Self-Directed IRAs Empowering Individuals to Unlock Their Portfolio Options

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1 Self-Directed IRAs Empowering Individuals to Unlock Their Portfolio Options This Research Document is provided by Provident Trust Group LLC, a Self-Directed IRA custodian and administrator located in Las Vegas, Nevada.

2 Every day thousands of Americans are turning to Self-Directed IRAs so they can take control of their financial future. With a Self-Directed IRA you are able to create a diversified investment portfolio to specifically match your goals, desires, and comfort zone. -Theresa Fette CEO, Provident Trust Group 2

3 Table of Contents Disclosure A History of Wealth Accumulation Factors Potentially Influencing IRA Market Growth Why are IRA Rollovers Important? Many Investors Are Confused about the Value of Their IRA IRA Owners Need Options Today Self-Directed IRAs Becoming Increasingly Popular Why Consider Self-Directed IRAs An Efficient Alternative May Be the Self-Directed IRA What is a Self-Directed IRA? The Self-Directed IRA Alternative New Legislation or the Best Kept Secret? Necessity of a Trustee or Custodian Possible Problems IRA & Retirement Plan Owners Face Your Self-Directed IRA Team Self-Directed IRA Guideline Summary The Self-Directed IRA Process Unrelated Business Taxable Income (UBTI) Hypothetical Self-Directed Investment Scenario 1 Hypothetical Self-Directed Investment Scenario 2 Hypothetical Self-Directed Investment Scenario 3 Hypothetical Self-Directed Investment Scenario 4 Self-Directed IRA Practices to Avoid Self-Directed IRA Rules & Restrictions IRA Rules & IRS Publication 590 Section 1 - IRA Rules & IRS Publication 590 Section 2 - IRA Rules & IRS Publication 590 Section 3 - IRA Rules & IRS Publication 590 Section 4 - IRA Rules & IRS Publication 590 Section 5 - IRA Rules & IRS Publication 590 Section 6 - IRA Rules & IRS Publication 590 Section 7 - IRA Rules & IRS Publication 590 Section 8 - IRA Rules & IRS Publication 590 Section 9 - IRA Rules & IRS Publication 590 Section 10 - IRA Rules & IRS Publication 590 Common Questions about Self-Directed IRAs

4 Disclosure All of the information in this document is provided and intended to be used for general educational and informational purposes only and is not intended as a solicitation for you to buy or sell securities. Nothing contained in this report shall be construed or interpreted by any party as a commitment or intent to purchase or sell any products or services; to initiate discussions; or to engage in any business relationship, contract, or future dealing with the other party. Hypothetical return rates used in the examples are used to help explain the educational concepts more thoroughly, and for illustrative purposes only and are not guaranteed; past performance is not a guarantee of future results. Net return rates used in all examples represent an estimation of performance results after deduction for all investment fees and expenses. None of the material in this report is intended to give you specific tax, investment, real estate, legal, estate, or financial advice, but rather to serve as an educational platform to deliver information; nor is it intended to show you how the strategies presented can specifically apply to your own tax, investment, estate, or financial position, but rather to offer an idea of how these principles generally may apply. This data is furnished with the understanding that the authors and publishers are not engaged in rendering legal, real estate, accounting, estate, investment, tax, financial, or other professional advice or services. Before taking any steps to invest funds through a Self-Directed IRA, or any other method, you should seek the advice of a qualified tax professional or financial planning advisor regarding your own financial situation. Investing your retirement funds through a Self- Directed IRA carries some of the same potential risks and benefits associated with investing your funds outside a Self-Directed IRA, with additional Self- Directed IRA specific risks. There is no guarantee that Self-Directed IRA net income will flow to an investor as originally projected, and there is no guarantee that a Self-Directed IRA account will appreciate in value, or depreciate in value for that matter. Self-Directed IRA investments may include illiquid assets where there is currently no established secondary market. If a Self-Directed IRA is funded with standard IRA assets (non-roth IRA assets), distributions will usually be taxable. If a Self-Directed IRA does perform successfully, with growth of assets, it is very important to understand that the growth will most likely be subjected to taxation at ordinary income tax rates. So while it is true that assets in the Self- Directed IRA can grow on a tax-deferred basis, taxation occurs upon distribution to the IRA owner or his/her beneficiaries. It is also important to understand that the value of any IRA, including a Self-Directed IRA, can potentially be included in the taxable estate value of an individual. This could potentially subject the IRA value to estate taxes in addition to income taxes. Investing in certain assets inside an IRA can create an additional tax from Unrelated Business Taxable Income (UBTI). UBTI is a very complex subject and should be discussed thoroughly with your tax and legal Advisors. Self-Directed IRAs are not appropriate for all individuals or all situations. For an individual who wants to invest all their IRA funds in a traditional manner such as a bank account, mutual fund, or annuity, the flexibility of a Self-Directed IRA will probably not provide much benefit. Please review the section of this report titled IRA Rules, Regulations, Restrictions, & Recommendations for an introduction to IRS requirements. 4

