IRA LLC as owner in MMLLC | % Ownership | Taxes | IRS Rules

IRA LLC as owner in MMLLC | % Ownership | Taxes | IRS Rules

Rental Property Investor · Greenville, SC · Member since 2018 · 4 posts · 0 votes

I have a duplex rental under contract. I plan to close in two weeks. I am set to purchase the duplex outright with my SDIRA. My current custodian is prepared to wire the funds. 

If time allows, I'd like to create a Checkbook Control IRA LLC (let's call it CHECKBOOK LLC for short) for all the reasons cited on various posts on BP concerning the Checkbook Control IRA LLC structure. I am in touch with a couple of companies that provide this service, including a sister company of my current custodian, to see how quickly they can pull this together.

In the meantime, I have been debating whether I want to purchase this duplex outright or not. Since the purchase price, closing costs, and working capital will require most of my custodial account funds (or CHECKBOOK LLC funds). I'm not sure I really want to do that, which leads me to the following...

Since I'm not sure I want to tap out my whole IRA with the purchase of a single rental property, I asked a partner of mine and he said he'd be open to going in 50%/50% on the purchase of the duplex by purchasing it in yet another LLC (an MMLLC that we should call RETIREMENT PARTNERS LLC). He'd bring his 50% in non-qualified cash or via his 401K and I'd bring my 50% via my CHECKBOOK IRA LLC. In this case, my understanding is that CHECKBOOK LLC would be a 50% owner of the RETIREMENT PARTNERS MMLLC (unless there is a reason not to do that). We'd split everything down the middle. My understanding is that my (or, more properly, CHECKBOOK IRA's) half of the rental profit would go back into CHECKBOOK LLC tax-free, irrespective of whether my partner's position is a non-qualified personal position or via his 401K.

Beyond the tax implications, where I am fuzzy is this. And this is my PRIMARY question, given the abovementioned context.. if we later decide we want to keep the rental but want to get the principal out of RETIREMENT PARTNERS LLC to use on other investment, could we sell the property from the RETIREMENT PARTNERS LLC (which has my IRA as 50% owner) to yet another MMLLC called FINAL DESTINATION, LLC where he and I (and maybe others) would be personal owners (i.e. no IRAs involved)? Would the fact that I am personally an owner in FINAL DESTINATION (either majority or minority) owner prevent this sale as a prohibited transaction? I've heard an "expert" say if FINAL DESTINATION is newly created for this purpose, then it's OK. But the language I've read seems to suggest, at best, that I'd have to be a minority owner in FINAL DESTINATION in order for such a transaction to be qualified per IRS guidelines. Thank you.

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Solo 401k Expert · Anaheim Hills, CA · Member since 2012 · 18k+ posts · 6k+ votes
7y

@Russ Sandifer, this would be considered self-dealing, can't do that. Doesn't matter what your share is, transaction between your IRA and yourself (you are considered disqualified to your IRA) would be considered prohibited transaction according to the IRS rules. This is not a 'grey' area, the language is very clear: transaction (sale) between the plan and disqualified person is prohibited, the 'expert' who told you it was ok is incorrect, here is a link to the IRS website, see it for yourself: 

https://www.irs.gov/retirement-plans/plan-particip...

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  • Solo 401k Expert · Anaheim Hills, CA · Member since 2012 · 18k+ posts · 6k+ votes
    7y

    @Russ Sandifer, this would be considered self-dealing, can't do that. Doesn't matter what your share is, transaction between your IRA and yourself (you are considered disqualified to your IRA) would be considered prohibited transaction according to the IRS rules. This is not a 'grey' area, the language is very clear: transaction (sale) between the plan and disqualified person is prohibited, the 'expert' who told you it was ok is incorrect, here is a link to the IRS website, see it for yourself: 

    https://www.irs.gov/retirement-plans/plan-particip...

  • Daniel DietzPro Member
    Rental Property Investor · Reedsburg, WI · Member since 2011 · 1k+ posts · 857 votes
    7y

    @Russ Sandifer I will let the experts comment on your long range plan, but I just wanted to make sure you were aware that you can leverage real estate within a SDIRA (or SOLO401K) by using a Non-Recourse Loan? 

    To me, depending on your goals, that *might* be better than having a partner? In my case, I have two partners AND we leverage of retirement held real estate to get the most that we can as far as long term ROI goes.

    Dan Dietz

  • Brian EastmanPro Member
    Self Directed IRA & 401k Advisor · Wenatchee, WA · Member since 2014 · 2k+ posts · 2k+ votes
    7y

    @Russ Sandifer

    The initial concept of having your LLC partner with another investor is fine. You could form a LLC for the property as you note or just hold title as tenants-in-common with your IRA LLC and the other investor (or their own LLC) owning the property.

