IRS Eases Rules for Converting Non-Roth, After-Tax Qualified Plan Savings to a Roth IRA

IRS Notice 2014-54 opens up new Roth IRA planning opportunities for taxpayers who have made after-tax contributions to their employer’s retirement plan.  This issue does not involve 401(k) deferrals, either pre-tax or designated Roth 401(k) contributions, but rather additional after-tax savings that some qualified plans permit.  Taxpayers having after-tax savings in qualified plans have long sought a means of directly rolling over (“trustee to trustee”) the taxable portion of a qualified plan distribution to a traditional IRA and the nontaxable portion (or “basis”) to a Roth IRA.  Previously the IRS announced in Notice 2009-68 that it was not possible to isolate the basis as a separate distribution amount, but that each rollover consisted of a proportionate amount of basis.  Thus, if a taxpayer had $100,000 in his or her 401(k) account to be directly rolled over, and $30,000 of that amount consisted of after-tax (non-Roth) savings, it was not possible to direct only the $30,000 basis tax-free to a Roth IRA.  Instead, $21,000 of the $30,000 rolled over to the Roth IRA would be taxable ($30,000 X $70,000/$100,000).  Taxpayers devised means around this restriction, but it was uncertain whether the strategies would be respected by the IRS, and the strategies were complicated.  The IRS has now responded to taxpayer feedback and has issued this favorable notice.  The notice requires that the taxpayer inform the qualified plan administrator of how to allocate the basis to the rollover IRAs.  The plan administrator is then required to prepare the Form 1099-R’s accordingly.  The new notice is effective beginning in 2015, but it indicates that it is reasonable to rely upon it for distributions made on or after September 18, 2014.  Under Notice 2014-54, the taxpayer in our example would not have any taxable income upon directing the $100,000 rollover distribution as $30,000 of basis to a Roth IRA and as $70,000 of pre-tax amounts to a traditional IRA.

The notice opens up a new tax planning opportunity for individuals who already contribute the maximum permitted to their 401(k).  If the employer retirement plan permits after-tax voluntary employee contributions, then the individual may save additional money in the plan up to the maximum contribution limit of $52,000 for 2014, after taking into account the 401(k) deferrals, employer matching, and other contributions and forfeitures.  Note that so-called “catch-up” contributions (limited to $5,500 in 2014) for those age 50 or older do not count towards the contribution limit.  These additional after-tax contributions are then positioned for a Roth IRA rollover when the employee leaves employment.  This planning opportunity can be viewed as a “back-door” means of contributing to a Roth IRA in the future, and the amounts saved may go well beyond the normal Roth IRA contribution limits.  If your employer 401(k) plan does not permit voluntary employee after-tax contributions, the plan must first be amended.  Depending upon your position in the company and upon the type of qualified plan, there could be non-discrimination testing restrictions on how much can be saved.

Notice 2014-54 does not deal with isolating basis of non-deductible IRA contributions.  Making a Roth IRA conversion of a traditional IRA having tax basis will still be taxable according to the proportionate basis allocation rule.  Therefore, saving after-tax money in a 401(k) plan is a better choice than saving money as a non-deductible IRA contribution when looking forward to a future Roth IRA conversion.

S Corporation Shareholder Loans and Tax Basis

For income tax purposes, the definition of the word “basis” generally means the amount of after-tax investment in an asset.  Basis is a dollar amount that is used in various ways in the tax law, including the following examples:

1.     Basis is subtracted from the selling price of an asset to determine gain or loss.

2.     Basis is the amount that can be depreciated or amortized.

3.     Basis is the tax-free portion of retirement account or annuity distributions.

4.     Basis is the limitation on the amount of tax losses that can be deducted by a partner of a partnership, a member of a limited liability company, or a shareholder of a Subchapter S corporation.  These entities are called “pass-through” entities, meaning that the owner’s allocable share of the entity’s taxable income or loss (as shown on Schedule K-1) is reported on the owner’s income tax return.

Basis generally starts out as the after-tax cost of an asset or investment.  Then adjustments are made to basis depending upon the tax rules that apply.  For example, depreciation deductions reduce the original basis so that a double tax benefit isn’t received when the asset is sold:  once for the depreciation deduction and again in calculating gain or loss if basis isn’t reduced for the depreciation deduction.  When the asset is sold, “adjusted basis” is used in calculating the gain or loss.

For an S corporation shareholder, the original basis in the shares acquired is adjusted upward for allocated income and is adjusted downward for allocated losses and deductions and for distributions.  In addition, a special rule permits a shareholder to increase basis for the amount of loans made by the shareholder to the S corporation.  Unlike for a partnership or an LLC, third-party debt incurred by the S corporation does not increase basis for the shareholder.  Only bona fide shareholder loans to the S corporation create basis.  Loan basis permits the deduction of losses in excess of the shareholder’s basis in the S corporation’s stock.  Loan basis has been a source of controversy between the IRS and taxpayers over the years.  The IRS recently released final regulations governing shareholder loan basis.

The regulations permit loan basis only for bona fide, direct shareholder loans to the S corporation.  Personal guarantees of loans to the corporation made by third parties do not create basis, except when and only to the extent the shareholder actually makes payments under the guarantee.  Taxpayers run into trouble establishing basis when attempting to get around the third party debt limitation on basis if they engage in “circular loans” with a related party or if they do not properly structure “back-to-back” loans with an unrelated third party.  Generally a back-to-back loan will create basis if an independent third party loans money to the shareholder and the shareholder loans that amount to the S corporation in exchange for a promissory note secured with corporate assets.  This promissory note plus collateral of the shareholder is assigned to the third-party lender as security on the loan to the shareholder.  It is critical that the shareholder be directly liable on the third-party loan and not the corporation in order for the back-to-back loan structure to create basis.