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In life there are a lot of things we learn by accident, which can be very beneficial to us. Sometimes understanding these processes can take a while. Sometimes after proper explanation …BLAM, you get it. That is exactly what happened to me. When I first heard about the topic, I will discuss in this E-book, it was perplexing, however, I knew that it could reap huge rewards in the future. It took a while for me to understand the process. I remember trying to tell a buddy who owned an apartment building about _________ and what it could do for him. I remember getting it all confused (like telling someone a good joke, but while you are trying to say the good joke, in mid sentence you realize that you don’t remember it all and it is not coming out right, so you just say forget it because you are screwing the joke up). Fortunately, by mistake I came across the company Pensco Trust who has educated me on this great opportunity of____________. I am considered one of their “Preferred Professionals.” My learning curve is your benefit. Enough with my teasing games, the purpose of this E-book, is to educate you on Self Directed IRAs. So buckle up!
This publication is made to provide basic information in regard to Self Directed IRA’s. It is presented with the understanding that I am not engaged in rendering accounting or legal advice. If you need legal advice services of a proficient professional should be contacted. I can not in any way guarantee that this material will be properly used for the purposes intended and I assume no responsibility for its correct and proper use.
We all know that Social Security (SS) is struggling and the money there will eventually disappear. Prior to 1935 there was no personal SS. All that existed were people saving their money in their bank/under the mattress. In 1935 SS was created. Remember that this was the same time period of the Great Depression. Keep in mind the life expectancy back then was like 62 years old. Now it is 76. Baby Boomers make up a huge portion of the population. Baby Boomers are retiring everyday. You want some hard facts? Well according to Research Corporation Study: The New Landscape of IRA Rollover © 2005 BISYS Retirement Services.
o The first of the baby boomers reached age 59.5 in July 2005
o 4 million more will reach age 59.5 each year
o 24 million people will reach age 65 by 2010
o 55% plan on to work after “retirement”
Now on the flip let’s say there was no problem with SS. Have you ever talked to someone who gets SS checks? They don’t get a lot of money. It is sad sometimes. I am not trying to offend anyone, but the majority of the older people you see at Wal-Mart greeting you and marking your receipt didn’t have a “nest egg” to rely on when they “retired”. The topic I will discuss will prevent that from ever happening to you and I.
1974 congress created IRA (Individual Retirement Account) to supplement Social Security. We know these are programs to help shelter money away for tax benefits. Typically people go after the traditional investments. We always hear about stocks, bonds and CD’s. Yes all investments have risks, but the thing about these investments is that you can not affect the outcome of the business/your return. You are a spectator, watching the game. Also, you can’t use leverage (an example of using leveraged will be discussed later). Also, with stocks if any little blip in market occurs, like oil, war, scandal, etc. your value could go down. Real estate does go up and down but generally you don’t lose all of your money in worst case scenarios. Real estate appreciation has kept pace or exceeded inflation. It is a cycle. When it goes down, the value does not go down instantly (like Enron).
Self Directed IRA (SDI) an overview. Now I am not bashing stocks, I have them, if you talk to any financial planner, they will tell you to always be diversified in your investments. This is what SDI does for you. Ideally you should have SDI, stocks, bonds etc.
SDI has been a well kept secret. Why? I think it is because of ignorance, and I also the folks on Wall Street don’t benefit. A broker at an investment company will not tell a person about it, because they can’t make money off of the transaction (let alone having them understand how it works). The last reason is because there are “professionals” who don’t have a clear understanding on its use.
To get a SDI, you would either have to go through an Administrator, or a Custodian.
What is an Administrator? Banks, brokerage firms (like Charles Schwab) and insured credit unions.
What Is A Custodian?
There are very few self-directed IRA/401k custodians in the United States. In order to be a custodian for self-directed products, the custodian is known as a “passive custodian.” This simply means that they are obligated by law to provide only custodial and administrative services for the qualified plan. They can provide NO investment advice. This tremendously reduces the fees associated with traditional investments because you, the investor, make all of the investment decisions. They are also FDIC insured.