5 Introduction to Individual Retirement Accounts (IRA) A History of Wealth Accumulation For more than 35 years, Individual Retirement Accounts, IRAs, have provided Americans the opportunity to accumulate and manage their retirement wealth in a tax-deferred environment. IRAs can be funded with contributions from an investor or can be established with a rollover from another retirement plan. There are different classes of IRAs such as a Traditional IRA, a Roth IRA, and SIMPLE IRA. IRAs were created with the enactment of the Employee Retirement Income Security Act (ERISA) in IRAs were originally conceived as accounts Americans could voluntarily contribute funds to, on an annual basis. Investors collectively held 4.87 trillion in IRA accounts in 2011, compared to 3.88 trillion in private-sector defined contribution plans like 401(k)s, according to Federal Reserve data. Congress wanted Americans to increase their annual savings for retirement. IRAs are also able to accept rollovers from qualified retirement plans such as Keogh, 401k, 457, and 403(b) accounts. Rollover IRAs traditionally make up the largest dollar volume of IRA accounts simply because qualified retirement plans have typically allowed higher annual contributions than traditional IRAs. On 9/23/08 the Employee Benefit Research Institute reported there was approximately 4.75 trillion in IRAs. The value of IRA accounts is truly amazing when compared to the value of all Defined Benefit Plans (2.3 trillion), and the value of all Defined Contribution Plans (3.49 trillion), also reported by the Employee Benefit Research Institute on 9/23/08. For more information visit 5

6 Factors Potentially Influencing IRA Market Growth The major factor that continues to drive the asset growth of IRAs is rollovers from other qualified plans, as opposed to new contributions. As more workers are participating in defined contribution plans, typically 401(k) plans which are in defined benefit plans that allow a lump-sum distribution, an increasing number of them are faced with making decisions about what to do with the assets they have earned in these plans when they voluntarily change jobs, are laid off, or retire. After leaving employment, a worker with a retirement plan balance that is eligible for IRA rollover, typically has three choices for his or her retirement account: 1. Leave the money in the current plan. Some employers require that retirement account balances be transferred from the employer plan within a certain time period. Other plans allow an employee to leave the funds in the employer sponsored retirement plan indefinitely. This option will usually not cause any taxation to the employee. For additional information on IRAs please see the section of this report titled IRA Rules, Regulations, Restrictions, & Recommendations. In addition, please discuss your options with your tax, legal, and financial advisors. 2. Cash it out. This simply means to receive the retirement plan balance as a taxable and possibly penalized transaction. This option will allow an employee to do anything they want with the proceeds but will typically come at a very high price. In most cases the distribution will be fully taxable for federal and state income taxes, as well as subject to a 10% federal penalty and any applicable state penalties. We have seen taxes and penalties amount up to almost 50% of the retirement plan distribution. Typically, Financial and Tax Advisors will recommend that investors do everything possible to NOT cash out their retirement plan. 3. Roll it over. Funds can be rolled over to another tax-qualified savings vehicle such as an IRA or another employment-based plan. This simply means that an employee with an employer sponsored retirement plan can transfer the retirement account balance to an IRA or other retirement plan of their choice. This option will also usually not cause any taxation to the employee. An employee can roll their funds into a standard IRA or can choose to utilize the Self-Directed IRA structure for maximum investment flexibility. 6

7 Why are IRA Rollovers Important? IRA rollover accounts are important for a number of reasons including the sheer size of the accumulated values of these accounts. Total IRA Assets* (in Trillions) An estimated 324 billion was moved out of 401(k)s and into Individual Retirement Accounts in 2013, and that s expected to grow to 500 billion by 2019 as that retirement wave intensifies, according to Cerulli Associates, a Boston-based research firm. Sources: Investment Company Institute, Federal Reserve Board, National Association of Government Defined Contribution Administrators, American Council of Life Insurers, and Internal Revenue Service Statistics of Income Division * Amounts are approximate Secondly, it gives the individual account holder the option to manage and take control of his/her retirement portfolio and destiny. Where can IRA rollover assets come from? Typically funds for an IRA rollover account come from a qualified employer retirement plan or an IRA an individual had previously established for himself/herself. Here are a few potential examples: Transfer from previous employer 401(k) plan at employment termination or retirement In-service distribution and subsequent transfer from an employer 401(k) plan Transfer from a defined benefit (DB) or profit sharing plan Rollover from existing IRA accounts Transfer from an Individual 401(k) account Transfer from a 403(b) account Transfer from a 457 account Transfer from a SEP IRA account Transfer from another eligible account If you have any of the above named retirement plans, or have any other retirement accounts, please check with your tax, financial, and legal advisors as to the opportunity for you to transfer these funds at the appropriate time to an IRA rollover account. 7