    You could in the future sell assets to unrelated 3rd parties but not to yourself or an LLC that you have ANY participation in. Doing so would create a transaction between your IRA and you, which is disqualified. The "expert" person you refer to either is wrong on their facts or you mis-understood the answer. There is no threshold at which you can participate in the purchase of an asset out of your IRA.

    Here is my guess at where you are mis-interpreting. When you say the entity is "newly created", that would potentially work for a from-scratch purchase of a property where an entity involving the IRA and yourself was used - but the property would have to be purchased from an unrelated party (not from your IRA). While such transactions are bandied about on the internet, I would caution that such a strategy is based on interpretation of the code and nothing clearly outlined by the IRS. There is risk in such an approach.

  • Daniel DietzPro Member
    Rental Property Investor · Reedsburg, WI · Member since 2011 · 1k+ posts · 857 votes
    7y

    @Russ Sandifer I think @Brian Eastman hit the nail on the head as to where your likely misinterpretation is. I was involved in a VERY similar transaction to what he describe 'because the experts' said it would work. It was a pain in the a**! I would not recommend it at all. We sold that property and do not regret it. 

    Dan Dietz

  • Carl FischerPro Member
    Rental Property Investor · Ambler, PA · Member since 2015 · 2k+ posts · 1k+ votes
    7y

    @Russ Sandifer

    Don’t under estimate the potential problems with partners. I would Look for a non recourse loan as @Daniel Dietz suggested vs a 50/50 partner. 

  • Dan HandfordPro Member
    Investor · Lexington, SC · Member since 2018 · 779 posts · 501 votes
    7y

    @Russ Sandifer On Wednesday this week I am hosting an early morning meetup in Greenville, SC if you'd like to discuss this further. 

    Here's a link to the event on BP: https://www.biggerpockets.com/forums/521/topics/641812-multifamily-investor-nation-breakfast-networking

    I would concur with @Dmitriy Fomichenko, @Brian Eastman, and @Carl Fischer in what they are saying in that you cannot invest in your own deals with a SD-IRA.

  • Rental Property Investor · Greenville, SC · Member since 2018 · 4 posts · 0 votes
    7y

    @Dmitriy Fomichenko and @Brian Eastman Thank you both for your guidance to help steer me and others on here clear of any self-dealing. That is certainly my goal in asking the question. I believe you understood my question well and have spoken thoroughly to it. That said, please indulge me for a couple of follow-up questions.

    Brian indicated that a disqualified person cannot be involved in ANY way with the entity purchasing the asset from the plan; however, I wasn't sure if the restriction for sure applies only when the asset being sold is WHOLLY-owned by the IRA. I'm not sure if my original question was clear on the point that the to-be-sold asset would be only partially-owned by the IRA. To me, simply from a pragmatic side of things, it seems that would (or should) matter. So I ask: Does the restriction hold true even in the latter case, namely the case where the asset to be sold is currently owned by MULTIPLE parties, of which the plan is but ONE owner?

    I was imagining that such a seller situation (asset owned by multiple parties of which the plan is but one) would be considered sufficient to avoid the prospects of self-dealing between the plan and the for the benefit of (FBO) party on the basis of the following rationale: the other current owner(s) of the asset would have every reason to sell the asset at or above market/appraised value and the other current buyer(s) of the asset would have every reason to purchase the asset at or below market/appraised value, thereby preventing any kind of backdoor retirement plan liquidation advantage for the FBO party since there would be checks and balances against such behavior.

    It seems to me that the IRS could help us side-step this whole discussion by explicitly providing for the option of such transactions in cases were such an asset is sold at appraised value, as rendered by a licensed (and qualified) third-party appraisal company, thereby proving that there is no unfair advantage realized by the FBO party vis a vis his or her retirement plan.

    In sum, it seems that if the purpose is to keep the fox (FBO party) from guarding the hen house (retirement plan), if the point is to prevent self-dealing, if the point is to prevent the sale of the asset at some below-market value which gives the FBO party a backdoor retirement plan liquidation opportunity, a requirement for the transaction to happen at appraised value would seem to be a perfect check and balance. And I wondered if this concept shows up in any of the interpretative literature?

  • Brian EastmanPro Member
    Self Directed IRA & 401k Advisor · Wenatchee, WA · Member since 2014 · 2k+ posts · 2k+ votes
    7y

    @Russ Sandifer

    Any transaction, direct or indirect, between a plan and a disqualified party is prohibited. Fractional ownership by the IRA does not change the fact that value held by the IRA is being transferred to you.

    The whole purpose of an IRA is to grow the value of retirement savings by compounding tax-sheltering over time. This tax-sheltered status means that you and close family just can't touch the money or have any kind of personal benefit based on how the IRA is used - other than knowing you are growing your IRA. It is what it is, and there is no need to chip at the edges. There are plenty of ways your IRA can grow very well by not engaging in any kind of self dealing.

