Solo 401(k)

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A Solo 401(k), (also known as a Self Employed 401(k) or Individual 401(k)), is a 401(k) qualified retirement plan for Americans that was designed specifically for employers with no full-time employees other than the business owner(s) and their spouse(s). The general 401(k) plan gives employees an incentive to save for retirement by allowing them to designate funds as 401(k) funds and thus not have to pay taxes on them until the employee reaches retirement age. In this plan, both the employee and his/her employer may make contributions to the plan. The Solo 401(k) is unique because it only covers the business owner(s) and their spouse(s), thus, not subjecting the 401(k) plan to the complex ERISA (Employee Retirement Income Security Act of 1974) rules, which sets minimum standards for employer pension plans with non-owner employees. Self-employed workers who qualify for the Solo 401(k) can receive the same tax benefits as in a general 401(k) plan, but without the employer being subject to the complexities of ERISA.

History[edit]

Prior to 2001, self-employed workers were limited to a profit sharing retirement plan that did not include any employee deferral options in contrast to a multiple employer 401(k) Plan. There existed a retirement platform unique to self-employed workers, the SEP IRA and the Keogh Plan, but it lacked many of the benefits of the typical corporate 401(k) platform, such as employee deferral. Congress remedied this situation in 2001 with the passing of the Economic Growth and Tax Relief Reconciliation Act (EGTRRA).[1] Although EGTRRA was primarily known for its tax reductions, it also amended tax law to allow for self-employed individuals to access a 401(k) style retirement platform.[2] This platform became popularly known as the Solo 401(k).

Qualifications[edit]

In order to qualify for a Solo 401(k), an individual must claim some self-employed income. However, he/she does not need to work full-time in a self-employed capacity. A common example of part-time self-employed income is an individual who works for an employer, but also does a little consulting on the side. The consulting income would be considered self-employed income, thereby rendering the individual’s business eligible for adopting a Solo 401(k).[3] A Solo 401(K) Plan can be adopted by any self-employed business, including a sole proprietorship, limited liability company, partnership, C-Corporation, S-Corporation etc.

In addition to being self-employed, the business adopting the Solo 401(k) Plan must also not employ any full-time employees (with the exception of a spouse.) A full-time employee is generally defined as one who works at least 1,000 hours per year for his/her employer.[4]

Types[edit]

The two basic types of Solo 401(k) plans are brokerage based and self-directed, also known as a “checkbook control” Solo 401(k).[5] The type of plan is based on the plan documents.[6] The basic plan documents state and control the operations of the plan and the adoption agreement offers the employer the ability to customize the plan based on the options available in the basic plan. In other words, the options available to an adopting employer and its plan participant(s) would be based on the options available in the basic plan document and plan adoption agreement. A plan sponsor, a company offering the plan to the employer, would typically offer either an individual designed Solo 401(k) Plan or a prototype plan.[7]

Brokerage based plan documents usually limit the available investment options and offer market-based assets, such as stocks and mutual funds, while self-directed plan documents generally offer more investment options and often allow for alternative assets, such as real estate[8] and private business, as well as include a loan feature and Roth deferrals. Investors typically choose between the two plans based on their investment goals, asset preference, fee schedules, and desired level of control.[9]

While a brokerage based Solo 401(k) plan and self-directed Solo 401(k) plan would both be considered a qualified retirement plan, the options available under these plans as per the Plan Adoption Agreement generally differ in a number of ways:

  1. The self-directed Solo 401(k) Plan typically allows for greater investment options than a brokerage based Solo 401(k) Plan, including real estate, precious metals, loans, and private business investments.
  2. Unlike a brokerage Solo 401(k) Plan, a self-directed Solo 401(k) Plan will typically offer a loan feature, which will allow the plan participant to borrow the lessor of $50,000 or 50% of their account value and use the loan for any purpose.
  3. Unlike a brokerage Solo 401K Plan, a self-directed Solo 401(k) Plan contains a built in Roth sub-account which can be contributed to without any income restrictions. In addition, most brokerage Solo 401K Plans do not allow for the conversion of a traditional 401(k) or 403(b) account to a Roth subaccount.
  4. The self-directed Solo 401(k) Plan will allow the adopting employer to open the plan account at most local banks in order to obtain check writing ability as well as have a brokerage account.

