Our blog of May 26 on "Distributed Custodial Accounts" generated a number of comments, which require a bit of a "follow-on." Ellie Lowder, one of the grand dames of the 403(b) world, agreed with my assessment. She mentioned that she had discussions with the IRS on this point. Staff just couldn’t see how distributions of custodial accounts from a terminated 403(b) plan could work under Section 72 (dealing with the taxability of distributions from plans and annuities). The IRS mentioned that Section 72 is clear on the distribution of annuities, but there is nothing about the distribution of custodial accounts.
Though I can empathize with the IRS’s concerns, it actually points out the difficulty with the path it has chosen to foster greater 403(b) compliance: for over 50 years, these arrangements have been treated as individual pensions. Trying to force them into an employer plan scheme gives rise to these kinds of difficulties.
For the past 20 years, custodial accounts have existed outside of a plan, with Section 72 being applied well-and being administered properly under the Code, to boot. There are a few examples which are telling:
- Example 1: A tax-exempt employer goes out of business in 1998, after having sponsored an ERISA 403(b) plan funded with individual custodial accounts from a single mutual fund complex. The plan would have terminated (for ERISA purposes) upon the employer going out of business and ceasing contributions. A former employee, age 71, begins withdrawing his RMDs. There is no employer to approve the distributions, or to certify to the participants age, and the investment company relies upon the employee representations. The employee has to take distributions, or suffer penalties. What happens? The mutual fund begins the payments, and continues even today, should he still be living. The custodial account exists without a plan, and is effectively distributed. Though the plan termination was not a distributable event, the severance from employment was. But the tax effect is the same.
- Example 2: A similarly situated employer employer goes out of business in 2010. Now what? Will the investment company ever approve payments out, bcause there is no employer? Does the IRS now view the custodial accounts of the plan participants as being immediately taxable because it is no longer associated with an employer? And why should the tax treatment be any different between the 1998 bankrupt employer and the 2010 bankrupt employer? Will the participant be penalized by a 50% tax on the failure to take an RMD when he was required to, but there was no way to do it?
- Example 3: The plan of the employer in Example 2 was funded solely by annuity contracts of a single vendor. Two months prior to going out of business, the employer terminates its plan and distributes the annuity contracts. We know the IRS permits this, so the contract maintains its 403(b) status. But we don’t know what rules apply to the contract when an employer no longer exists. Will the annuity company permit the RMDs without employer approval? When the IRS eventually promulgates rules on how such contracts such be administered, is there any legal reason those rules should not apply to the custodial account in Example 2?
This really all points out to the unworkability of the IRS’s position. The impact of forcing individual pensions into an employer mode is tough enough without having to make it more difficult on vendors, employers and employees than need be.