February 2014

Warning: U.S. Tax Court Rejects IRS Policy on the One Rollover Per 12-Month Rule

Commencing immediately, an IRA custodian/trustee will need to start applying a new rule for when it is receiving an IRA rollover contribution.

Since at least 1989 the IRS has stated in Publication 590 that the once per year rollover rule applies on a per IRA plan agreement basis and not to all of a person’s IRAs. That is, if two distributions are taken from the same IRA, then only one of them could be rolled over. A distribution taken from a different IRA could be rolled over even though a person had taken a distribution from another IRA and rolled it over within the 12-month period. The 2013 version states the following on page 25.

Waiting period between rollovers. Generally, if you make a tax-free rollover of any part of a distribution from a traditional IRA, you cannot, within a 1-year period, make a tax-free rollover of any later distribution from that same IRA. You also cannot make a tax-free rollover of any amount distributed, within the same 1-year period, from the IRA into which you made the tax-free rollover.

The 1-year period begins on the date you receive the IRA distribution, not on the date you roll it over into an IRA.

Example. You have two traditional IRAs, IRA-1 and IRA-2. You make a tax-free rollover of a distribution from IRA-1 into a new traditional IRA (IRA-3). You cannot, within 1 year of the distribution from IRA-1, make a tax-free rollover of any distribution from either IRA-1 or IRA-3 into another traditional IRA.

However, the rollover from IRA-1 into IRA-3 does not prevent you from making a tax-free rollover from IRA-2 into any other traditional IRA. This is because you have not, within the last year, rolled over, tax free, any distribution from IRA-2 or made a tax-free rollover into IRA-2.

A recent U.S. Tax Court case is a classic illustration that there are times the IRS wants to collect taxes so strongly from a particular taxpayer that the IRS personnel in charge is willing to have the decision cause the general public large tax administrative problems. Such is the result of a recent U.S. Tax Court case, A.L. Brobrow and E.S. Brobrow v. Internal Revenue Commissioner, T.C. Memo 2014-21 as decided on January 28, 2014.

The court expressly holds that the one-year restriction between rollovers applies to all distributions from all IRAs and is not limited to the same IRA. The court found the applicable statute expressly authorizes just one rollover during the 12-month period commencing on the date of distribution when such distribution is rollover. The court did not discuss the subject if the IRS had the authority to modify this provision. The court wrote,

Section 408(d)(3)(B) limits a taxpayer from performing more than one nontaxable rollover in a one-year period with regard to IRS and individual retirement annuities. Specifically, section 408(d)(3)(B) provides:

This paragraph [regarding tax-free rollovers] does not apply to any amount described in subparagraph (A)(i) received by an individual from an individual retirement account or individual retirement annuity if at any time during the 1-year period ending on the day of such receipt such individual received any other amount described in that subparagraph from an individual retirement account or an individual retirement annuity which was not includible in his gross income, because of the application of this paragraph.

The reference to “any amount described in subparagraph (A)(i)” refers to any amount characterized as a non-taxable rollover contribution by virtue of that amount's being repaid into a qualified plan within 60 days of distribution from [*9] IRA or individual retirement annuity. The one-year limitation period begins on the date on which a taxpayer withdraws funds from an IRA or individual retirement annuity and has no relation to the calendar year.

The plain language of section 408(d)(3)(B) limits the frequency with which a taxpayer may elect to make a non-taxable rollover contribution. By its terms, the one-year limitation laid out in section 408(d)(3)(B) is not specific to any single IRA maintained by an individual but instead applies to all IRAs maintained by a taxpayer. Section 408(d)(3)(B) speaks in general terms: An individual may not receive a non-taxable rollover from ''an individual retirement account or individual retirement annuity" if that individual has already received a tax-free rollover within the past year from ''an individual retirement account or individual retirement annuity." (Emphasis added.) In other words, a taxpayer who maintains [*13] multiple IRAs may not make a rollover contribution from each IRA within one year.