    You cannot buy shares of Apple in your IRA and then decide to shift that value to yourself in any fashion. Same thing with real estate.

  • Rental Property Investor · Greenville, SC · Member since 2018 · 4 posts · 0 votes
    7y

    @Daniel Dietz @Carl Fischer Would appreciate any recommendations on non-recourse loan possibilities. Thank you both.

  • Daniel DietzPro Member
    Rental Property Investor · Reedsburg, WI · Member since 2011 · 1k+ posts · 857 votes
    7y

    @Russ Sandifer there is a list of those lenders that gets shared here often. I think either @Dmitriy Fomichenko or one of the other plan providers who share on here is likely to be able to share a copy of that. 

    I myself chose to use Jason Zook at NASB, and I am sure there are many other good ones also. There ARE quite a few restrictions, which i assume vary from one to the other, like no convert duplexs (houses split in two), no pre 1940 properties, no loans under 50K and similar. 

    Our terms about 1.5 years ago were 6% fixed for 20 years with 40% down and very reasonable closing fees. I have not found commercial non-recourse lenders that will go more than 60% LTV

    We also did one with a private lender (friend) we use to pull equity in a free-n-clear property for a down payment on a new one (all within the SDIRA). That one was 75% LTV 5% for 5 years.

    Dan Dietz

  • Solo 401k Expert · Anaheim Hills, CA · Member since 2012 · 18k+ posts · 6k+ votes
    7y

    @Russ Sandifer, here is a list of lender offering non-recourse loans:

    https://www.biggerpockets.com/blogs/2810/50272-lis...

    I also personally used Jason Zook and had good experience, but you should check out each lender on the list and find the best fit for your situation. 

  • Accountant · Miami, FL · Member since 2016 · 88 posts · 30 votes
    7y
    “unrelated debt financing income”. Please look into this before finalizing any loans. If you are ok with the tax consequences then proceed with open eyes.
  • Accountant · Miami, FL · Member since 2016 · 88 posts · 30 votes
    7y
    @Carl Fischer UBIT issue and form 990-T and estimated tax payments associated with debt financing and IRA. Doesn’t mean you don’t take the loan just to be aware of the tax consequences.
  • Manassas Park, VA · Member since 2017 · 37 posts · 21 votes
    7y

    None of the experts here have mentioned in-kind distributions. I don't know if this fits your circumstances, but when you reach retirement age, you may be able to receive the property from your IRA as a distribution, without having to sell it.

  • Rental Property Investor · Greenville, SC · Member since 2018 · 4 posts · 0 votes
    7y

    I really appreciate the feedback I've received here, especially to stay clear of any gray areas with the IRA. At this point, I'm planning to move forward with just purchasing the property outright with the IRA and then managing income and expenses via a checkbook control IRA LLC for convenience (especially for the convenience of my property manager who typically handles deposits and expenses for me). I don't see how I would be able to secure non-recourse debt financing prior to closing but wondered if it's possible to do so after closing? (I get that being in a 100% cash position leaves some upside on the table but the investment has a solid return without leverage and is an emotional win as-is). If this investment has a downside, it's that it is in this Roth IRA and yet is not my most efficient investment in my portfolio. If I could restructure and bring properties from my business LLC into this Roth IRA and then buy this duplex with my business, that would be ideal but it does not seem that is allowed. Which is unfortunate.

  • Brian EastmanPro Member
    Self Directed IRA & 401k Advisor · Wenatchee, WA · Member since 2014 · 2k+ posts · 2k+ votes
    7y

    @Russ Sandifer

    If your timeline does not allow for a direct purchase by the IRA LLC with a Non-Recourse loan you have two alternatives:

    • Seek bridge financing or a "transactional loan" on a short term basis to secure the property and buy some time to get a more conventional long term non-recourse loan in place.  There are private lenders/funds out there who offer such and several are active here on BP.
    • Do a cash-out refinance NR loan after the purchase of the property.

    The terms that may apply on the longer term non-recourse loan may vary based on the above approaches, so be sure to speak with your chosen lender in advance.

  • Retirement Accounts Attorney · Southfield, MI · Member since 2017 · 3k+ posts · 1k+ votes
    7y

    @Russ Sandifer

    To learn more about the prohibited transaction rules see the following. 

    https://www.irs.gov/retirement-plans/retirement-pl...

  • Retirement Accounts Attorney · Southfield, MI · Member since 2017 · 3k+ posts · 1k+ votes
    7y

    @Russ Sandifer

    Another bank that offers non-recourse loans is Titan Bank.

    http://www.titanbank.com/

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