SOLO 401K "CHECKBOOK CONTROL"

With a Solo 401(k) Plan, as trustee of the Plan, you no longer have to get each 401(k) Plan investment approved by the custodian of your account. This means that all assets of the 401(k) trust are under the sole authority of the Solo 401k Plan participant (you).  A Solo 401(k) plan allows you to eliminate the expense and delays associated with an IRA custodian, enabling you to act quickly when the right investment opportunity presents itself.

For example, Mary has established a Solo 401(k) Plan for her business. Mary is appointed the trustee of her business's Solo 401(k) Plan. Mary has opened her Solo 401(k) Plan bank account at a local bank. Mary wishes to use her 401(k) Plan funds to purchase a home from Ben, an unrelated third-party (non-disqualified person). Ben is anxious to close the transaction as soon as possible. With a Solo 401(k) Plan, Mary, as trustee of the Plan, can simply write a check using the funds from the 401(k) Plan bank account or can wire the funds directly from the account to Ben. Mary, as trustee of the Plan, no longer needs to seek the consent of the custodian or a financial institution before making the real estate purchase. With a Solo 401(k) Plan without "checkbook control", Mary would likely not be able to make the real estate purchase since seeking custodian approval would have likely taken too much time.

Investment Opportunities

With a Solo 401(k) Plan, you will be able to invest in almost any type of investment opportunity that you discover, including: Real Estate (rentals, foreclosures, raw land, tax liens etc.), Private Businesses, Precious Metals, Hard Money & Peer to Peer Lending as well as stock and mutual funds; you're only limit is your imagination. The income and gains from these investments will flow back into your 401(k) Plan tax-free. 

The following are some examples of types of investments that can be made with your Solo 401(k) Plan:

Real Estate

The IRS has always permitted a 401(k) Plan to purchase or hold real estate or raw land. Making a real estate investment is as simple as writing a check. Since you are the trustee of your Solo 401(k) Plan, you have the authority to make investment decisions on behalf of your 401(k) Plan. One major advantage of purchasing real estate with a Solo 401(k) Plan is that all gains are tax-deferred until a distribution is taken.

For example, if you purchased a piece of property with your Solo 401(k) Plan for $200,000 and later sold the property for $400,000, the $200,000 of gain would generally be tax-free. Whereas, if you purchased the property using personal funds (non-retirement funds), the gain would be subject to federal income taxes and in most cases state income tax.

Using Leverage to Purchase Real Estate with a Solo 401(k) Plan

Unlike a Self Directed IRA LLC, when a Solo 401(k) Plan buys real estate that is leveraged with mortgage financing it is exempt from paying any Unrelated Business Taxable Income (UBTI or UBIT) tax on the income or gain generated. With the UBTI tax rates at approximately 35%, the Solo 401(k) Plan offers real estate investors looking to use nonrecourse financing in a transaction a tax efficient solution.

Tax Liens

By using a Solo 401(k) Plan to purchase tax-liens or tax deeds, all income and profits are tax-deferred back into your Solo 401(k) Plan until a distribution is taken. More importantly, with a Solo 401(k) Plan, you, as the trustee, will have "checkbook control" over your 401(k) Plan funds allowing you to make purchases on the spot without custodian consent. In other words, purchasing a tax-lien or tax deed is as easy as writing a check!

Loans & Notes

The IRS and ERISA rules permit the use of Solo 401(k) Plan funds to make loans or purchase notes from third parties. By using a Solo 401(k) Plan to make loans or purchase notes from third parties, all interest payments received would be tax-deferred until a distribution is taken.

For example, if you used a Solo 401(k) Plan to loan money to a friend, all interest received would flow back into your Solo 401(k) Plan tax-free. Whereas, if you lent your friend money from personal funds (non-retirement funds), the interest received would be subject to federal and in most cases state income tax.

Private Businesses

With a Solo 401(k) you are permitted to purchase an interest in a privately held business. The business can be established as any entity other than an S Corporation (i.e. limited liability company, C Corporation, partnership, etc.). When investing in a private business using Solo 401(k) Plan funds, it is important to keep in mind the "Disqualified Person" and "Prohibited Transaction" rules under IRC 4975 and the Unrelated Business Taxable Income rules under IRC 512.

Investing in an Active Business - The Unrelated Business Taxable Income Rules

If a Solo 401(k) invests in any business regularly carried on or by a partnership or LLC of which it is a member, all income or gains allocated to the Solo 401(k) will likely be treated as an unrelated business and subject to the Unrelated Business Taxable Income ("UBTI" or "UBIT") rules pursuant to Section 512 of the Internal Revenue Code. For example, a Solo 401(k) investment into an LLC or partnership that is engaged in an active trade or business such a shoe factory; gas station, retail store or restaurant would likely be treated as an unrelated business and subject to UBTI.

