ROBS 401k Small Business Financing Explained
Real-estate agents, real-estate brokers or any entrepreneur seeking to fund their own new or existing business (e.g., a real estate operating company) using their own retirement funds may be interested in exploring the rollover as business startup (ROBS 401k/PSP) vehicle.
This blog post covers the pros and cons, the rules to consider before and after the ROBS transaction, and the IRS’s view surrounding the ROBS transaction.
An entrepreneur such as a real estate agent or brokers seeks to fund his or her own business with retirement funds after having accumulated a good chunk of funds in an IRA and/or former employer qualified plan such as a 401k or 403(b). While 401k franchise financing is the popular reason that small business owners utilize the ROBS business financing strategy, other business types can and also use the ROBS design.
Summary of the ROBS 401k Small Business Financing Transaction
New C-Corporation formed that then sponsors a 401k plan.
The 401k plan document contains specific language allowing the participant(s) to invest rollover funds from other retirement plans in employer stock.
Often the entrepreneur is the sole employee of the C-Corporation and the only participant in the 401k plan.
The entrepreneur completes forms to formally roll-over or transfers funds from his or her former employer qualified plan or IRA(s) to the new 401k plan. As a result because funds have been moved from one tax shelter (IRA or former employer 401k, for example) account to another (the new 401k created for the new C-Corporation), the movement of the retirement funds is not deemed a taxable distribution.
The entrepreneur as the participant in the new 401k plan directs his or her funds into purchase of newly created C-Corporation stock, so now the 401k plan owns the C-Corporation stock. With the funds, the C-Corporation is now able to purchase a franchise or start another type of business.
The ROBS transaction Pros
Avenue to fund a business without debt since retirement funds are used.
Approach to continue to grow your retirement funds while at the same time taking a fair salary.
Make annual contributions to 401k as well as have option to invest in alternative investments such as real estate, tax lines, trust deeds, commodities and equities.
As your business grows and hire employees, the new employees will have option to participate in the 401k.
The ROBS transaction Cons
If the business fails you lose your retirement funds.
You are more likely to get audited as the IRS is concerned with prohibited transactions and ensuring that annual nondiscrimination testing is annually performed and employees are offered the option to participate in the 401k.
Rules to Consider Before the ROBS Transaction
Compliance before the ROBS transaction is important. Therefore, make sure to work with a competent attorney and 401k professional when structuring your ROBS transaction.
For example, specific language in the 401k Plan document pertaining to the use of rollover funds for the purchase of employer stock is required.
An appraisal of the C-Corporation, the shares of which the 401k is purchasing, may be necessary in order to confirm that the 401k is receiving adequate consideration.
During the ROBS Transaction
Ongoing administration is required. This includes annual Plan testing (known as nondiscrimination testing)--, governmental reporting (filing of annual Form 5500 and other documents), and communication of the 401k plan to employees.
After the ROBS Transaction
If you decide to sell the 401k plan’s stake in the corporation, the shares have to be sold at fair market value and thus an appraisal is required before the sale is consummated.
IRS Take on ROBS
The IRS is concerned with:
Prohibited transactions before, during and after the transaction
Failure to perform nondiscrimination testing
Valuation of the employer securities
Failure to communicate 401k plan to new or existing employees
To learn more about how to finance a business using retirement funds Click Here, or call 800-489-7571.