8 Many Investors Are Confused About the Value of Their IRA We feel that one of the most important things you can do to manage your IRA efficiently and with potential for success is to have as much flexibility and as many investment options as possible. The fragile world economies, the volatile real estate market, combined with the major credit crunch and severe losses in global stock markets, have created complex planning issues for almost anyone who owns an IRA. Retirement plan losses have been staggering. As reported by the Associated Press via MSNBC, 10/7/2008, American retirement plans have lost more than 2 trillion. Over the last few years, we have talked with many IRA owners who have lost between 20 60%, and even more in their IRA values. With the weakening Social Security system, the elimination of the standard pension type plan by many employers, many Americans are depending on their IRA accounts to provide them with the funds they will need to retire comfortably. One of the big problems facing Baby Boomers is that they are getting older, with many either in retirement or approaching retirement. Baby Boomers will most likely be the Americans most affected by the recent financial market turmoil because they do not have time on their side. In most financial matters, asset ownership, especially in troubling times, creates more planning challenges, and IRA investing is no different. Because many people have accumulated a significant net worth in their IRA, evaluation, education, constant review, and decision-making are important to help nurture and protect such wealth. We feel that one of the most important things you can do to manage your IRA efficiently and with potential for success is to have as much flexibility and as many investment options as possible. 8

9 IRA Owners Need Options Today Many people saving for retirement have used a standard IRA structure to hold and invest their funds for the future, but today, IRA owners need alternatives to the Standard IRA and traditional investments Based on the magnitude of the recent financial crisis, we have found that many IRA owners may be: Reluctant to modify their current IRA portfolio. Feeling that traditional investments are the only investments available for their IRA. Resistant to IRA investment options they see as the same old ideas. Unwilling to face the fact that their IRA account has substantially decreased in value. Afraid to even look at their IRA account statements. Unaware of the IRA investment opportunities the current financial climate provides. It is for this purpose, and the fact that there is little formal Self-Directed IRA guidance to rely upon, that IRA owners should seek the advice and counsel of trusted professionals. What all the above statements point to is hesitancy by many IRA owners to do anything with their IRA accounts. This hesitancy may cause some IRA owners to overlook potential opportunities that could allow them to resurrect their IRAs that they have left for dead. The vast majority of IRA and retirement plan owners have lost money in their accounts over the last 18 months. We feel it is certainly not the time to do nothing and assume everything will be fine with the accounts. Simply by letting their accounts sit idle and not paying any attention to the decreased values does not necessarily provide the potential for long-term desired results. Actions may be required to, both, protect and grow IRA and other retirement plan values. 9

10 Self-Directed IRAs Becoming Increasingly Popular A Self-Directed IRA is a Standard IRA that is administered by a custodian that allows complete flexibility under Internal Revenue Service rules in regards to your IRA investments. All IRAs are governed primarily by Internal Revenue Code Section 408, and secondarily by other various code sections. Characteristics of a typical Self-Directed IRA: Account is established with a Self-Directed IRA custodian. Potential for IRA growth. Opportunity to feel more comfortable investing in what investors are familiar with. Opportunity for a diversified investment menu. Proprietary investment products and platforms are not mandatory. Not limited to traditional investments. Premature distribution, with income taxes or penalties, not necessary to invest in preferred assets. Certain assets can create unrelated business taxable income and associated tax. Tax-deferred asset growth continues until distribution. Opportunity to reposition current assets to take advantage of current financial markets. IRA funds can be invested to help balance out investment losses outside their IRA and/or retirement plan. Additional fees will be levied. IRA assets can be invested to potentially meet financial goals such as increasing net income. Create a truly diversified portfolio with assets not correlated to traditional investments. The diversified investment menu may include, but is not limited to: Real Estate Investment Trusts (REITs) both public and private Private Placement investments & Direct investments: Real estate, oil & gas, leasing, mortgages, notes,& deeds of trust, tax liens and tax deeds, loans and notes, equipment leasing, Delaware Statutory Trusts (DST), businesses and franchises, private and publicly listed stock, Limited Liability Companies (LLCs), Limited Partnerships (LPs), individually owned or jointly owned real estate, foreclosures, short sales, residential, single family, multi-family, commercial, developed, undeveloped raw land, and options on real estate. Self-Directed IRAs can potentially provide solutions for an IRA investor to solve some of the problems they face in retirement or as they are approaching retirement. The real key is allowing you to invest in what you want, when you want, how you want, and where you want. 10

11 Why Consider Self-Directed IRAs Self-Directed IRAs could provide potential benefits for IRA owners who want to take control of their retirement savings or who desire complete flexibility with their IRA investments. As previously discussed, many Americans have recently lost a large percentage of their IRA values. And with these large losses, comes a considerable amount of uncertainty. Many IRA investors want to explore their investment options beyond what has long been thought of as the traditional IRA investments. A Self-Directed IRA account can potentially provide an IRA owner and his/ her family with a number of possible advantages: Income is Tax-Deferred The income of an IRA account that is established correctly, managed correctly, and does not violate IRS guidelines, is allowed to grow taxdeferred. For example, the interest on a note secured by real estate could potentially grow tax-deferred in a Self-Directed IRA account. Appreciation/Growth is Tax Deferred The appreciation/growth of an IRA account that is established correctly, managed correctly, and does not violate IRS guidelines, is allowed to grow tax-deferred. For example, the increase in value of real estate could potentially grow tax-deferred in a Self-Directed IRA account. Notwithstanding these features, it is imperative to understand that investing funds through a Self-Directed IRA carries many of the same risks as investing in assets outside the IRA. There are a number of related risks and regulations that must be considered prior to investing. These investment risks are set forth in the IRA Rules, Regulations, Restrictions, & Recommendations section of this report. Gain on Asset Sales are Tax-Deferred The gain on the sale of an asset in an IRA account that is established correctly, managed correctly, and does not violate IRS guidelines, is taxdeferred. For example, the gain on the sale of a commercial real estate property could potentially grow tax-deferred in a Self-Directed IRA account. Allows for Direct Real Estate Ownership Investment real estate is a viable option including residential rentals, commercial, industrial, retail, land, etc. Having access to IRA balances to purchase investment real estate potentially provides an opportunity for growth and diversification. 11

