…That Your Financial Advisor Will NOT Tell You.
Did you know that you CAN invest IRA assets into real estate? Did you know it is not against the law to do it? Well, yes, you are allowed to invest in real estate in your IRAs. And, no, it is not against the law. Actually, the IRS does not have a tremendous number of restrictions on the type of investments, generally. Sometimes it makes lots of sense to invest in real estate. Then again, sometimes it does not. It really depends upon the circumstances.
For discussion purposes, lets assume it does make sense in your specific circumstance to invest your IRA money into real estate assets (though your advisor is probably saying it may be against the law to put real estate in an IRA). This list will educate you about the specifics — and dos and don’ts. Here goes (the list involves IRAs but it, generally speaking, also applies to 401(k)s which have the same regulatory issues as well).
10) Not understanding the “self-directed” part of self-directed IRAs.
Unlike more traditional brokerage style IRAs, self-directed IRAs do not come with any tax, legal or investment advice, nor do self-directed custodians and third party administrators offer or endorse investment products. Self-directed means just that — it is self-directed and you must find your own investments and decide how you want to structure those investments. If you make a million dollars in your self-directed IRA all the glory belongs to you, but if you lose everything you have there is no one to blame but yourself.
9) Not investing in what they know best, but rather investing in something they know nothing whatsoever about.
One of the primary benefits of a self-directed IRA is that it allows you to invest in what you know best, especially if that is not the more traditional IRA investments like stocks, bonds, mutual funds or annuities. Some people get very excited about the idea of self-direction and invest in something they know nothing about, which often leads to an investment disaster. Most of my mistakes in investing have been because I have strayed from what I know how to do best.
8) Not understanding the disqualified persons and prohibited transaction rules.
Disqualified persons are those persons who are deemed to be too close to make a transaction within your IRA an arms-length transaction, which means these persons cannot enter into transactions with your IRA nor can they benefit from those transactions, either directly or indirectly. Prohibited transactions are what your IRA cannot do with any disqualified person. The penalty for entering into a prohibited transaction is DEATH (of the IRA that is) along with taxes and penalties. If you have a self-directed IRA you must have a good basic understanding of these rules as they apply to your investing strategy.
7) Not vesting assets correctly — all assets in self-directed IRAs should be vested as follows: “Quest Trust Company, Inc. FBO Your Name IRA #Your IRA Number.”
A lot of time is spent in attempting to get clients, title companies, and investment providers to understand that all assets must be vested in a specific way in order to be held within a self-directed IRA. Common errors include failing to vest in the name of the custodian or administrator at all, or only putting the client name after the “FBO” so that it appears we are holding the asset on behalf of the individual instead of the individual’s IRA. Another common mistake is where the client attempts to use their own Social Security Number instead of that of the IRA or the administrator or custodian’s trust tax identification number.
6) Failing to submit proper paperwork to allow smooth opening of IRAs and processing of transactions.
Another large time waster is chasing down paperwork from improperly completed documents for opening the IRAs, for transferring money into the IRAs and for transactions. This leads to a frustrated client and frustrated staff. Taking the time to learn how to properly submit paperwork and allowing yourself enough time to do so is critical in successfully navigating the self-directed IRA world. Remember, it is better to ask questions in advance than to submit incorrect paperwork and cause a delay.
5) Not understanding what they are investing in.
This is a big one. It is almost incomprehensible to me how some people don’t have any understanding of what they are investing in at all. For example, a person called the other day and thought she had a note and an option agreement. Instead, she had a simple option where she had paid $28,000 for an option to buy 50% of the property for $10. This was meant to help the owner out of foreclosure. The homeowner had the right to buy back the option at a profit to the IRA of about $5,000. The good news is that it worked for a time period and the homeowner got to stay in the house for an extra two years. The bad news is that the homeowner still wasn’t fiscally responsible and the IRA lost every dime when the lien holder foreclosed. Since all the IRA had was an option (not a note as she thought) she could not even sue to recover some of her money, and even if she had exercised her option her IRA would have only owned half of the house.
4) Not understanding Unrelated Business Income Tax and how it may affect your IRA.
IRAs may be taxed in three circumstances. First, if it runs a business, either directly in the IRA or indirectly through a non-taxed entity such as a partnership or LLC. Second, if the IRA owns and rents out personal property (rents from real property are exempt from this tax). Third, if the IRA owns debt-financed property, again either directly in the IRA or indirectly through a non-taxed entity such as a partnership or LLC. Just to be clear, it is not necessarily all bad to make investments which cause your IRA to pay tax, especially within a Roth IRA or other tax free account, but it is something you should understand up front.
3) Trusting someone with your hard earned IRA money without doing proper due diligence and proper paperwork.
Let me give you a hint — con men are very good at what they do. Make sure you understand what you are investing in, and do your due diligence on the investment and on the person you are investing with before making an investment decision. Also, make sure you have proper paperwork. I wouldn’t loan money to my own mother without proper documentation! Proper paperwork protects both your IRA and the person your IRA is investing with. Think about what would happen if either you died or the person you invested with died. Would either party’s heirs understand what the investment was all about? Even if you trusted the person you invested with absolutely, would their heirs know about your handshake deal and honor it? Probably not! An excellent rule of thumb in investing is that if it sounds too good to be true it probably is. Also, a common thread in scams is that it must be done NOW or you will miss out on this incredible opportunity! This is an attempt to draw you in without allowing you time to think about or due diligence on the investment.
2) Failing to follow proper strategy when loaning your IRA to other investors.
There are at least 10 simple rules to follow when lending your IRA money out (or even your personal money). They are:
a) Do not loan on something you wouldn’t be excited to own if the borrower defaults.
b) Generally, do not advance money for repairs until the repairs are done, and then inspect the repairs before advancing the funds.
c) Do not loan to someone you would feel uncomfortable foreclosing on!
d) If the loan goes into default, do not delay — take action immediately!
e) Collect interest monthly so you will know if the borrower is getting into trouble.
f) If you are unsure about a loan, hire a professional to help you evaluate the deal (at the borrower’s cost, of course!).
g) Get title insurance on your loan. If done at closing the incremental cost to the borrower is very small.
h) Verify that hazard and, if necessary, flood and wind insurance are in place naming your IRA as an additional insured.
i) Insist on evidence that taxes, homeowners association dues and hazard insurance are paid when they come due during the term of the loan.
j) Get a personal guarantee when lending to a non-individual borrower or a weak borrower.
1) Attempting to figure out how to get around the rules to get a benefit for themselves or other disqualified persons rather than simply investing within the rules.
It seems to be very tempting for people to want to use their own IRAs to make money or obtain some other benefit for themselves or other disqualified persons right now instead of letting all the benefits go to the IRA so that they have a nice retirement. To make matters worse, a lot of gurus are teaching how to hide the fact that you are violating the rules instead of teaching people how to use the rules properly to their advantage. My personal motto is, use the law to your advantage but don’t abuse the law. After all, the “R” in IRA stands for Retirement. It is not an INA (or Individual NOW Account)! To make money now, use OPI (Other People’s IRAs), and to make money for your retirement, use your own self-directed IRA.
R. Kenner French has written two books, speaks all over the country, and lives on an island-Bainbridge Island, WA.
H. Quincy Long is an attorney and is the president of Quest Trust Company based in Houston, TX.
Make sure you consult with a tax, financial, and legal professional before deciding upon the above-mentioned transactions.