CHAPTER 14 – Annuities
& Employment Retirement
During the client’s employment phase savings and compensation
benefits are often accrued, for payment at or after retirement.
This can occur with (1) individual income deferral
accumulations (e.g., an IRA), or
(2) an employer qualified retirement plan.
In permitted situations these accumulations can be accrued on
a “pre-tax basis” (i.e., currently deducted or excluded from gross income, with
zero-basis for account assets).
Deferred/Retirement
Benefits - Examples
·
Commercial
annuities – individually purchased
·
Qualified
pension & profit-sharing plans (& distributions at retirement/death)
·
Nonqualified
executive deferred compensation arrangements
·
Stock
options-ISOs & nonqualified
·
Individual
retirement accounts (IRAs), including “Roth IRAs
·
Death benefit
only plans from the employer
Retirement &
Taxation of Deferred Payments p.2
After retirement various deferred benefits may be paid on a
periodic basis.
For income tax purposes the issues will be:
·
the timing
of the recovery of any cost basis, and
·
the amount
of includible gross income.
In the qualified retirement plan context (where contributions
were on a pre-tax basis) the entire distribution often will be includible in
gross income.
Annuity Payment
Options
p.2
At the time annuity payments commence payments can be
made for:
·
Term certain
·
One life
annuity
·
Two life
annuity (e.g., joint and survivorship)
Note: Amounts might be withdrawn before annuity
payments commence.
What income tax treatment? Cf.,
life insurance policy borrowings.
Gross Income Inclusion
of Annuity Income p.4-5
Code §72 provides for determining (1) the “investment in the
contract” and (2) the “expected return” to create an “exclusion ratio” for each
payment received. §72(b).
Therefore, the same portion of each future payment is
included in gross income.
Is this approach actuarially sound? What are other options
for tax basis recovery in the annuity context? Allow tax basis recovery
first?
See §72(d) for qualified plan recovery & tax basis
recovery. Cf., §72(b).
Additional income tax
elements
What is a “refund feature”? What is the tax impact of a
“refund feature”? See Code §72(c)(2) requiring an adjustment.
What if the annuitant dies prior to end of life expectancy
period? See Code §72(b)(3) enabling an income deduction (on last tax return
for individual) for the unrecovered tax basis.
What if the annuitant outlives the life expectancy period?
See Code §72(b)(2) re inclusion of the entire amount after all tax basis recovered.
Required Minimum
Distribution Rules p.10
What is the purposes of the “required minimum distribution”
(RMD) rules (starting at 70½, subject to certain exceptions)? P.11
How determine the required distribution?
What if successor owners receive benefits – what is the
required payout period?
Note exception (described in Notice 2009-9, p.12) re RMD
waiver for 2009 (only). Why?
Estate Tax Inclusion
of Annuity – Code §2039
For a one-life annuity on the life of decedent – no residual
value and no asset transfer occurs at the time of death.
For a joint & survivor annuity – what is the value of
the survivor benefits in gross estate? And, who contributed to obtaining those
survivorship benefits? See Code §2039(b).
Marital deduction available? §2056(b)(7)(C).
Tax basis step-up at death (under Code §1014)? No, an IRD
item. Code §691.
Qualified Retirement
Plan Benefits p.14
What are the payout options at retirement?
What is the relevance of the Retirement Equity Act? See Code
§401(a)(11).
What value is includible in the deceased employee’s gross
estate?
Is a (gift tax) marital deduction available, including a QTIP
election? See Code §2523(f)(6), including subsection (D), (p.18), re estate
tax, a pre-deceased donee spouse, & no §2044 inclusion.
Community Property Law
Applications p.18
Community property is a local law concept – therefore
ownership is defined by applicable state law. But, what about when the property
interest (qualified plan benefits) is defined by federal law (ERISA)?
Allard v. Frech (and PLR 9018002) that under Texas law the
non-employee spouse has a community property interest in the employee spouse’s
qualified plan benefits. Cf., Ablamis case (9th Cir, p.23) re federal
preemption & surviving spouse has no interest at death.
Boggs v. Boggs,
U.S. Sup. Ct. P.23
Facts: He was employee; 1st wife died; 2nd
wife survives and she asserts right to plan benefits (to detriment of 1st
marriage children).
Does ERISA preempt community property rights – with result
that 2nd spouse is entitled to all plan benefits (& not his
children)? Is the ERISA objective to benefit surviving spouse?
Dissent: ERISA does not preempt (& nullify) community
property law rights.
Necessity of a Proper
Beneficiary Designation
Egelhoff case (p.43) – designation of ex-spouse as beneficiary under
plan – not changed after divorce, but state law provided for revocation of
designation on divorce; No, US Sup. Ct. says ERISA preemption here.
Kennedy case (2009) (p. 44) – even a waiver of benefits by
the ex-spouse does not preclude payment to ex-spouse if designation
document is not changed as of death of employee.
What is the plan administrator to do?
Executive Deferred
Compensation p.45
Nonqualified deferred compensation.
Deferral during lifetime is to be accomplished consistent
with requirements specified in Rev. Rul. 60-31, i.e., contractual, unsecured
benefits & not funded (including in escrow).
Note, “rabbi trust” option (cf., “secular” trust).
Relevance of Code §409A?
Deferred Compensation
and Estate Tax p.47
Inclusion required in the gross estate for the amount
receivable under a non-qualified deferred compensation arrangement. Code
§§2033, 2039.
Distribution is income in respect of a decedent under Code
§691 to recipient.
How direct this asset to the beneficiaries? To tax effect to
private beneficiaries? Direct proceeds to charity?
Stock Options
p.48
Types of stock options: ISOs and NSOs.
What value is includible in the gross estate?
Who should be the beneficiary?
Who should exercise the option?
What income tax treatment arises upon disposition of the
option or option stock?
What is the capacity to borrow to enable the exercise of the
options & stock purchase?
Incentive Stock
Options
p.48
No gross income inclusion (1) at time of grant of option or
(2) upon exercise.
Capital gains event when stock subsequently sold (but two
year holding period, waiver at death).
No ISO assignment during life, so no gifting opportunities.
Basis step-up at death (p.48)?
Nonqualified Stock
Options p.49
Value of option in gross estate at death.
Transfer option by gift during lifetime? Gift as value of
the option right.
Death of optionee before exercise, income tax liability to
estate of employee.
Rev. Rul. 98-21 (p. 50) – completed gift only when the
required services are performed. See Rev. Proc. 98-34 (p.52) re valuation.
Individual Retirement
Accounts p.55
Rev. Rul. 92-47, p. 56; Entire balance isdistributable to
child.
Distribution is IRD to receipient.
Possible transfer of account interest to charity, to achieve
what objectives? P.59.
The “Roth” IRA
p.60
No deduction at the time of contribution but no inclusion
upon subsequent withdrawal.
Death Benefit Only
Plans
p.61
Does employee have benefits to be connected with this plan?
Therefore, apply a retained life interest analysis to the survivorship
interest.
But, if no pre-death interest of the employee?
See, Levin case, p. 61.
Social Security
Benefits
p.69
Social security survivorship benefits not includible in the
estate of the deceased (employee) spouse.