IRS Audits 419 Plans • 419 Plan Litigation

Insurance Companies Are in Trouble and Don’t Know It

Many life insurance companies are using captive insurance to alter their books and look better. This could lead to another taxpayer bailout and insurance companies being taken over.

This would put benefits in policies at risk for some policyholders.

By using captive insurance arrangements, many insurance companies allow the taxpayer to describe themselves as richer and stronger. This misleads regulators, the ratings agency and consumers who rely on rating.

The NY insurance department said the insurance based in New York had burnished their books by $48 billion by using captive insurance companies, often owned by the insurers.

I have been writing books and articles about some problems with captives for years. This is only one of the problems. The use of a captive to mislead people is not what captives are made for, but some do this anyway.

Insurance regulation is based on solvency because the transactions of using captives make companies look richer than they normally would be. So insurance companies are diverting reserves to other uses like executive compensation and stockholder dividends in order to try and raise the price of their stock. This is not a problem with mutual insurance companies where the insured’s are the stockholders.

By using a captive and trying to hide the fact, some insurance companies artificially increase their risk based capital rations. These ratios are an important measurement of solvency.

Watch out because the IRS is watching 419 Plans

A business owner wants legitimate tax planning ideas. One solution sometimes offered today is a 419(e) plan (419 Welfare Benefit Plan). The local insurance agent or the company’s CPA who may have an insurance sales license, may suggest that the 419 Welfare Benefit Plan will provide shelter from taxes today, the costs of the plan are tax deductible and the plan will provide tax free benefits for the owner when he or she is ready to retire. The concept seems too good to be true.

Watch out because the IRS is watching, and it often says that the plan is too good to be true. A 419 Welfare Benefit Plan is generally a plan set up in the form of a trust to provide certain benefits to the employees of a company. You will notice that the term trust is used because the large whole life insurance policies that the owner is instructed to buy go into a trust where neither the company nor the business owner actually owns them. The trust owns the policies.

The insurance agent or CPA wants you to set up a 419(e) plan because you are agreeing to buy high dollar life insurance with premiums payable until you retire. That can generate fees of up to 125% of the first year premium as a commission – that’s right; you read that correctly – 125%.

The plan is sold as a win-win for everyone. It is for the insurance company because it locks the business owner into long-term, expensive insurance. It is for the trust administrator (remember: the insurance policies must be put into a trust to make the plan work) because the business owner has to pay a fee every year to administer the plan. But for the business owner? Maybe not so much!

The big sales pitch often is that the contributions are tax deductible to the business and the business can exclude employees. Moreover, the seller promises that the big insurance policies that are paid for with tax free money can be cashed out or transferred from the trust to the business owner at some later date without paying taxes. It is all so easy: no taxes in and no taxes out. Good right?

Unfortunately, it is often too good to be true. The IRS has been actively attacking such 419 Welfare Benefit Plans as TAX SHELTERS. If a transaction is classified as a tax shelter then the salesperson and your CPA are supposed to tell you to file an 8886 form which highlights tax shelters to the IRS. Think of it as a beacon so that the IRS knows who to come pursue for taxes, penalties, interest and listed transaction charges.
The IRS focus on 419(e) plans came up in a case identified as Curcio v. Commissioner of Internal Revenue, T.C. Memo 2010-115.

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Participate in any Abusive Tax Shelter?

You Could Be Fined $200000 Per Year!!

If you haven’t already, you still may. Consider yourself lucky if you have not because this means that you have more time to straighten this situation out.

Do not wait for this letter to come from the IRS before you call an expert to help you. Even if you have been audited already, you could still get the letter and/or fine. One has nothing to do with the other, and once the fine has been imposed, it can not be appealed.

Businesses that participated in a 412i retirement plan or the IRS is auditing a 419-welfare benefit plan, may be the ones in trouble because these plans were not in compliance with the law and are considered abusive tax shelters.

Many business owners are not even aware that the welfare benefit plan or retirement plan that they are participating in may be an abusive tax shelter and that they are in serious jeopardy of huge IRS penalties for each year that they have been in this type of plan.

IRS Attacks Accountants and Business Owners

by Lance Wallach

Senate Response: Senator Ben Nelson (D-Nebraska) has sponsored legislation (S.765) to curtail the IRS and its nearly unlimited authority and power under Code section 6707A. Senator Nelson is actively seeking co-sponsors of the bill. The bill seeks to scale back the scope of the section 6707A reportable and/or listed transaction nondisclosure penalty to a more reasonable level.

The current law provides for penalties that are draconian by nature and offer no flexibility to the IRS to reduce or abate the imposition of the 6707A penalty. This has served as a weapon of mass destruction for the IRS and has hit many small businesses and their owners with unconscionable results.

