In a solo 401k, the assets are owned by the plan, not you or your business. When you open a solo 401k account, the plan registers for its own Employer Identification Number (EIN). The IRS identifies the plan as its own entity, separate from you and your business. The solo 401k trust uses the EIN to open its own bank accounts and brokerage accounts. All assets purchased through a solo 401k is owned by the solo 401k trust.
Therefore, it's a conflict of interest if you use your plan to transact with yourself, your business, or your direct family members.
Prohibited transactions are a tricky subject. And some of the rules may not make a lot of sense at first glance.
For example, here's a wild one: If your plan owns a vacation home, you're technically not allowed to use it. It might not make much sense since you feel like it's yours and you should be free to do with it as you like. But in the IRS' eyes, that vacation home is NOT yours. It belongs to your solo 401k trust. And since you're a disqualified person, using it would be considered a prohibited transaction.
If you pay rent to use the vacation home, that's a transaction - not allowed. If you use it for free, that's also a transaction. That's taking advantage of the plan's assets to give yourself a free vacation - also not allowed. If your parents wanted to getaway and use your vacation home, the same rule applies.
There are a lot of little nuances with prohibited transactions and it can get a little tricky. This guide will explain what a disqualified person is, types and examples of prohibited transactions, and the penalties for violating the rules.
Here's the full list of who the IRS deems as a disqualified person:
Your siblings, step-parents, step-children, friends, and relatives (like your aunt and uncle) are not considered as a disqualified person.
A prohibited transaction is when your plan participant transacts with a disqualified person.
Put bluntly, any transactions made within a solo 401k plan must not directly benefit you, your direct family, or your business.
Imagine you wanted to take out $10,000 from your solo 401k. The government lets you take out early distributions (or a solo 401k loan) if you need to take money out before the eligible withdrawal age. You'll have to pay a 10% fee and income taxes for taking the early withdrawal.
If a prohibited transaction rule didn't exist, you could technically just give the money to your spouse, who would then give it to you. You'd be able to bypass the fees and taxes set into place by the IRS.
Or, if you got more creative, you could hire yourself as a contractor to work for the plan (for example, as a bookkeeper) and pay yourself $10,000.
It would be such a massive loophole, and nobody would ever pay taxes for plan withdrawals.
IRC 4975(c)(1) lists the following as prohibited transactions:
Understanding prohibited transactions is complicating. The language used by the IRS and the specifics behind the rules are a bit of a grey area. Real estate dealings can be especially tricky.
Let's try and break it down in plain English with some specific scenarios.
The penalties for prohibited transactions are very steep.
According to IRC Section 408(e)(2), when a prohibited transaction violation is found, the disqualified person has to pay a 15% penalty tax on the amount involved in the transaction. If the prohibited transaction is not corrected within the taxable period, the penalty increases to 100% of the amount involved.
So if you used your solo 401k trust funds to purchase your parent’s house for $100,000, your initial penalty would be $15,000 (15%). If you don’t fix the mistake within the taxable period, you’ll have to pay the full $100,000 to the IRS.
The IRS determines fixing the prohibited transaction as undoing the transaction as much as you can without putting the plan in a worse financial shape than if you had acted under the highest fiduciary standards.
The taxable period starts on the date the transaction took place, and ends on the earliest of the following days:
To pay the 15% fee, use Form 5330.
The IRS and the Department of Labor (DOL) work together to enforce prohibited transactions. The IRS finds them, and then hands suspicious cases to the DOL, who then have the final say in whether it's a violation or not.
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