Self directed IRA and hard money

[Costel A.]

Since I don't have enough cash in hands I decided to use money from my 403(b) retirement fund. I created a self-directed IRA with a custodian company. I don't have too much into my 403(b) either, only $60,000, not enough to buy a property, rehab it and sell it back unless I go to very cheap areas where nobody wants to move. I talked to my CPA about my situation and he said that I need money from hard money lenders or from banks that can give me a commercial loan. I asked him what is the first step at the moment and he said "create an LLc for your business". And I did it! At the moment I am aproved by a hard lending company and my check from Fidelity just arrived at the custodian IRA company. I thought that by next week I'll be able to start. I was wrong!

Talking back to the custodian IRA company yesterday they informed me that I can't use an LLC!!! The custodian IRA is the owner of every property I'm buying and if I need more money I need to find a bank that can give me a nonrecourse loan, meaning their only collateral is the property itself. I thought that this is exactly what the hard money companies are doing. However, on a second thought, the hard money asked me a lot of questions about the all my private assets. Why would they need such information if they can't go after my assets if things go south? Or can they?

[Mark Nolan]

@Costel A.

You can invest the IRA in an LLC (this is knows as a checkbook IRA) to limit the custodians involvement and fees. Also, you may want to consider the solo 401k if you need to use debt financing as solo 401k plans are not subject to unrelated debt financed income (UDIF) tax which applies when an IRA uses borrowed funds to invest in real estate. See following for a list of lenders.

https://www.biggerpockets.com/blogs/3441/51027-nonrecourse-loan-debt-for-self-directed-solo-401k-investment

And following are the similarities and differences between the solo 401k and the self-directed IRA.

The Self-Directed IRA and Solo 401k Similarities

• Both were created by congress for individuals to save for retirement;
• Both may be invested in alternative investments such as real estate, precious metals tax liens, promissory notes, private company shares, and stocks and mutual funds, to name a few;
• Both allow for Roth contributions;
• Both are subject to prohibited transaction rules;
• Both are subject to federal taxes at time of distribution;
• Both allow for checkbook control for placing alternative investments;
• Both may be invested in annuities;
• Both are protected from creditors;
• Both allow for nondeductible contributions;
• Both are prohibited from investing in assets listed under I.R.C. 408(m); and
• Neither may be invested in your own business. 

The Self-Directed IRA and Solo 401k Differences

• In order to open a solo 401k, self-employment, whether on a part-time or full-time basis, is required;
• To open a self-directed IRA, self-employment income is not required;
• In order to gain IRA checkbook control over the self-directed IRA funds, a limited liability company (IRA LLC) must be utilized;
• The solo 401k allows for checkbook control from the onset;
• The solo 401k allows for personal loan known as a solo 401k loan;
• It is prohibited to borrow from your IRA;
• The Solo 401k may be invested in life insurance;
• The self-directed IRA may not be invested in life insurance;
• The solo 401k allow for high contribution amounts (for 2016, the solo 401k contribution limit is $53,000, whereas the self-directed IRA contribution limit is $5,500);
• The solo 401k business owner can serve as trustee of the solo 401k;
• The self-directed IRA participant/owner may not serve as trustee or custodian of her IRA; instead, a trust company or bank institution is required;
• When distributions commence from the solo 401k a mandatory 20% of federal taxes must be withheld from each distribution and submitted electronically to the IRS by the 15th of the month following the date of each distribution;
• Rollovers and/or transfers from IRAs or qualified plans (e.g., former employer 401k) to a solo 401k are not reported on Form 5498, but rather on Form 5500-EZ, but only if the air market value of the solo 401k exceeds $250K as of the end of the plan year (generally 12/31);
• When funds are rolled over or transferred from an IRA or 401k to a self-directed IRA, the amount deposited into the self-directed IRA is reported on Form 5498 by the receiving self-directed IRA custodian by May of the year following the rollover/transfer.
• Rollovers (provided the 60 day rollover window is satisfied) from an IRA to a Solo 401k or self-directed IRA are reported on lines 15a and 15b of Form 1040;
• Pre-tax IRA contributions on reported on line 32 of Form 1040;
• Pre-tax solo 401k contributions are reported on line 28 of Form 1040;
• Roth solo 401k funds are subject to RMDs;
• A Roth 401k may be transferred to a Roth IRA (Note that from a planning perspective, it may be advantageous to transfer Roth Solo 401k funds to a Roth IRA before turning age 70 ½ in order to escape the Roth RMD requirement applicable to Roth 401k contributions including Roth Solo 401k contributions and earnings.);
• Roth IRA funds are not subject to requirement minimum distributions (RMDs);
• The fair market value (FMV) of assets held in a self-directed IRA is reported on form 5498;
• The fair market value of assets held in a solo 401k are reported on Form 5500-EZ;
• At termination, the solo 401k is required to file a final Form 5500-EZ and 1099-R; and
• At termination, the self-directed IRA is only required to file a form 1099-R.