12 Why Consider Self-Directed IRAs (Continued) Opportunity for Investors to Feel Comfortable Investing in what they know Investors tend to gravitate to what they like, have done in the past, and have been successful with. If an investor has accumulated their wealth through investing in small businesses, they will tend to feel comfortable with this type of investment. On the other hand, if an investor has made money investing in first mortgages, they will typically tend to feel comfortable with lending money based on a secured note. A Self-Directed IRA allows IRA owners to invest in what they feel most comfortable with. Almost Unlimited Investment Option Menu With a few specific limitations, an IRA owner has a virtually limitless number of investments he/she can choose. As long as the specific investment is not prohibited, and as long as the IRA account has proper administration, complete flexibility is available. Not Limited to Traditional Investments Some investors believe that all they can invest their IRA funds in are traditional investments. While it is true that traditional investments can be included in a Self-Directed IRA account, many other types of alternative assets are also allowed. Alternative investments allow account owners to maximize investment returns by investing in areas of expertise and private assets. As with all IRA investments, taxes on investment returns are deferred until funds are withdrawn from the account. No Need to Withdraw IRA/Retirement Funds for Investment Flexibility Many IRA and retirement plan owners have taken taxable distributions from their IRA and/or retirement accounts to invest in non-traditional assets. Many of these distributions were subjected to penalties as well. In is conceivable that up to 50% of the IRA and/or retirement accounts could be lost to income taxes and penalties in a premature distribution. A Self-Directed IRA account can help to reduce, and in some cases possibly eliminate, the taxes and penalties associated with a premature distribution by eliminating the need to take such a distribution. The Opportunity to Time Your Income Tax Bill All IRAs, other than Roth IRAs, are subjected to income taxation when funds are distributed. Funds in an IRA are allowed to grow tax-deferred until mandatory distribution age, usually April 1 st of the year following the year the IRA owner turns age 70 ½. An IRA owner can take out as much as he/she wants from the IRA from age 59 ½, and can take distributions at any age if specific and very strict rules are followed. Based on this data, an IRA owner can take funds from his/her IRA in the years when taxable income from other sources is low. 12

13 Why Consider Self-Directed IRAs (Continued) Reduction of Management It is possible to have the assets in the IRA, such as real estate, managed by a professional team with experience and acceptable track records in all phases of owning, managing and operating. Timing The purchase of a Beneficial Ownership Interest of a DST real-estate investment can potentially take place within days of identification by eliminating the purchase negotiation process, the loan origination process, and appraisal work. A DST investment can be reserved for a period after the end of the 45-day identification period; and thus the potential for paying capital gains tax due to a collapsed deal is decreased. Please also note that consideration of all alternatives and options are needed to make a sound and informed decision regarding any investment. Diversification and Risk Reduction Assets can be obtained in the Self-Directed IRA to help diversify the entire net-worth of an IRA owner. According to Jason Helquist, MA, LL.M, and President of Provident Trust Group: An additional potential characteristic of a Self-Directed IRA, and all other IRAs, is that for federal purposes, IRA assets of an IRA owner who files Chapter 7 bankruptcy might be protected in bankruptcy. The current rules, established in 2005, can protect IRA values up to 1 million. Rollover IRAs may benefit from an unlimited protection amount. Individual states may treat each bankruptcy and situation differently. If you plan to file bankruptcy, or find yourself in the middle of filing bankruptcy, it is vitally important that you consult with tax, legal, and financial professionals who are very knowledgeable in the treatment of IRAs in bankruptcy proceedings for both federal and state purposes. 13

14 An Efficient Alternative May be the Self-Directed IRA What is a Self-Directed IRA? While a Self-Directed IRA sounds new and different, it is just like a basic IRA. The difference is that a Self- Directed IRA allows you, as the owner, to decide that you want as much control over, and flexibility with, your IRA investments as permitted by law. We will say it again: A Self-Directed IRA gives you tremendous control over, and almost unlimited investment flexibility with your IRA investments. For educational purposes, and to make our explanation easier to understand, we are calling the typical type of IRA that utilizes a traditional investment platform a Standard IRA. A Self-Directed IRA, just like a Standard IRA, is governed, for the most part, by Internal Revenue Code Section 408. Tax law does not differentiate between what we are calling a Standard IRA and a Self-Directed IRA. When it comes to making decisions regarding an IRA, it can be a daunting task to make these types of difficult decisions by yourself. You should always consult a team of professionals working for your benefit. The same exact rules apply regarding funding, investments, distributions, transfers, rollovers, distributions, taxation, beneficiaries, penalties, required mandatory distributions, and basically all other rules and laws. Here are the differences: The difference between what we are calling a Standard IRA and a Self- Directed IRA lies simply in the Custodian you choose to handle the administration of your IRA account. A Standard IRA limits your IRA investments to the options the Custodian and/or Investment Advisor sets for your plan. A Self-Directed IRA only excludes IRA investment opportunities not allowed by the Internal Revenue Service. 14

