1091 tax and 401k rollover question

[Kyle DeSimone]

Hello,

My name is Kyle DeSimone, this is actually my first post! I am a new investor, to the point where I've read a bunch of books and attended a few BP seminars. I am very interested in starting off and one challenge I have is money for down payment for conventional loans... I don't have enough.  I am saving but it could take sometime and I'd like to start out soon. 

I could House Hack, but I don't feel like moving out of my current home to live in a duplex if I don't have to (although it may be worth the year and renting this place out that I currently own). 

So my question is this: I have a profit sharing account from a prior employer (which no contributions are made, just interest) and a separate one with my current employer. My previous employer account has been accumulating money for some time now and I wanted to know if anyone on here knows if there is a tax-free way to roll this money into a Multi-Family like a 1091 exchange? Or to roll it into some other form of account tax-free (Roth IRA maybe...) and then move it to an investment property?

This is all very new to me so any help is appreciated and please be patient if I need clarity on any responses. 

-Kyle

[George Blower]

@Kyle DeSimone

Generally speaking, you should be able to access funds in your former employer profit sharing retirement plan (e.g. 401k) but check with the administrator to verify that you can rollover the funds to an IRA or a new 401k plan.

If you are self-employed with no full-time w-2 employees, you can set up a Solo 401k & rollover funds from a non-Roth IRA as a tax-free direct rollover and then invest in real estate.

Solo 401k vs. Self-directed IRA

A Solo 401k has several advantages as compared to a Self-Directed IRA including the following which specifically apply to your situation:

• Unlike a Self-directed IRA, you can have the account for the Solo 401k at a bank or brokerage that does not charge maintenance fees and where you will have checkbook control.
• Unlike a Self-directed IRA, if you use leverage (which must be non-recourse financing in either case) to acquire real estate with your Solo 401k the income will not be subject to Unrelated Debt Finance Income tax

General Considerations Re Investing Retirement Funds in Real Estate:

1. If you purchase via an IRA (as opposed to a 401k), you will need to open an IRA account at a specialty trust company which allows for investments in real estate. Unless you invest via an LLCowned by the IRA, you will not have checkbook control over the funds which means you need to run transactions (e.g. income, expenses, etc.) through the trust company who will need time to process the transactions and generally charge fees for each transaction. On the other hand, keep in mind that there are costs associated with maintaining an LLC (such as the $800 annual franchise tax in California).

2. If you are self-employed with no full-time employees, you can set up a Solo 401k through a 401k provider which allows for investing in real estate. In that case, you can simply have the account at a bank or brokerage where you will have direct checkbook control.

3. In either case, all of the income and expenses will need to flow in and out of the retirement account.

4. In either case and if you will you debt to acquire the real estate, it must be non-recourse financing. See more at the following link: https://www.biggerpockets.com/blogs/9552/70408-ira... If debt-financed real estate is acquired via an IRA, any income attributable to such investment will generally be subject to unrelated debt finance income tax.

5. In either case, you can't live on the property or otherwise use it for personal use.

6. In either case, you can't work on the property as it must be a passive investment (e.g. you must hire someone to fix the toilet and can't pay the expense with non-retirement funds).

7. In either case, you must purchase/sell real estate from/to an unrelated person and the real estate can't be titled in your name personally (e.g. in the case of the 401k, it would be titled in the name of the 401k and you would sign as trustee of the 401k).

8. In either case, you should verify that you are eligible to transfer the funds from your existing retirement account (e.g. if the funds are in your current employer 401k, you will likely not be able to transfer until you quit your job).