What is the role of the custodian
o Holds your IRA assets
o Performs all IRA transactions
o Keeps all IRA records
o Provides all IRS required reports
o Keeps IRA plan in compliance
o Provides access online access
There are only three things your SDI can’t invest in and they are
o Collectibles/antiques
o Life insurance
o Stock of a sub-chapter “S” corporation (these are companies that are traded publicly on the stock market)
As long as the transaction is for investment purposes and you have not created a “prohibited transaction” (will discuss later) the list of investments are endless.
The beginning of a long list of real estate you can buy with your SDI
o Foreclosures, Options, Pre-construction, raw land, apartments, offices, strip malls, mobile homes, public storage, any type of investment property
o Trust deeds/mortgage notes
o Privately held C-Corp stock, LLC membership
.
The rules on prohibited transactions
o Cant buy from or sell to a disqualified/prohibited person
o Cant make personal use of property
o Cant use SDI as collateral for personal loan
Personal use prohibitions
You can’t personally use a vacation home. Even if you rent it out for 354 days and spend one day in it, this is illegal. You can’t perform maintenance on the property. You can hire a maintenance crew using the money coming out of your SDI, but you can’t physically work on the property. You also can’t hunt on raw land, dock boat at a SDI owned boat slip. There was a person, who worked with Pensco, that bought a specific area of a water fishing spot in Alaska. The person, couldn’t fish there, so she leased out the area to other fishermen and received profit.
More on disqualified persons
You can’t buy from a person providing services to the investment. It has to be a clean slate. It can’t be business between employer and employee. If you have your SDI in an LLC and you want to buy property, you will not be able to if you own more than 50% of the company. You can’t buy/sell to a member of your family including spouse, ancestor, lineal descendant and any spouse of a lineal descendant. Meaning, not you parents, children, your son in law etc. But, you can buy/sell to a sibling. There can’t be a sale/exchange/leasing of any property or providing a loan between a plan and a disqualified person. Lastly, you can’t buy something you already own (SDI can’t be used for funds to pay off your mortgage. There should be no perceived direct or indirect personal benefit to the account owner).
Basic rules
o Can’t involve the account holder, his/her spouse a lineal ascendant/descendant of family nor the spouses of your children and you can’t use SDI funds to pay off a personal mortgage
o Can’t make personal use of property (must be for investment purposes only)
o Can’t personally guarantee the loan for your SDI nor use the SDI as collateral for a personal loan
o Can’t work for or take income from an SDI investment
o Can’t have your spouse, nor your family members (your siblings are ok) own the property prior to its purchase by your plan
o Can’t have your business lease or be located in or on any part of the property while it’s in your plan. You may receive any property as a distribution from your plan as a retirement benefit
What transactions are prohibited?
The following are defined as prohibited transactions when they involve the account holder:
o Borrowing money from the SDI
o Selling property to the SDI
o Receiving unreasonable compensation for managing assets for the SDI
o Using the SDI as security for a loan
o Buying property for personal use with the SDI
o Collectibles/antiques
o Life insurance
o Stock of a sub-chapter “S” corporation
50% rule
If a disqualified person(s) owns 50% or more collectively of an entity, then the SDI can’t engage in a transaction with the entity because the company is considered a disqualified person.
Using IRA as collateral
You can’t use your SDI as collateral for a loan. If you will get a loan it must be an unsecured loan. If you default in paying the loan, the lender can’t go get the money out of your IRA, nor can they go after personal assets.