15 The Self-Directed IRA Alternative An efficient alternative to a Standard IRA may be the Self-Directed IRA. A Self-Directed IRA allows an IRA owner to invest his/her funds in any investment that is not expressly prohibited by the IRS. Instead of being limited to traditional investments, an IRA owner literally has a world of possibilities. Investments in the United States, as well as outside the United States are possible. A Self-Directed IRA is an IRA that has been placed with a custodian who allows you to take full advantage of the flexibility the IRS has built into IRA investing. In most cases, it has not been the IRS that has limited the investment choices of IRA owners; it has been the custodians and financial advisors. You are allowed to invest in almost anything you desire with just a few exceptions. While this process is fairly easy to complete, you must make sure to follow all rules, regulations, and laws regarding transferring your current IRA, transferring your current retirement plan, and/or investing your current IRA contributions. Self-Directed IRAs can potentially provide solutions for an IRA investor to solve some of the problems they face in retirement, or as they are approaching retirement. The real key is allowing you to invest in what you want, when you want, how you want, and where you want. As stated previously, Self-Directed IRAs are governed under Internal Revenue Code Section 408 just like all IRAs. You must follow all of the same exact rules, laws, and regulations, but you get to invest your IRA funds the way YOU want to invest. If you want to invest in a business YOU CAN If you want to invest in a promissory note YOU CAN If you want to invest in alternative investments YOU CAN If you want to invest in real estate YOU CAN If you want to invest in many other non-traditional investments YOU CAN You can establish your Self-Directed IRA account simply by: 1. Transferring your current IRA balance to a Self-Directed IRA custodian 2. Transferring your current employer retirement plan to a Self-Directed IRA custodian And/Or 3. Funding your current IRA contribution to a Self-Directed IRA custodian 15

16 New Legislation or the Best Kept Secret? According to the Investment Company Institute Study reported on 1/2008, more than 46 million households have an IRA. Employee Benefit Research Institute (EBRI) in Washington, the author of Individual Retirement Account Balances, Contributions, and Rollovers, 2010: The EBRI IRA Database, stated in 2010 that there were nearly 15 million IRA accounts held by more than 11 million people with total assets of just over 1 trillion. A fairly large number of investors and financial professionals have either never heard of a Self-Directed IRA or have limited knowledge on the subject. One of the most widely utilized financial instruments for retirement savings in the United States is the IRA. There is a high probability that most people saving for retirement, and most financial professionals, have heard about the use and benefits of an IRA. The Investment Company Institute reported in January 2008 that more than 46 million households have an IRA. And yet while the term IRA has become a household name for most people saving for retirement, we have found that a fairly large number of investors and financial professionals have either never heard of a Self-Directed IRA or have limited knowledge on the subject. Many people think that the Self-Directed IRA concept must have been created with new legislation in recent years, but the information, rules and regulations contained in the Internal Revenue Code, Section 408 is the exact same for both Standard and Self-Directed IRAs. There is no new legislation that allows for a Self- Directed IRA. Simply put, a Self-Directed IRA is an IRA that provides the individual investor a great deal more flexibility and control than what most people believe an IRA can provide. Self-Directed IRAs have been one of the best kept financial secrets. 16

17 Necessity of a Trustee or Custodian Most investors do not understand why they can t manage, invest, transfer, and hold their IRA funds any way they want. After all, the money in the IRA is owned by the IRA owner isn t it? The answer is yes and no. An IRA will be held by a financial institution for the benefit of the IRA owner. The IRA is not really held in the name of the IRA owner, but rather for the benefit of the IRA owner. It sounds like semantics but the rules are the rules. One reason for this process is to provide a system that potentially reduces the chance that an IRA owner will do something improper with his/her IRA and subject themselves to unnecessary income taxes and possible penalties. Another potential reason for this lies in the potential taxation of the IRA proceeds. Upon any distribution, the taxable IRA investor will receive a portion of the liquidated funds, and then pay a portion of the funds to the IRS. The role of the custodian in a Self- Directed IRA is critical in determining its liability for any potential prohibited transactions. IRA accounts, whether Standard IRAs or Self-Directed IRAs, must be held and administered by a custodian. IRA accounts can be held for the benefit of the IRA owner but the assets in the IRA must be held by the custodian and titled properly. According to Jason Helquist, MA, LL.M, and President of Provident Trust Group: All IRA assets are required to be held by a custodian/trustee, which is normally a bank, trust company, credit union, or a custodian that has been approved by the IRS. Unlike a qualified plan with an employer in which the owner/employee can serve as plan trustee, the IRA owner cannot hold title to the assets in the IRA. Accordingly, when investing in alternative asset classes, the IRA owner should direct the custodian to purchase and hold the investment in the name of the account (e.g., Name of Custodian, for the benefit of John Smith s IRA). The IRS has issued Forms 5305 and 5305-A as model IRA agreements, which are used by many trustees and custodians. Form 5305-A provides that the IRA owner may direct investments and retain most traditional powers that would otherwise create a passive trust, and that such powers do not cause the IRA s assets to be owned by the IRA owner. Any alterations to the Model IRA agreements must be submitted for IRS approval. 17