Contribution Limits[edit]

The contribution limits for the Solo 401(k) are the same as a standard 401(k). They are broken down into a profit sharing contribution which comes from the employer, and a salary deferral contribution which comes from the employee.[10] However, due to the fact that in a Solo 401(k) the plan holder is acting both as employer and employee, the actual percentages assume a more meaningful role. If the plan holder is filing as a Sole Proprietor or Single Member LLC (which is true in most cases), then the limit is capped at 20% of the self-employed income plus $17,500. Internal Revenue Code Section 401(a)(3) states that the amount of employer contributions is limited to 25 percent of the entity’s income subject to self-employment tax. Schedule C sole-proprietors must do an added calculation starting with earned income to determine their maximum contribution, which, in effect, brings the maximum 25% of compensation limit down to 20% of earned income. A step-by-step worksheet for this calculation can be found in IRS Publication 560.[11] If the plan holder is 50 years or older, then he/she may contribute an additional $5,500 on top of the standard contribution. This additional contribution is often referred to as a catch-up contribution. Note this additional catch-up contribution does not apply to the SEP IRA. Calculating ones maximum annual solo 401(k) contribution limitation.,[12] including employee deferrals and profit sharing contributions, is generally based off the amount of self-employment income or W-2 income earned by the plan participant and the adopting employer’s established legal entity (sole proprietorship vs. “C” corporation).

In both cases, the IRS has declared an upper limit for contributions which may not be exceeded. As of 2014, this upper limit is $52,000 for those under 50, and $57,500 for those 50 and older.[13] This upper contribution limit applies to the individual plan participant and it includes amounts contributed to all 401(k) qualified retirement plan the individual participates in.

Tax Implications[edit]

The Solo 401(k) is an IRS Qualified Retirement Plan which means that it shares the same tax benefits as other QRPs. A qualified retirement plan is a plan that meets requirements of the Internal Revenue Code and as a result, is eligible to receive certain tax benefits. For a Traditional Solo 401(k), the income contributed into the plan is tax deferred. The concept of tax deferral is premised on the notion that that all income and gains generated by the pre-tax retirement account investment would generally flow back into the retirement account tax-free. Instead of paying tax on the returns of a self-directed IRA investment, such as real estate, tax is paid only at a later date, leaving the investment to grow unhindered. For example, if an IRA investor invested $100,000 into a Self-Directed IRA LLC in 2012 and the account earns $10,000 in 2012, the investor would not owe tax on that $10,000 in 2012. Instead, the self-directed IRA investor would be required to pay the taxes when he or she withdraws the money from the IRA, which could be many years later. For example purposes, assuming the IRA investor mentioned above is in a 33% federal income tax bracket, she would have had to pay $3,333 in federal income taxes on the $10,000 earned on the IRA in 2012. That would have left $6,667 in the account. At an 8% annual return, those earnings would go on to produce $533.36 in 2013. However, because IRAs are tax deferred, the self-directed IRA investor is able to earn a return on the full $10,000 rather than the $533.36 she would have had if she had to pay taxes that year. At a 8% annual return, she'd earn $800 in 2013. The beauty of tax deferral is that the deferral compounds each year. Tax deferred investments though a self-directed IRA LLC generally help investors generate higher returns. That's because the money that would normally be used for tax payments is instead allowed to remain in the account and earn a return.

Tax responsibility doesn't start until retirement age as the plan holder begins to take out Required Minimum Distributions (RMDs). The tax bracket is determined at the time that the distributions are taken. For a Roth Solo 401(k), the funds go in as post-tax dollars and thus are no longer subject to taxation,[14] assuming the distribution would be treated as a qualified distribution. For a distribution to be qualified, it must occur at least five years after the Roth Solo 401(k) Plan participant established and funded his/her first Roth 401(k) plan account, and the distribution must occur under at least one of the following conditions:

If a plan holder is using his/her Solo 401(k) funds to invest in an active business held through a passthrough entity, such as a limited liabilited company or partnership, then there is the possibility of Unrelated Business Income Tax (UBIT or UBTI).[15] This is a tax that is levied on tax exempt entities, such as a charity, IRA, or 401(k) Plan, that have invested in an active trade or business unrelated to its exempt purpose. The net profits allocated to the tax-exempt entity from the active trade or business held through a passthrough entity are subject to UBIT on a yearly basis from the business are subject to UBIT on a yearly basis. The UBTI is reported on the IRS Form 990-T. Most investments entered into by retirement plans, however, are not considered active businesses, and therefore are not subject to UBIT.

