracts that were below market value, and the program had to be adjusted with appropriate pricing. Today it remains as one of the largest and most successful pre-paid programs.
Subsequently, Congress has passed new legislation authorizing qualified state tuition programs. This is now part of the small Business Job Protection Act of 1996. Section 529 was added to the Internal Revenue Code, conferring tax exemption to qualifying state programs and deferring tax on participant’s undistributed earnings.
Section 529 advanced to the Clinton administrations agenda and became part of Taxpayer Relief Act of 1997 (TRA). The (TRA) made changes such in deduction on student loans, penalty-free IRA withdrawals for higher education, and adding room and board to the list of qualifying expenses.
Another provision was added to the bill to make Section 529 distributions tax-free, not just tax deferred when used for college. Bill Clinton vetoed this provision.
In 2001, when George W. Bush was president, new tax bills were crafted in both the Senate and the House of Representatives containing the previously vetoed changes.
With strong bipartisan support, the Economic Growth and Tax Relief Reconciliation Act (EGTRRA) of 2001 was signed into law on June 7, 2001.
Due to federal budget constraints, (EGTRRA) stated that every tax provision within the new law would expire on December 31, 2010. Congressional leaders decided to insert a provision in the Pension Protection Act of 2006 (PPA) that would make all (EGTRRA) charges to Section 529 permanent, including tax-free treatment for qualified distributions.
Changes to the structure and marketing of 529 plans over the years have contributed to their growth. The states partnered up with the professional investment community, which allowed them to offer 529 plans with the feel of mutual funds. Also, registered brokers and investment advisors can directly assist families in understanding 529 plans and selecting an appropriate investment.
Other changes that have resulted in a growth in adoption include: federal legislation regarding taxes, financial aid, asset protection; on-going program improvement; lowering of expenses; generous state incentives; positive media coverage; and college savings registries that allow people sign up for the program.
Money from a 529 plan can be used for tuition, fees, books, supplies and equipment required for study at any accredited college, university or vocational school in the United States and at some foreign universities.
The money can also be used for room and board, as long as the fund beneficiary is at least a half-time student. Off-campus housing costs are covered up to the allowance for room and board that the college includes in its cost of attendance for federal financial-aid purposes.
Qualified education expenses do not include student loans and student loan interest.
A distribution from a 529 plan that is not used for the above qualified educational expenses is subject to income tax and an additional 10% early-distribution penalty on the gains portion only unless one of the following conditions is satisfied:
There are many advantages to the 529 plan:
First, although contributions are not deductible from the donor's federal income tax liability, many states provide state income tax deductions for all or part of the contributions of the donor. Beyond the potential state income tax deduction possibilities, a prime benefit of the 529 plan is that the principal grows tax-deferred and distributions for the beneficiary's college costs are exempt from tax.
Second, the donor maintains control of the account. With few exceptions, the named beneficiary has no rights to the funds. Most plans even allow you to reclaim the funds for yourself any time you desire, no questions asked. However, if a "non-qualified" withdrawal is made, the earnings portion will be subject to income tax and an additional 10% penalty tax.
Third, a 529 plan can provide a very easy hands-off way to save for college. Once one decides which 529 plan to use, one completes a simple enrollment form and makes a contribution (or signs up for automatic deposits). The ongoing investment of the account is handled by the plan, not by the donor. Plan assets are professionally managed either by the state treasurer's office or by an outside investment company hired as the program manager. The donor will not receive a Form 1099 to report taxable or nontaxable earnings until the year of the withdrawals. If an investment switch is desired, donors may change to a different option in a 529 savings program every year (program permitting) or the account may be rolled over to a different state's program provided no such rollover for the beneficiary has occurred in the prior 12 months. 529 plans generally have very low minimum start-up and contribution requirements. The fees, compared with other investment vehicles, are low, although this depends on the state administering the plan. Finally, everyone is eligible to take advantage of a 529 plan, and the amounts that can be put in are substantial (over $300,000 per beneficiary in many state plans). Generally, there are no income limitations or age restrictions.
A final rather unusual advantage of the assets in a 529 plan is that although they can be reclaimed by the donor (subject to income tax and the 10% additional penalty on any gains) the assets are not counted as part of the donor's gross estate for estate tax purposes. Thus 529 plans can be used as an estate planning tool to move assets outside of one's estate while still retaining some measure of control if the money is needed in the future. A beneficiary must be designated and the income tax savings are still only obtained if the money is eventually spent for education, though in some cases estate taxes can be reduced without spending the money on education.
In addition, under the College Cost Reduction and Access Act of 2007, 529 college savings plans and prepaid tuition plans are now treated as an asset of the account owner (typically the parent), meaning they have little impact on a student’s eligibility for financial aid.
Another benefit associated with 529 Plans is the ability to transfer unused amounts to other qualified members of the beneficiary's family without incurring any tax penalty. According to the IRS website (Publication 970), this type of transfer is known as a Rollover and is explained at length in their Qualified Tuition Program (QTP) section. Any amount paid to another QTP within 60 days of distribution is considered Rolled Over & does not require reporting anywhere on Form 1040 or 1040NR.
Qualified members of the beneficiary's family include the beneficiary's:
While the number and types of 529 plans is growing, not all investment vehicles are available in 529 form.
Unlike other types of tax-deferred plans, such as 401(k) plans, IRS rules allow only a single exchange or reallocation of assets per year in a 529 plan.
The earnings portion of money withdrawn from a 529 plan that is not spent on eligible college expenses will be subject to income tax, an additional 10% federal tax penalty, and the possibility of a recapture of any state tax deductions or credits taken. For example, if you contribute $50,000 into a 529 plan and it grows to $60,000 over time and you make an unqualified withdrawal for the entire amount, you are taxed on the $10,000 gain plus a 10% penalty on the $10,000 which would be $1,000 penalty.
Paying tuition directly from a 529 account may reduce a student's eligibility for need-based financial aid.
In certain circumstances where a 529 account has experienced investment losses over the term of its existence, the contributor to the account may withdraw the funds and have the losses deducted from taxable income (but not counted as such for Alternative Minimum Tax purposes).
Contributions to 529 plans are considered gifts under the federal gift tax regulations and hence any contributions in excess of $14,000 if filing single (or $70,000 over five years) or $28,000 if filing married jointly (or $140,000 over a five-year period) count against the one-time gift/estate tax exemption. The five-year period is known as the five-year carry-forward option: Once the single donor puts in $70,000 or the married jointly donor puts in $140,000, they are not able to make another contribution (gift) to that individual (without using part of their lifetime gifting exclusion) for five years.
Since tuition payments are not subject to the annual gift limitation, parents who are trying to minimize estate taxes may be better off making their annual gifts to another vehicle such as a Uniform Transfers to Minors Act (UTMA) account and then paying the tuition directly.