18 Necessity of a Trustee or Custodian (Continued) The Internal Revenue Code expressly holds that IRA custodial accounts are treated as IRA trusts as long as the assets are held by a bank, trust company, or other approved entity, and that the IRA custodian is treated as the trustee for all statutory purposes. Since the owner of an IRA is the sole participant, the IRA is not a plan governed by ERISA. This is critical, as it means ERISA s preemption of state law is not applicable. ERISA s fiduciary rules regarding reasonable prudence and diversification do not apply to IRAs. However, the Internal Revenue Code does require that the IRA be for the exclusive benefit of the owner or his beneficiaries. A Self-Directed IRA custodian will typically provide the following services: Establish your Self-Directed IRA account Communicate with previous plan custodian to enact transfer of funds to Self-Directed IRA Receive, document, and report all deposits into Self-Directed IRA account Distribute, document, and report all disbursements from Self-Directed IRA account Distribute all required minimum distributions RMDs Review suitability and paperwork for proposed investments Send funds to invest in specific investments Receive income from investments Report account values Provide governmental filings federal, state, local, etc. Offer miscellaneous services Some IRA and retirement plan owners may need an alternative to continue to defer income taxes on their IRAs and retirement plans, help increase the potential for income and appreciation, open doors for unique investment opportunities, to feel comfortable with their investments, and to potentially provide increased protection. Mr. Helquist adds this data regarding the role of the custodian: As mentioned above, the Internal Revenue Code requires a bank to serve as an IRA custodian or trustee. Among the institutions defined as banks are trust companies, credit unions, banks, corporations governed by a state agency which regulates state banking institutions, or an IRS approved company. The IRA owner cannot act as the trustee or custodian. Typically, a custodian of a Self-Directed IRA will act only at the direction of the IRA owner. The custodian retains no discretionary authority and generally will have the IRA owner acknowledge the non-discretionary nature of its role. The acknowledgments will typically include waivers of liability. 18

19 Possible Problems IRA & Retirement Plan Owners Face It may seem that owning an IRA, and/or being a participant in a retirement plan, is too confusing and that the success of the IRA, and/or retirement plan, ultimately is completely reliant on luck. Much of the confusion may come from a lack of information regarding the investment options and alternatives an IRA, and/or retirement plan the owner actually has. Many IRA, and/or retirement plan owners have worked very hard to accumulate as much wealth as possible in their accounts. With the recent financial markets chaos, there are undoubtedly many planning obstacles to deal with to try and maneuver the retirement funds for ultimate success. Some of the problems investors could possibly face include: Account values have decreased substantially Unsure what to do next with assets Investment options may be limited at their current custodian Asset classes and types may be limited at their current custodian Do not feel comfortable with traditional investments Do not feel comfortable with traditional investments that could potentially lose value/income if interest rates/inflation increase Feel that they may have to pay tax and possible penalties to invest in assets they prefer Income taxes and penalties could take up to 50% of a distribution Current assets might not allow for growth opportunities needed for retirement success Assets outside their IRA and/or retirement plan have also decreased Not having funds available outside their IRA and/or retirement plan for investment opportunities Net income after all expenses of IRA could be low Appreciation opportunities with current IRA might look bleak Current portfolio might need assets that are not correlated to traditional investments Current IRA and/or retirement plan does not allow investments in: Individually owned or jointly owned investment real estate, Real Estate Investment Trusts (REITs) both public and private, Private Placement investments & direct investments, Delaware Statutory Trusts (DSTs), businesses and franchises, private and publicly listed stock, Limited Liability Companies (LLCs), Limited Partnerships (LPs) Recently we have seen investors who face many of the above problems. We feel that the more of these problems investors face, the higher the potential they will not achieve their retirement goals. An IRA and/or retirement plan owner may face the problems listed above. Just one of the problems could be enough to limit the success of their retirement accounts. 19

20 Your Self-Directed IRA Team When in a position to make a difficult decision, we often rely upon others for guidance and direction. In many cases we may ask advice from a family member, friend, or respected professional. Getting outside input helps us to align our thoughts because we have been able to look at the decision from multiple angles. All or various members of the team below can help you to make a knowledgeable decision about your Self-Directed IRA. You will not have to act alone in making the best decisions to help you meet your financial goals. The Investor (You) It is important to remember that it is your money that is being invested. You will be the one who decides to move forward with a specific investment inside your Self-Directed IRA. While you will receive advice from some very qualified professionals, it is ultimately your final decision. Once you determined you need the investment flexibility of a Self-Directed IRA, you should assemble your team of specialists to help you achieve your goals. The Investment Advisor Representative This is the licensed securities professional who you use to provide you financial guidance, guide you through the entire Self-Directed IRA process. The Investment Representative will act as your advisor throughout an entire transaction, working with all parties involved and coordinating the majority of the work that must be done to help you accomplish your goals. The most important responsibility of your Investment Advisor Representative is to help you make an informed decision that is consistent with your financial objectives. The Self-Directed IRA Custodian This is the firm responsible for the implementation, administration, and reporting of your IRA. Typically the custodian will establish your account, receive funds, make investments, distribute funds, review proposed investments, report values, provide governmental filings, and perform other services associated with the Self-Directed IRA account. Provident Trust Group is a custodian. The Accountant Your accountant can provide valuable insights as to the income tax aspects of your Self-Directed IRA. Your accountant can work hand-in-hand with your financial advisor. In many cases the financial advisor will help educate your accountant on Self-Directed IRAs. The Attorney Your attorney can also provide valuable recommendations as to the legal aspects of your Self-Directed IRA. Your attorney can work hand-in-hand with your accountant and Custodian. As with your accountant, your financial advisor can typically help educate your attorney on the specifics about potential Self- Directed IRA investments. 20

