Clients who are interested in alternative or nontraditional investment strategies often wish to use their retirement funds for those investments. Of course, the IRS limits the types of investments that can be made within the traditional IRA structure. For many, a self-directed "checkbook control" IRA can provide a powerful investment tool that allows the account owner to have a greater degree of control over retirement investment choices, all while minimizing custodian involvement and the red tape associated with traditional self-directed IRAs.
A recent Tax Court case, however, illustrates the serious negative tax consequences that can arise when these accounts aren't managed according to the letter of the law. Advisors should take note — and advise taxpayers who wish to buy rare coins, real estate or even cryptocurrency about the risk of potential "deemed distribution" treatment that can create immediate tax liability.
Checkbook Control IRAs: The Basics
A checkbook control IRA is an IRS-approved retirement account structure that allows the account owner to make independent investment decisions. Like self-directed IRA owners, owners of checkbook control IRAs can invest in nontraditional assets, such as Bitcoin, precious metals and real estate.
To form a checkbook control IRA, a self-directed IRA LLC is established first. The LLC establishes a checking account like any other business entity. However, the LLC is funded using the IRA funds — which are then transferred to the checking account. With the advice of tax counsel, the IRA owner can become the managing member of the LLC and retain signature authority over the checking account (i.e., "checkbook control").
The checkbook control can allow the IRA owner to act more quickly when making an investment. Despite this, the owner is prohibited from receiving assets — and any distributions must be properly processed through the IRA custodian, who is required to report the distribution.
The key to preserving tax-preferred treatment is to ensure that the IRA investments never revert directly to the IRA owner, but always back to the IRA itself.
Tax Court Findings on 'Deemed Distribution' Treatment
A recent U.S. Tax Court case, McNulty v. Commissioner, illustrates the substantial risks associated with maintaining a checkbook control IRA. In this case, the taxpayer used a third-party service provider to purchase American Eagle coins with the IRA and stored them at home. She first directed her IRA custodian to form a single-member LLC (of which she was the managing member) and to transfer her IRA funds to the LLC's bank account.
