@Jeff Wallace
Hi Jeff,
I guess the first thing I would ask would be the amount that you have in the 401K (I mean think about it to yourself) and figure out if it's worth it over the long run (many year's to come) to pay the taxes and penalties for early withdraw now, or pay the maintenance fee for the life of the company. We had 70,000 plus in my wife's 401K when we worked with Guidant to create a new company.
I can say without hesitation that Guidant is a great company. They really delivered on everything the said they would. The attorney they provided us in Atlanta was outstanding. He knew this subject backwards and forward. We paid around 5,000 to set up the new company (Guidant did everything, all the filings with the state etc.) and we pay them 119.00 per month to continue to be the custodian of the account. We of course have to provide them with documentation from time to time to make sure we stay in compliance with the IRS. That tells me that Guidant is really on the ball, and they are concerned with making sure we're doing what we're supposed to. That's something else you need to consider, is remember the funds from the real estate (rents) must be paid to you in the form of a check (as in that's your salary). You can't simply take the proceeds and deposit them into your checking account and spend as you wish, as we do with our other properties that are not purchased with the 401K funds. Oh, also you have to maintain a separate checking account for the ROBS funds and rents received, and the rents that come in have to go into that same account. There can be no co-mingling of funds from other properties, or personal money.
It is somewhat labor intensive in the beginning to set all of this up, but in my opinion it was well worth it. After the rollover was complete, we took the funds and paid all cash for a 4 BR 2 BA home in metro Atlanta in March of 2013. Not long after closing, we were able to put a mortgage on the property and get most of that money back and moved on to the next project. We still own that property and make a very nice profit on it.
Again, I think it will come down to how much money you have in the 401K (if it's smaller than say 50,000 then it may be better to just pay the taxes and penalties) but that's something you'll have to decide. I can also tell you that when I speak to lenders about our companies (we had an LLC before the ROBS rollover) the bankers are extremely impressed with our strategy of the ROBS rollover to purchase real estate. Because many lenders have no idea (as most people outside of this space) that you can do that.
There's a little hesitation when we tell bankers that my wife doesn't work, then we explain our strategy and what we did with that 401k, then they're on board again. We continue to strive and move forward, and the ROBS was a great strategy that helped us to keep moving forward. Good luck, and let me know if you have any other questions about it.