21 Self-Directed IRA Guideline Summary This section will provide a very basic introduction to the rules and restrictions you should be aware of and discuss with your tax advisor ways to try and reduce unnecessary income taxes and penalties regarding your IRA accounts. For a more thorough explanation of these rules and restrictions please carefully read the section of this report titled IRA Rules, Regulations, Restrictions, & Recommendations. We feel that it is very important to first understand what can cause an IRA owner to pay unnecessary income taxes and penalties. In IRS Publication 590, it is stated: It is of the utmost importance for you to seek and receive advice from qualified tax, legal, and financial advisors regarding any questions you have, or actions you plan to take, regarding your Self-Directed IRA. What Acts Result in Penalties or Additional Taxes? The tax advantages of using traditional IRAs for retirement savings can be offset by additional taxes and penalties if you do not follow the rules. There are additions to the regular tax for using your IRA funds in prohibited transactions. There are also additional taxes for the following activities: Investing in collectibles, making excess contributions, taking early distributions, and allowing excess amounts to accumulate (failing to take required distributions). The list for possible Self-Directed IRA investments is virtually limitless. Instead of stating what an IRA owner can invest in, the Internal Revenue Service tells us specifically what an IRA owner cannot invest in. Investments that are NOT allowed in an IRA include: Prohibited Transactions: Life Insurance on yourself or related party Sub-Chapter S Corporations Investment in Collectibles. The following information is from IRS Publication 590: If your Traditional IRA invests in collectibles, the amount invested is considered distributed to you in the year invested. You may have to pay the 10% additional tax on early distributions. Collectibles include: artworks, rugs, antiques, metals, gems, stamps, coins, alcoholic beverages, and certain other tangible personal property. Exception Your IRA can invest in one, one-half, one-quarter, or one-tenth ounce U.S. gold coins, or one-ounce silver coins minted by the Treasury Department. It can also invest in certain platinum coins and certain gold, silver, palladium, and platinum bullion. 21

22 Self-Directed IRA Guideline Summary (Continued) According to Jason Helquist, MA, LL.M, and President of Provident Trust Group: The Internal Revenue Code does not tell IRA investors which asset classes are appropriate. It only identifies those assets in which IRA investors cannot invest, such as collectibles (rare coins, artwork, antiques, rugs, alcoholic beverages, metals, gems or stamps) or life insurance on the life of the IRA owner. Thus, opening a plethora of opportunities, available to IRA owners. Relatively few financial institutions permit IRA owners to direct IRA monies to nontraditional asset classes. The institutions providing such a service typically will act only at the direction of the IRA owner. Most will not provide advice or direction regarding the prudence of the IRA owners actions. Indeed, as an additional measure, the institutions generally cause the IRA owners to acknowledge that there is no assumption of liability when an institution acts at the direction of an IRA owner. Thus, when a Self-Directed IRA asset underperforms or becomes worthless, the institution assumes no liability for the loss. Periodic Table of Assets TM 22

23 The Self-Directed IRA Process The structure of the Self-Directed IRA can provide tremendous flexibility for an IRA owner. The actual rules, regulations, and laws that are utilized to establish, maintain, and manage a Self-Directed IRA are indeed fairly complex. Because of these rules, some people not very familiar with the Self-Directed IRA concept might assume that the process of setting up the Self-Directed IRA account could be very difficult, confusing, and time consuming. A good Self-Directed IRA custodian can help streamline the process and reduce the involvement, time, and stress for an IRA owner. The good news is that setting up and managing a Self-Directed IRA can be a very simple process. While there are many administration steps that are handled by the Self-Directed IRA custodian, typically an IRA owner will be required to participate in these steps: 1. Complete paperwork to establish a Self-Directed IRA account. 2. Send the paperwork to the Self-Directed IRA Custodian. 3. Fund the Self-Directed IRA account by: a. Completing paperwork to transfer a current IRA account to the Self-Directed IRA account. And/or b. Complete paperwork to transfer a current employer sponsored retirement plan to the Self-Directed IRA account. And/or c. Complete paperwork and send a current year IRA contribution to the Self- Directed IRA account. 4. Wait for confirmation that funds have been received by the Self-Directed IRA account. 5. Direct the Self-Directed IRA custodian to invest the funds into the preferred investment option. The Self-Directed IRA custodian will typically provide guidance as to their opinion of the suitability and acceptability of the investment choice according to their interpretation of Internal Revenue Service rules. 6. Additional deposits can be made into the same Self-Directed IRA account by following the steps in # 3 above. 7. Withdrawals can be made by sending a written request to the Self-Directed IRA Custodian. 8. Assets in the Self-Directed IRA can be sold by sending a written request to the Self- Directed IRA Custodian. 9. Sales proceeds from # 8 can be reinvested in new assets by repeating step # 5 above. By following these simple steps an IRA owner can have increased investment flexibility. 23