Any type of prohibitions have penalties, if you violate them. SDI is no different. Here are the consequences if you do not comply:
o Loss of IRA status resulting from prohibited transaction
o Loss of tax exempt status
o Income tax on account value
o Penalties and interest
o Possible audit to determine extent of prohibited transactions
If you really want more information on the rules check out:
o IRS code 4975
o UDFI/UBTI: IRS code 598
o Department of Labor (DOL) 2004-8
Tax court cases
o Swanson 1997
o Rollins 2004
o Rousey v. Jacoway 2005
Ways to invest by using your SDI
o Property purchase all cash
o Property purchase using a loan (NOTE this has not always been the case where you can get a loan from a bank for your SDI. These past couple of years a few establishments are offering loans to SDI. I have those contacts, contact me and I will explore options for you)
o As a member of an LLC or “C” Corp.
o As a lender on a trust deed (mortgage note)
o As a partner in a joint venture
o As a Tenants in Common T.I.C. member (if any of the terms I use are unfamiliar to you, look them up online)
o Make a private loan to an entity or person (hard money loans)
To give you ideas of what investors have bought through Pensco:
o Largest US massage school
o Cypress tree farm in Costa Rica
o Fish farm in Salinas, CA
o Interests in movies, plays
o Condo in Lithuania
o House on a private lake in Colorado
o Thoroughbred race horse
o Nudist resort in Virgin Islands
o Over 35 U.S. banks
o Napa Valley B & B
o Biotech company
Pensco’s top investor success story is going to amaze you on the potential your SDI can have. In March of 1999, four men opened up SDI accounts. They each invested individually and through their IRA’s in a company they were starting. They brought in other unrelated investors. That company is bought out a couple of times. The company goes public and sells out in June 2002. Well how much did they make? CEO made $34 million (12,000% return). Chief scientist made $22 million. CFO make $17 million. Marketing VP makes $8 million (4,000 return) What is better than that? They all invested $2,000 through their IRA’s except the CEO who invested $1,800. Pensco explained the features of the 1 year Roth IRA and they all chose to invest with a Roth IRA. If the CEO gets an average return of 12% until he is eligible to withdraw tax-free at 59.5 he will have $1 billion, $100 million tax free! Yeah that is right…show me the money!
Let’s compare
Real Estate Investing – with SDI
o Tax deferred growth on income and cap gains
o No 1031 requirement!
o No annual tax reporting
Taxable investments non SDI
o Tax deferred cap gains (if 1031)
o Tax on net earnings
o Annual reporting required
How it works
You have an account with Pensco (you can roll over your current IRA account to them) you tell them what you want to invest in, they do all of the paper work, make out the check and now it is in your trust account. All money that is needed for expenses and all profits go into/taken out from the trust account. The title of the property in your IRA will be held with Pensco Trust as follows: “Pensco Trust Custodian, FBO (client name) IRA, (Acct #). All documents will be reviewed and initiated by the you (the IRA owner) and signed by Pensco Trust.
Introducing SDI on steroids in the neck…Solo 401(k)
A solo (k) is a combined salary deferral and profit sharing retirement plan for sole proprietors, small business owners with no employees (other than part timers working less than 1,000 hours per year or their spouses).
Roth contributions can increase tax free $15,000 to %20,500 per year or 30k to 41k per married couple (for 2007). Unlike a Roth IRA, there are no income limitations placed on the contributor. You could be a zillionaire and it would not matter! Currently a single person making over 110k can’t contribute to their Roth married couple is 160k.
