OWN ANY REAL ESTATE INSIDE YOUR IRA? BE CAREFUL.

By: Randall A. Denha, J.D., LL.M.

An IRA is a powerful financial planning tool that allows you to save for retirement, or provide benefits for your heirs, on a tax-advantaged basis. Most people invest their IRA funds in stocks, bonds and mutual funds. But others opt for nontraditional investments, such as real estate, in the hope of boosting their returns. While the idea of holding real estate in your individual retirement account sounds good and can offer higher returns than stocks or bonds, the process has a few pitfalls and traps. Annual contribution limits still apply, so if you don’t have enough in your IRA, you can’t just put in extra to cover the purchase. To buy real estate within a retirement account, you first need to set up a “self-directed” IRA with a custodian. Once you’ve established the IRA, you can then use it to purchase practically any type of real estate, including vacant land, single- and multi-family homes, commercial properties, co-ops, and condos.

If you choose to hold real estate in your IRA, be aware that there are several tax traps for the unwary, chief among them the prohibited transaction rules. Those rules disallow certain dealings between you (or your beneficiaries) and your IRA. Violation of these rules results in the disqualification of the IRA and the full value of the IRA becoming taxable, plus a 10% penalty.

For example, you and your beneficiaries can’t sell or lease property to your IRA, buy or lease property from your IRA, use IRA property as a personal residence or office, lend to or borrow from your IRA, guarantee a loan to your IRA, pledge IRA assets as security for a loan or provide goods or services to your IRA. This last prohibition means you can’t provide property management, renovation or construction services, either by yourself or through a family member or a company you control. In effect, you cannot use any of the real estate in this special IRA for your personal benefit.

Violations of the prohibited transaction rules result in termination of the IRA. That means you’ll be liable for taxes and penalties on the entire account balance, regardless of the transaction’s size.

Other considerations to keep in mind:

• In a traditional IRA, any capital gains eventually will be taxed as ordinary income. For regular investment property, you pay capital gains tax rates when you sell at a profit and can write off at least a portion of your loss against other income. Not so with assets held in an IRA. When you sell the property and take an IRA distribution, you’ll pay tax on any asset appreciation at income tax rates, not cap gains rates.
• If real estate is financed by a mortgage, some income may be subject to unrelated business income tax (UBIT).
• You cannot write off IRA losses.
• Not all IRA custodians permit real estate investments, so you may have to open a self-directed IRA.
• If you have a traditional IRA, it must have sufficient cash or other liquid assets to fund required minimum distributions starting at age 70½. Put another way, unless other assets exist then you will have to sell the real estate property unless you have enough liquid IRA assets to withdraw.

At present, the real estate market is red hot and many people are at it again, both developers and investors alike. There’s no guarantee that the real estate market won’t tank again. And rising property taxes, unplanned maintenance costs, and deadbeat tenants could also ding your returns. The upside of real estate is big — but so are the headaches.