What were the facts of this case?

Mr. Brobrow maintained two traditional IRAs at Fidelity Investments. One was a rollover IRA. His wife maintained her own traditional IRA. The couple must have had cash flow problems. Fidelity's advisers apparently told him he could to do the following.

1. On April 14, 2008, he withdrew $65,064 from his IRA #l. He did take two distributions. It may be he needed these funds to pay tax liabilities, which had to be paid by the April 15th.
2. On June 6, 2008, he withdrew $65,064 from his IRA #2
3. On June 10, 2008, he made a rollover contribution of $65,064 into IRA #l. The funds had come from his personal checking or investment account
4. On July 31, 2008, she withdrew $65,064 from her personal traditional IRA. These funds were deposited into a joint account
5. On August 4, 2008, Mrs. Brobrow made a rollover contribution of $65,064 into his IRA #2. The funds for this rollover came from their joint account
6. On September 30, 2008, she made a rollover contribution of $40,000 into her traditional IRA. The funds came from their joint account. Note her withdrawal of $65,064, however, was taxable as she made her rollover contribution on day 61 and not on day 60.

If the court had followed the IRS statement set forth in the 2007 or the 2008 Publication 590, Mr. Brobrow’s two withdrawals of $65,064 would not have been taxable. He rolled over both within the 60-day time period. He had not rolled over a previous distribution from the two IRAs within the preceding 12 months.

Actions by an IRA Custodian/Trustee.

CWF is in the process of revising its rollover certification forms to state the 12-month rule is no longer a one per plan agreement. The Disclosure Statement of the IRA Plan Agreement booklet will also be revised. An IRA custodian/trustee will want to send an amendment to its IRA accountholders informing them of this change. It must be remembered that any distribution after the one which is rolled over is now taxable. One way to inform the existing accountholders would to furnish the 2013-2014 Comprehensive IRA Amendment, which discusses this change.

Excess HSA Contributions - The HSA Custodian Must Not Shirk its Responsibilities

An HSA custodian is required to prepare and furnish Form 1099-SA (Distributions from an HSA, Archer MSA,or Medicare Advantage MSA) to report distributions received by the HSA owner or an inheriting HSA beneficiary. The individual will use the information from the Form 1099-SA to complete their federal income tax return, including Form 8889 (Health Savings Accounts).The individual explains on this form whether all distributions were used for qualified medical reasons and so they are tax-free, whether some of the distributions are taxable since they were not used to pay a qualified medical expense, or whether some distributions are not taxable since they were the withdrawal of an excess contribution.

The IRS takes the reporting of the withdrawal of excess HSA contributions very seriously. Reason code 2 is to be inserted in box 3 of Form 1099-SA when an HSA owner withdraws an excess contribution. The amount of the earnings, if any, associated with the excess contributionis to be reported in box 2. The IRS procedures applying to the withdrawal of HSA excess contributions are very similar to the rules applying to the withdrawal of excess IRA contributions, but there are some significant differences.

Excess HSA contributions can cause tax problems for an HSA owner, but they also cause administrative problems for the HSA custodian/trustee. The purpose of this article is to discuss the tax rules applying to excess HSA contributions so that an HSA custodian will properly perform its IRS reporting duties and also help its HSA owners. The HSA custodian/trustee may well want to have the authority to charge an administrative fee for the additional work which will need to be performed on account of the excess HSA contribution(s).

Based on a number of consulting calls, some financial institutions are adopting the approach that the institution will report all HSA distributions as normal distributions and then instruct the HSA owner that it is up to him or her (and the accountant) to explain things on the Form 8889

This approach is imprudent as it relies on wishful thinking. This approach is contrary to IRS guidance. The IRS may assess a fine of $50 for each Form 1099-SA prepared in error . If the IRS concludes that an HSA custodian has failed to provide a correct Form 1099-SA due to its intentional disregard of the requirement to furnish a correct Form 1099-SA, then the penalty is at least $250 per form with no maximum penalty. The $250 perform penalty may be assessed twice – once with respect to the copy required to be filed with the IRS and also with respect to the copy to be furnished the HSA owner.