Who can benefit from Solo (401)k
o Real estate brokers
o Consultants
o Contractors
o Lawyers
o Electricians
o Any sole practitioner
o Even if you work full time for an employer and have a business on the side where you are a sole proprietor you can establish a solo K
The difference is…
o You can borrow up to 50k (or up to 50% of balance, if less) from your Solo 401 k
o You can invest in life insurance
o You can invest in “S” corporations
o You can avoid UDFI and capital gains UBIT (UDFI and UBIT will be discussed later) when using leverage to buy real estate
o A portion of your savings can grow tax free for life
o You can put away more money faster with larger contributions
o No income cap on contributing to the Roth component
o Above 50 year old employee has the option to put up to $20,500 per year away, to grow tax free
Why appealing
o Allows the sole proprietor funds to grow tax free
o While Roth IRAs allow similar contributions they are limited to $4,000 in 2007 ($5,000 if over 50), and to those earning annual gross income of less that $110,000 for that year
o You can increase tax free growth opportunities by also contributing to a Roth IRA ($4,000/$5,000) in addition to the Solo (k) (15,500/$25,000), if you are eligible (check with Pensco for details)
o A married couple in business together can put up to $51,000 ($25,500 each ) per year of after tax money into retirement accounts that will grow tax free for their lifetimes and those of their heirs (including $5,000 Roth IRA contributions) and another $59,000 ($29,500) each that will grow tax deferred. That is a total of $110,000 as a couple of which $51,000 will grow tax free (assumes each is over 50 and earns less than $100,000
o And there is no income limit on contributions
o May roll pre existing plans and IRAs into it
Types of purchases of SDI
All cash
Your SDI buys one property all cash. No debt, LLC, and partners. When you do this your SDI needs to have enough funds to cover purchase price, all closing costs, custodial fees and ongoing property expenses. If you run out, you can loan your personal money to your SDI (with interest and principal).
Multiple SDI – All cash T.I.C.
SDI may belong to anyone – even prohibited people. All SDI go on contract, and on title, as “tenants in common.” Ownership percentage must be identified and all costs and proceeds prorated correctly according to these percentages.
Multiple Parties – IRAs & People all cash T.I.C.
Same as multiple IRAs, as long as there is no loan (as an all cash deal) it does not matter who the SDI belongs to, or who the people are. All names must be on contract and title for unique percentages.
All cash
Buy/sell, with/without, friends/family is by far the easiest and most common transaction. When this happens all income comes back to SDI, so having a1031 exchange is not required to defer taxes. The money in your trust account is also used to pay any expenses incurred. Real estate investment related expenses are paid out of the SDI.
Getting a loan to buy
In the past there were NO banks lending to SDI. Only until recently a few banks in the nation offer this service. The loan that is offered is a non-recourse loan. This is great news, because now investors could use leverage.
When you get a loan for your SDI you:
o Can’t guarantee the loan personally.
o Can’t co-invest with your IRA.
o Pay the tax on any income or capital gains derived from leverage.
o Increase the returns and growth of your SDI two to three times.
What is a “non recourse loan?”
o You are not personally liable for repayment of the loan. In the event of a default/foreclosure the lender can only recover the property and your equity.
o Typically requires 30-35% down payment. If there is low cash flow or the condition of the property is bad then they may require a larger down payment.
Non recourse loan process
o After setting up the SDI, it will typically close in 30 days.
o Cash out refinance: funds are distributed back into the SDI.
THERE IS NO PRE PAYMENT FOR A NON-RECOURSE LOAN!
Property Eligibility
o Single family residential
o Condo’s (100% complete, 33% or more sold, and HOA turned over by developer)
o Duplexes
o 4-plexes
o Multi-family (5 or more)
o Commercial property: including retail, warehouses, and office buildings
Ineligible properties include:
o Residential with large acreage
o Raw land
o Farms
o Manufactured homes
o Hotels, condo-hotels
o Co-ops, timeshares
o Senior or assisted living facilities
o Non-franchise restaurants
o Entertainment properties
o Mini-storeage
Requirements for debt financing must be verified for purchase along with reserves (10-20% loan amount).