Internal Revenue Code 6707A was enacted as part of the American Jobs Creation Act on October 22, 2004. It imposes a strict liability penalty for any person that failed to disclose either a listed transaction or reportable transaction per each occurrence.

Reportable transactions usually fall within certain general types. For example; confidential transactions, transactions with tax protection, certain loss generating transactions and transactions of interest arbitrarily so designated by the IRS that have the potential for tax avoidance.

Listed transactions are specified transactions that have been publicly designated by the IRS, including anything that is substantially similar to such a transaction (a phrase which is given very liberal construction by the IRS).

There are currently 34 listed transactions, including certain retirement plans under Code section 412(i) and certain employee welfare benefit plans funded in part with life insurance under Code sections 419A(f)(5), 419(f)(6) and 419(e). Many of these plans were implemented by a small business seeking to provide retirement income or health benefits to their employees.

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412i, 419, Captives and Section 79 Plans; Buyer Beware

By Lance Wallach, CLU, ChFC, CIMC

The IRS has been attacking all 419 welfare benefit plans, many 412i retirement plans, captive insurance plans with life insurance in them, and Section 79 plans. IRS is aggressively auditing various plans and calling them “listed transactions,” “abusive tax shelters,” or “reportable transactions,” participation in any of which must be disclosed to the Service. The result has been IRS audits, disallowances and huge fines for not properly reporting under IRC 6707A.

In a recent tax court case, Curico v. Commissioner (TC Memo 2010-115), the Tax Court ruled that an investment in an employee welfare benefit plan marketed under the name “Benistar” was a listed transaction. It was substantially similar to the transaction described in IRS Notice 95-34. A subsequent case, McGehee Family Clinic, largely followed Curico, though it was technically decided on other grounds.

The parties stipulated to be bound by Curico regarding whether the amounts paid by McGehee in connection with the Benistar 419 Plan and Trust were deductible. Curico did not appear to have been decided yet at the time McGehee was argued. The McGehee opinion (Case No. 10-102)(United States Tax Court, September 15, 2010) does contain an exhaustive analysis and discussion of virtually all of the relevant issues.

Taxpayers and their representatives should be aware that the Service has disallowed deductions for contributions to these arrangements.

The IRS is cracking down on small business owners who participate in tax reduction insurance plans and the brokers who sold them. Some of these plans include defined benefit retirement plans, IRAs, or even 401(k) plans with life insurance. In order to fully grasp the severity of the situation, you have to understand Notice 95-34. It was issued in response to trust arrangements that were sold to companies designed to provide deductible benefits, such as life insurance, disability and severance pay benefits.

The promoters of these arrangements claimed that all employer contributions were tax-deductible when paid. They relied on the 10-or-more-employer exemption from the IRC § 419 limits. They claimed that the permissible tax deductions were unlimited in amount. In general, contributions to a welfare benefit fund are not fully deductible when paid. Sections 419 and 419A impose strict limits on the amount of tax-deductible prefunding permitted for contributions to a welfare benefit fund. Section 419(A)(F)(6) provides an exemption from

Section 419 and Section 419A for certain “10-or-more-employers” welfare benefit funds. In general, for this exemption to apply, the fund must have more than one contributing employer of which no single employer can contribute more than 10% of the total contributions. Also, the plan must not be experience-rated with respect to individual employers.

According to the Notice, these arrangements typically involve an investment in variable life or universal life insurance contracts on the lives of the covered employees. The problem is that the employer contributions are large relative to the cost of the amount of term insurance that would be required to provide the death benefits under the arrangement. Also, the trust administrator can cash in or withdraw the cash value of the insurance policies to get cash to pay benefits other than death benefits.

The plans are often designed to determine an employer’s contributions or its employees’ benefits based on a way that insulates the employer to a significant extent from the experience of other subscribing employers. In general, the contributions and claimed tax deductions tend to be disproportionate to the economic realities of the arrangements.

Benistar advertised that enrollees should expect the same type of tax benefits as listed in the transaction described in Notice 95-34. The advertising packet listed the following benefits of enrollment.

What does §409A do?

Code Section 409A was enacted into law on October 10, 2004, to provide some uniformity and to impose several requirements upon non-qualified deferred compensation plans and similar arrangements.

Among new rules imposed, it:

Requires a written plan agreement.
Limits payments to death, disability or retirement.
Requires a substantial risk of forfeiture to avoid immediate taxation to the employee.
Imposes timing limitations on benefit distributions.

What is deferred compensation?