Who is primarily responsible for correcting an excess HSA contribution?

The HSA owner is, but in some situations the HSA custodian must be proactive in making sure the excess contribution is corrected. It is the HSA owner who must pay the 6% excise tax if excess contributions have been made to his or her HSA and they have not been with-drawn by the tax filing deadline. Normally, this is April 15 of the following year. A special tax rules modifies the deadline to October 15 if the individual filed his or her tax return byApril 15 and paid any taxes owing. The 6% tax applies for each year the excess remains in the HSA.

The HSA plan agreement provides that the HSA custodian is NOT authorized to accept annual contributions totaling more than $7,450 for 2013 and $7,550 for2014. This amount is the family HDHP limit plus$1,000. This provision means the HSA custodian must be proactive in correcting excess contributions which have arisen because the individual and the employer contributed more than this limit. Both the individual and the institution have done something they should not have done. The individual made the excess contribution and the institution should not have accepted it. HSA custodians must have a procedure to monitor (and enforce) the $7,450/$7,550 limit.

In order to illustrate some of the administrative issues which may arise from an excess HSA contribution situation, two situations will be discussed.

Situation #1. Sue Taxpayer, age 39, contributed $6,450 to her HSA on April 1, 2013 for 2013. At that time she thought she had family HDHP coverage for allof 2013. However on July 1, 2013, she went to work for a new employer which covered her immediately under a non-HDHP. Thus, she was eligible to contribute only $3,125 to their HSA and so she needs to withdraw her excess contribution of $3,125 plus the related income, if any.

In January of 2014, Sue visits the HSA custodian and states she needs to withdraw $3,125 as an excess HSA contribution plus the related income. The HSA custodian must assist her. The withdrawal cannot be coded as the withdrawal of a normal HSA distribution. Note that even though this distribution relates to a 2013 distribution, it will be reported on a 2014 Form 1099-SA. The rule is – the income, if any, withdrawn and shown inbox 2 is taxable for the year withdrawn (2014) and not 2013 which is the IRA rule.

Situation #2. John Taxpayer contributes $14,000 to his HSA in 2013 for 2013. He says he was unaware of any contribution limit. His beginning balance as of January1, 2013 was $600. He made monthly contributions of$1,000. His HSA’sending balance as of December 31,2013 was $200. His distributions for the year totalled $14,400. Of this $12,400, John knows that $8,800 was used to pay qualified medical expenses and the remaining $5,600 was used to pay the premiums for the HDHP. The institution does not know how John used the funds.

The HSA custodian has initially coded all of the HSA distributions as being normal HSA distributions and a code “1” would be inserted in box 3 on the 2013 Form1099-SA. The HSA custodian, however, knows that John made excess contributions of at least $6,950 ($14,000-$7,450). This amount is no longer in the HSA as it only has a balance of $200 at year end. Whether John knew it or not, when he took a distribution he was withdrawing an excess contribution. The HSA custodian cannot continue to report this amount as the withdrawal of a normal distribution. It must change some of withdrawals to show that he withdrew $7,950 as an excess contribution, plus the earnings, if any.

Be aware that the IRS has not furnished specific guidance on Situation #2. The IRS should do so. Note that John used the funds to pay the premiums for the HDHP. As discussed in a previous newsletter article, if he had taken a normal distribution he would have had to include the $5,600 in income and also pay the 20% penalty tax as the funds were not used to pay a qualified medical expense. But he does not have such adverse tax consequences as he withdrew an excess contribution.

An HSA custodian must adopt procedures to properly report the withdrawal of an excess HSA contribution(s). Such withdrawals must not be reported as normal distributions.