24 Unrelated Business Taxable Income (UBTI) One of the most powerful advantages of an IRA is tax deferral of income and appreciation prior to distribution. This allows an IRA value to grow undisturbed by income taxes. Any disturbance to the tax-deferred growth could decrease the future value of the IRA value. One tax area that could decrease the value of an IRA is called Unrelated Business Taxable Income, or commonly called UBTI. UBTI is a fairly complicated section of the tax code. The short version is that an additional tax will be levied on income earned in an IRA caused by UBTI. We sought the help of Jason Helquist, MA, LL.M, and President of Provident Trust Group to help explain UBTI: The tax advantage of an IRA is that income is not taxed until distribution. However, to prevent tax- exempt entities from competing unfairly with taxable entities, Congress has made tax-exempt entities subject to unrelated business taxable income (UBTI). UBTI is defined as gross income derived by any organization from any unrelated trade or business regularly carried on by it, reduced by deductions directly connected with the entity; and occurs when a tax-exempt entity s income is derived from any trade or business that is unrelated to its tax-exempt status. So, this becomes applicable if your IRA has ownership in an LLC or other entity. Although there is little formal guidance on UBTI implications specific to Self-Directed real-estate IRAs, there is considerable guidance in the traditional tax-exempt context. The fact that UBTI occurs should probably not negate the use of any given asset class within an IRA. It should simply act as a one of many factors IRA owners should consider prior to investing. It is of utmost importance for you to seek and receive advice from qualified tax, legal, and financial advisors regarding any questions you have, or actions you plan to take, regarding how specific investments you plan to make inside your Self- Directed IRA can create UBTI and subject your IRA to additional income taxes. UBTI also applies to unrelated debt-financed income (UDFI). Debt-financed property refers to leveraged assets or assets that a tax-exempt owner has purchased with borrowed money. In such cases, only the income attributable to the financed portion of the property is taxed. There are some important exceptions from UBTI, which have additional importance where a Self-Directed IRA holds debt-financed real-estate assets. If the IRA borrows money to finance the purchase of real estate, the portion of the rental income attributable to that debt will be taxable as UBTI. 24

25 Unrelated Business Taxable Income (Continued) For example, if the IRA purchases real estate for 200,000 with a 50,000 mortgage, then 25% of the rental income will be subject to UBTI. The UBTI must be paid by the IRA, not the IRA owner. it is important to ensure that there is sufficient liquidity in the IRA or cashflows generated from the real estate to pay the tax. An IRA with 1,000 or more of gross UBTI must file a Form 990-T. An IRA owner must aggregate all of his or her individual accounts to determine if the 1,000 threshold is met. The IRA owner cannot avoid the UBTI by purchasing property that is already subject to an existing debt and assuming that debt. It is important to note that the mere recognition of UBTI or UDFI does not compromise the overall tax exempt status of the IRA. Asset Purchase Mortgage Self-Directed IRA Rental Property Rental Income UBTI Payment As shown above, only the transactions generating the UBTI or UDFI trigger a tax. All other transactions or income generation by the IRA assets preserve the tax-deferred status. It is also very important to remember that just because an IRA is subjected to UBTI, the overall income taxes caused by the UBTI could be insignificant. I always advise IRA owners to verify the unknown or projected income taxes from UBTI with their tax professional prior to investing, says Jason Helquist, MA, LL.M, and President of Provident Trust Group. 25

26 Hypothetical Self-Directed IRA Scenario 1 Let s look at an example of hypothetical investors, Stan and Julie, both age 55. Julie has an IRA that had a balance of 750,000 two years ago. Due to problems in the market, the current value of Julie s IRA is 375,000. Her IRA is currently invested in traditional investments. They have always held traditional investments because this is what their tax, legal, and financial advisors have always recommended. Recently, they have learned about the potential benefits of a Self- Directed IRA. After researching Self-Directed IRAs, Stan and Julie decided that they would invest in real estate through their new Self- Directed IRA account. They would like to find an investment that provides them an opportunity for both income and appreciation. In this hypothetical example, they found a four-unit rental property in an acceptable location for the sale of 750,000. They plan to put 375,000 down on the property and finance the remaining amount. Investment Scenario # 1 - Flow of Funds Self-Directed IRA This hypothetical scenario is presented to show the potential economic opportunities of a Self-Directed IRA. Always consult a tax, legal, and/or financial advisor prior to making any financial decision. This investment scenario is not based upon any particular individual(s), Self- Directed IRA, individual IRA owner, or investment. Your actual investment results will vary. Rental Income Investment Amount 375,000 (50%) Non-Recourse Loan 375,000 (50%) Rental Property Lender 26

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