Hello. I'm looking for some more information about the requirement for earned income which allows a 401K vs a IRA. It would be particularly helpful if anyone has the actual references that define some of the terms. But I wanted to talk through a few scenarios to make sure I understand.
Assume a husband and wife team want to buy and hold real estate both inside and outside of a retirement plan. The husband has a day job with a 401K with employer matching, and he moves companies every 2-5 years instead of sticking with one company long term. As those company 401K funds get vested, he will roll them out of the plans and into a self-directed vehicle when possible (between employment opportunities).
Scenario 1: They form an entity to hold their non-retirement real estate which they rent to tenants. The entity is either an S-Corp or an LLC that elects S-Corp taxation. The entity issues them a regular salary on a W-2 for the management of the portfolio. Is that W-2 income from the entity to themselves as employees earned income and makes the entity eligible for a 401K, or because the original source is passive rental revenue the salary is passive?
Scenario 2: They form a two entity structure: holding and operations. The holding company keeps the title and the operating company engages in all of the leasing, negotations and public-facing operations to shield the holding company from liability. The holding company contracts the operating company to conduct property management of its portfolio for a reasonable market fee. Operating company uses this fee to pay a W-2 salary. Does the separation and distinction that the salary is a result of property management fees, not rental leases make it earned income, or will it be viewed as indistinguishable from the original rental income and still passive?
Scenario 3: Same as scenario 2, but assuming proper licensing and compliance, the operating company offers property management services to other property owners than just the holding company. Will the presence of external income from other individuals make this situation more "earned" and less "passive"?
Again, if there are specific citations that can define where the threshold between earned and passive lies, I'd really like to learn more. The opportunity to use the UBIT loophole of a 401K and take loans against the balance make it more attractive, but I understand there needs to be eligible income for it to exist. Thanks for any insight.