Documentation required for loan approval:
1. Completed loan application
2. Most recent asset statement verifying IRA assets for purchase and reserves.
3. Purchase sales contract
4. Acceptable real estate appraisal for the property to be financed. The appraisal must come from lender.
5. Copy of drivers license
6. Property insurance should read the IRA/LLC as the insured
Income requirements for homes
o The financed property must generate sufficient net operating income to exceed debt service payments by:10%single family (less then 10% or negative cash flow is acceptable with sufficient reserves on SFR). For 2-4 unit properties it is 10-15%
o IRA assets must be verified for purchase along with reserves
How the closing process works:
1. Title company prepares closing documents.
2. SDI owner initials for approval.
3. Originals sent to Pensco for execution by the tile company or broker.
4. Pensco signs, notarizes and returns package. They overnight and wire balance of funds for closing.
5. Title company forwards recorded grant deed to Pensco.
6. Through your trust, you now own the property.
Another way to invest using IRA
This is a true story from a Pensco client. One investor wanted to buy a property in San Francisco. They buyer didn’t have all of the money for a down payment. So, he approached his friend and asked about him if he was interested in earning a certain percentage return on his IRA. He agreed. So, the buyer took his portion and combined it along with his friends SDI, to purchase the property. His friends SDI issued him a second on the property. This created a “win” situation for everyone. The buyer gets the property. His friend gets a great return on his IRA (that is secured by real estate) the sales agent wins because the deal closed. The owner of the property is happy, because they sold the property. The bank, is happy because they are making a return by giving a loan. All of this is possible because the SDI was used.
There was another person, who used his SDI to buy pre construction property. In Las Vegas, there was a developer who was forming a community. The investor approached the developer and solved a problem for them. Apparently there were some fall outs with buyers. The investor, said (paraphrasing) “I will buy any homes that fall out of escrow for a discount.”
If you would like to read upon an investor who used their SDI, look up: Time June 14th 2005. Investor used $195,000 to invest in property on Marco Island FL. Sold resulted in a $500,000 profit going directly to IRA
Rental property purchases
Question:
I want to purchase a rental property for $100,000 can I use:
o A. $30,000 of my IRA funds
o B. $65,000 of my personal funds
o C. $5,000 loan from my brother to do this?
o D. All of the above
o Answer: D
In the begging of this E-book, I expressed that using SDI has been kept a secret. One of the reasons is because of misinformation from “professionals” is from CPA’s. Some CPA’s say not to use an IRA to invest in real estate because:
o You will lose tax benefits e.g. depreciation (not quite)
o Using SDI “destroys” tax deferred compound growth in IRA (wrong)
o You have to pay ordinary income tax versus capital gains tax at the end of the line (true just like any other IRA investment)
Some CPA view points do not take into consideration the following:
o They do not address need for diversification in the retirement portfolio to hedge against other assets
o Broadly implies that even if you know that you can get better results investing in real estate through your SDI you shouldn’t do it
o It is IRRELEVANT if real estate out performs other IRA investments
o IGNORES the facts that 44% of net worth in US is in real estate
o Does not recognize that after tax yield is the primary goal of the investor
Unrelated Business Taxable Income (UBTI)
If your SDI produces income from activity not “substantially related” to the exempt status UBTI comes into play. The purpose of UBTI was to alleviate unfair competition by exempt organizations with taxable enterprises. Basically when you conduct business and it is not passive income, you come across UBTI. Further explanation; if your SDI is going to open up a restaurant, you are going to have ordinary income. The IRS feels that is fair that you pay tax on the money you make everyday. Because it is not fair for you to open up a restaurant and for someone else to open up a restaurant down the street, but you don’t pay tax. If it is “ordinary income” UBTI applies. If it is passive income UBTI does not apply, such as rent, interest and capital gain.
Unrelated Debt Financed Income (UDFI)
Income generated by activity that had debt financing. Tax is applied to that portion of gain/income that is debt financed. Most “passive” investments income such as rents from a property are normally excluded from taxes, but such investment income is going to get taxed if derived from debt financed property (UDFI). Basically, if you buy a property for 5 million. You have your SDI, put up 2.5 million and you get a loan for the other 2.5 million. Well the gains you get from the borrowed 2.5 million from the bank will get taxed (UDFI). You will not get taxed on the portion that comes out of your SDI.
