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Beneficiary Disclaimer—Is it All or Nothing?

“One of my clients is the beneficiary of an IRA and may want to disclaim the assets—at least in part. Could she do a partial disclaimer?”

ERISA consultants at the Retirement Learning Center Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings plans, including nonqualified plans. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from New Mexico involved disclaiming an inherited IRA.

Highlights of Discussion
According to Treasury regulations, a beneficiary may disclaim a whole or partial interest in inherited property (e.g., an IRA or retirement plan account balance) and be treated as if he or she had never had rights to the property [IRC Sec. 2518(b)]. By executing a “qualified disclaimer” of benefits, the disclaimant effectively relieves herself of any tax consequences of receiving (and potentially gifting) the property that would have otherwise applied.

Disclaimers, typically, are used as a tax planning tool.  Therefore, consultation with a tax and/or legal advisor is essential. Individuals may also choose to use a beneficiary disclaimer as a pseudo legacy planning tool and disclaim their beneficial interests so that others may receive the assets. This usage is limited by the qualified disclaimer rules, which require that the disclaimant not be allowed to choose to whom the disclaimed assets will eventually pass. That is another good reason to speak with a professional advisor regarding the specifics of the situation.

A beneficiary disclaimer must be “qualified,” which means it must meet the following criteria.
1. It must be in writing.
2. It must be irrevocable.
3. The disclaiming party must give the written disclaimer to the holder of the property’s legal title (e.g., the IRA or qualified plan administrator) not later than nine months after the later of
• The death of the original owner (e.g., IRA owner or plan participant), or
• The day on which such person attains age 21.
4. The disclaimant may not have accepted the disclaimed interest or any of its benefits.
5. The disclaimed interest shall pass—without direction on the part of the disclaimant— to any remaining beneficiaries.
6. The disclaimer must meet all requirements of applicable state law

A beneficiary of an IRA or retirement plan account balance that properly disclaims inherited assets during the period between the IRA owner’s or plan participant’s death and September 30 of the year following the year of death will not be considered a designated beneficiary for distribution purposes [Treasury Regulation (Treas. Reg.) 1.401(a)(9)-4, Q&A-4].

Regarding disclaimers of a partial interest, pursuant to Treas. Reg. 25.2518.3, it is possible for a beneficiary to disclaim less than an entire interest in property. The key to a valid partial disclaimer is the ability to identify a “separate interest” in severable property. Severable property is property that can be divided into separate parts each of which, after severance, maintains a complete and independent existence. For example, a beneficiary of shares of corporate stock may accept some shares of the stock and make a qualified disclaimer of the remaining shares. Because the rules are intricate, guidance by tax and/or legal advisors is recommended.

Conclusion
A qualified disclaimer is an irrevocable refusal by a beneficiary, including a beneficiary of retirement assets, to accept an interest in property pursuant to IRC Sec. 2518(b). A beneficiary can refuse to accept her entire interest in property or a partial share under certain circumstances. The nuances of beneficiary disclaimers are many. Therefore, anyone interested in executing a qualified disclaimer is cautioned to seek the guidance of an experience tax and/or legal advisor for his or her specific situation

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Filing Form 5500 Without an Audit Report

“My client is afraid the audit report for his 401(k) plan will not be complete by the October 15th extended filing deadline. Can he file Form 5500 without the audit report by the deadline, and provide the audit report later?”

ERISA consultants at the Retirement Learning Center Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings plans, including nonqualified plans. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from West Virginia involved filing a Form 5500, Annual Return/Report of Employee Benefit Plan.

Highlights of Discussion

The Department of Labor’s (DOL’s) EFAST2 electronic system will accept a Form 5500 filing without the independent qualified public accountant (IQPA) audit report attached, however the DOL will treat the submission as an “incomplete filing and [it] may be subject to further review, correspondence, rejection, and assessment of civil penalties” (see Q&A 25 of FAQs on EFAST2 Electronic Filing System).

The guidance goes on to state that filers must correctly complete Schedule H, Part III, line 3 regarding the plan’s IQPA report. That means your client will only be able to fill in the information on 3(c) Name and EIN of the IQPA. Lines 3(a), (b) and (d) would not apply in this case and must be left blank. If your client files Form 5500 without the required IQPA report, he or she should correct that error as soon as possible.

Excerpt from Schedule H, Form 5500

 

Without the required IQPA report, the filing is incomplete and the DOL may (and likely will) reject the filing pursuant to ERISA Sec. 104(a)(5). If your client receives an official rejection letter or notice from the DOL, he or she has 45 days to resubmit the filing correctly [see ERISA Sec. 104(a)(5)] . Failure to submit a corrected filing allows the DOL to issue a notice of intent to assess a penalty. Note, there is a 30-day grace period to ask for waiver of the penalty due to reasonable cause [DOL Regulation 2560.502c-2(b) & (e)].

The DOL can assess a penalty of up to $2,400 a day for each day a plan administrator fails or refuses to file a complete report (ERISA Sec. 502(c)(2) and DOL Reg. 2560.502c-2). The IRS may separately assess penalties per the SECURE Act, effective for returns due after December 31, 2019, the IRS late fees are $250 per day up to $150,000. Both agencies could waive or abate those penalties if the plan sponsor can establish “reasonable cause” for the late filing.

The DOL’s Delinquent Filer Voluntary Compliance Program (DFVCP) encourages voluntary compliance with Form 5500 filing requirements and gives delinquent plan administrators a way to avoid higher civil penalty assessments by satisfying the program’s requirements and voluntarily paying a reduced penalty. Eligibility for the DFVCP is limited to plan administrators who have not been notified in writing by the DOL of a failure to file.

Conclusion

The DOL will accept a Form 5500 filing without the IQPA audit report attached, however the agency will treat the submission as an incomplete filing, subject to penalties if not timely corrected and resubmitted.

 

 

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