The UBTI rules were enacted by Congress in the 1950s t o prevent tax-exempt entities, such as charities, from competing unfairly with taxable entities. Since an 401(k) is treated as a tax-exempt entity pursuant to Internal Revenue Code Section 401, the UBTI rules apply to Solo 401(k) investments.

Most 401(k) investments are not subject to the UBTI rules because of the many exceptions available. For example, dividends, interest, annuities, royalties, capital gains, most rentals from real estate, and gains/losses from the sale of real estate are all excluded from the application of the UBTI tax. However, rental income generated from real estate that is "debt financed" loses the exclusion, and that portion of the income becomes subject to UBTI.

A Solo 401(k) subject to UBTI is taxed at the trust tax rate because a 401(k) is considered a trust pursuant to Internal Revenue Code Section 401. For 2011, a Solo 401(k) subject to UBTI is taxed at the following rates:

Precious Metals & Coins

A Solo 401(k) Plan is permitted to invest in certain platinum coins as well as certain gold, silver, platinum, or palladium bullion provided the coins are held in a financial organization.

The advantages of using a Solo 401(k) Plan with "checkbook control" to purchase precious metals and/or coins is that their values generally keep up with, or exceed, inflation rates better than other investments. In addition, the metals and/or coins can be held in the name of the 401(k) Plan at a financial organization (at any local bank) safety deposit box eliminating depository fees.

Foreign Currencies

The IRS does not prevent the use of 401(k) funds to purchase foreign currencies, including Iraqi Dinars. Many believe that foreign currency investments offer liquidity advantages to the stock market as well as significant investment opportunities.

Purchasing foreign currency, such as the Iraqi Dinar, with a Solo 401(k) Plan is as easy as writing a check. As trustee of the Solo 401(k) Plan, you will have "checkbook control" over your 401(k) Plan funds, providing you with the ability to make investments without requiring custodian consent. In addition, the foreign currency notes, including Iraqi Dinars, can be held in the name of the 401(k) Plan at a financial organization (any local bank) safety deposit box eliminating depository fees.

By using a Solo 401(k) Plan to purchase foreign currencies, such as the Iraqi Dinar, all foreign currency gains generated would be tax-deferred until a distribution is taken. In the case of a Solo 401(k) Plan, all foreign currency gains would be tax-free.

Stocks, Bonds, Mutual Funds, CDs

In addition to non-traditional investments such as real estate, a Solo 401(k) Plan may purchase stock, bonds, mutual funds, and CDs. The advantage of using a Solo 401(k) Plan with "checkbook control" is that you are not limited to just making these types of investments. With a Solo 401(k) Plan with "checkbook control" you can open a stock trading account with any financial institution as well as purchase real estate, buy tax liens, or lend money to a third-party. Your investment opportunities are endless!

What Types of Investments are Not Permitted Using a Solo 401(k) Plan?

The Internal Revenue Code does not describe what an IRA can invest in, only what it cannot invest in. Internal Revenue Code Section 4975 prohibits Disqualified Persons from engaging in certain type of transactions. The purpose of these rules is to encourage the use of 401(k) funds for accumulation of retirement savings and to prohibit those in control of retirement funds from taking advantage of the tax benefits for their personal account.

Who is a "Disqualified Person"?

The IRS has restricted certain transactions between the Solo 401(k) Plan and a "disqualified person". The rationale behind these rules was a congressional assumption that certain transactions between certain parties are inherently suspicious and should be disallowed.

The definition of a Disqualified Person (Internal Revenue Code Section 4975(e)(2)) extends into a variety of related party scenarios, but generally includes the 401(k) Plan participant, any ancestors or lineal descendants of the 401(k) Plan participant, and entities in which the 401(k) Plan participant holds a controlling equity or management interest. In essence, under Code Section 4975, a "Disqualified Person" means:

Note: brothers, sisters, aunts, uncles, cousins, step-brothers, step-sisters, and friends are NOT treated as "Disqualified Persons".

Prohibited Transactions

Solo 401(k) prohibited transactions are listed in Code Section 4975; prohibited transactions are any direct or indirect:

Examples of Prohibited Transactions

The following are a number of common Solo 401(k) Plan related transactions that are prohibited pursuant to Internal Revenue Code Section 4975:

Tax-Free Gains

With a Solo 401(k) Plan "Checkbook Control" structure, all income and gains from investments will generally flow back to your 401(k) Plan tax-free. Because a 401(k) Plan is treated as a tax-exempt entity pursuant to Internal Revenue Code Section 401, all income and gains generated by the 401(k) Plan will flow-through to the 401(k) Plan account tax-free!

For additional information on the advantages of using a Solo 401(k) Plan with "checkbook control" to make investments, please contact one of our 401K Experts at 800-472-0646.