The tax forms that apply to a Solo 401(k) can vary according to the assets and size of the plan. Here is a listing of the most common:[16]

Differences between a Solo 401(k) and a SEP IRA[edit]

Although both the Solo 401(k) and SEP IRA function as a retirement vehicle for self-employed individuals, the Solo 401(k) offers a number of features not found in the SEP.[17]

  1. It is easier to contribute the maximum amount in a Solo 401(k) because of the Salary Deferral component of $17,500, which is not available with a SEP IRA.
  2. A Solo 401(k) Plan includes a $5500 catch-up contribution for plan participant’s over the age of 50, which is not the case for a SEP IRA.
  3. Unlike an IRA[disambiguation needed], a special custodian is not required to be used. Most Solo 401(k) Plans can be structured as trustee directed plans, hence, the 401(k) plan account can generally be opened at any local bank and most financial institutions. Because this allows for faster and more economical transactions.
  4. The Solo 401(k) allows for a personal loan[18] up to $50,000 or 50% account of the plan participant’s account value, whatever is less.
  5. The Solo 401(k) is not required to pay UDFI on leveraged real estate, assuming the loan satisfied the rules under Internal Revenue Code Section 514.
  6. Prohibited Transactions can be fixed in a Solo 401(k), while in a SEP IRA a Prohibited Transaction will often lead to the liquidation of the plan.

References[edit]

  1. ^ http://www.gpo.gov/fdsys/pkg/PLAW-107publ16/html/PLAW-107publ16.htm
  2. ^ http://www.journalofaccountancy.com/Issues/2003/Mar/TheSingleParticipant401K.htm
  3. ^ http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Business-Activities
  4. ^ http://www.law.cornell.edu/uscode/text/26/410
  5. ^ http://www.irs.gov/Retirement-Plans/Plan-Participant,-Employee/Retirement-Topics---Participant-Directed-Accounts
  6. ^ Bergman, Adam. "Plan Documents". Adam Bergman, Esq. Retrieved 3 July 2013. 
  7. ^ Bergman, Adam. "Prototype Plan". Adam Bergman, Esq. Retrieved 3 July 2013. 
  8. ^ Bergman, Adam. "Real Estate". Adam Bergman, Esq. Retrieved 3 July 2013. 
  9. ^ http://www.broadfinancial.com/solo-401k/what-is-a-solo-401k
  10. ^ http://www.irs.gov/Retirement-Plans/Plan-Participant,-Employee/Retirement-Topics---401(k)-and-Profit-Sharing-Plan-Contribution-Limits
  11. ^ Bergman, Adam. "Solo 401(k) Law". Adam Bergman, Esq. Retrieved 10 May 2013. 
  12. ^ Bergman, Adam. "Solo 401(k) Contribution Limits". Adam Bergman, Esq. Retrieved 21 May 2013. 
  13. ^ http://www.shrm.org/hrdisciplines/benefits/articles/pages/2013-irs-401k-contribution-limits.aspx
  14. ^ Nolan, Mark. "New Roth Solo 401k Conversion Rules for 2013 | American Taxpayer Relief Act of 2012 – In-plan conversion". Solo401k. MySolo401k. 
  15. ^ http://www.irs.gov/Charities-&-Non-Profits/Unrelated-Business-Income-Tax
  16. ^ http://www.dol.gov/ebsa/publications/401kplans.html
  17. ^ http://www.retirementchoices.org/Individual_401k.html
  18. ^ Bergman, Adam. "Personal Loan". Adam Bergman, Esq. Retrieved 3 July 2013. 

See also[edit]