Congress drafted §409A broadly to include any payment to an employee after the year in which it was earned or after termination of employment, unless the payment falls under one of the named exceptions. (Exceptions include payments within 75 days, COBRA benefits, de minimis cashouts paid in the year of termination of employment, etc.)

Why does this apply to welfare benefit or life insurance plans?

409A does NOT apply to welfare benefits. In fact, several forms of welfare benefits are specifically excluded under 409A. However, such excluded arrangements do not permit transfer of property to the participant except for death, disability and payments made upon retirement in accordance with the §409A rules.

Most of the existing §419(e) and §419A(f)(6) welfare benefit plans do not comply with the §409A rules relative to transfers of insurance policies or cash payments other than upon death.

What are the penalties for failure to comply?

Significant penalties apply for non-compliance with §409A. In addition to having compensation included in income, tax penalties equal to the IRS underpayment rate plus 1% from the time the compensation should have been included in income plus 20% of the compensation amount apply. Additional penalties may apply for failure to report the arrangement appropriately.

When are the new rules effective?

When §409A was added, employers and consultants scrambled to comply because the rules were effective for years beginning after 2004 for all arrangements entered into after October 3, 2004. Existing arrangements were given until the end of 2005 to comply. However, IRS granted an extension for compliance for employers who made a “good-faith” effort to comply with the rules. Under the final regulations, plans have until December 31, 2007, to be in full compliance.

What does this mean to sponsors of 419 plans?

Sponsors of 419 plans have two choices: totally eliminate distributions from their plans (except death benefits and/or medical reimbursements), or comply with Code §409A and the regulations thereunder.

What does this mean to professionals who advise clients?

Under Circular 230 standards, a CPA or attorney who advises his or her client about participating in a non-compliant welfare benefit plan may be liable for fines and other sanctions. We expect that opinion letters relative to such welfare benefit plans have either been withdrawn or will be shortly. We admonish professionals carefully to review all communications with clients relative to such plans. The IRS has recently been successful in imposing huge fines on several law firms for blessing questionable transactions.

What does this mean to employers participating in 419 plans?

This means that employers have until December 31, 2007, to be in compliance. Employers who have adopted 419 plans must choose immediately whether to remain in their current 419 plan, cancel their participation in such arrangement and have their benefits distributed by December 31, or transfer to a plan that is fully compliant with the new rules.

Conclusion

Time is of the essence in making and implementing a decision as to what to do.

We have only seen one or two plans that may be in compliance. We therefore recommend that employers waste no time in contacting a tax professional to review their welfare benefit plan participation to verify compliance with the new law and regulations.

Accountants Fined $100,000 for Selling 419 Plans

Accountants fined $100,000 for signing tax returns and selling 419 plans, 412i plans and other abusive life insurance plans.

Accounting Today – Don’t Become A Material Advisor – Accountants, insurance professionals and others need to be careful that they don’t become what the IRS calls material advisers by selling faulty 419 plans.

If they sell or give advice, or sign tax returns for abusive transactions, listed transactions or any similar plan, they risk a minimum of $100,000 fine. Their client will then probably sue them after having dealt with the IRS.

In 2010, the IRS raided the offices of Benistar in Simsbury, Connecticut and seized the retirement benefit plan administration firm’s files and records. In the McGehee Family Clinic, the Tax Court ruled that a clinic and shareholder’s investment in an employee benefit plan marketed under the name “Benistar” was a listed transaction. It was substantially similar to the transaction described in Notice 95-34 (1995-1 C.B. 309).

This is at least the second case in which the court has ruled against the Benistar welfare benefit plan, by denominating it a listed transaction.

The McGehee Family Clinic

The McGehee Family Clinic enrolled in the Benistar Plan in May 2001 and claimed deductions for contributions to it during 2002 and 2005. The returns did not include a Form 8886 or a Reportable Transaction Disclosure Statement. The IRS disallowed the latter deduction and adjusted the 2004 return of shareholder Robert Prosser and his wife to include the $50,000 payment to the plan.

The IRS assessed tax deficiencies and the enhanced 30 percent penalty under Section 6662A. Totaling almost $21,000, against the clinic and $21,000 against the Prossers. The court ruled that the Prossers failed to prove a reasonable cause or good faith exception.

In rendering its decision, the court cited Curcio v. Commissioner and in which the court also ruled in favor of the IRS.

As noted in Curcio, the insurance policies which were overwhelmingly variable or universal life policies. They required large contributions relative to the cost of the amount of term insurance that would be required to provide the death benefits under the arrangement.

The Benistar Plan

The Benistar Plan owned the insurance contracts. The excessive cost of providing death benefits was a reason for the court’s finding in Curcio that tax deductions had been properly disallowed.

The McGehee court held that the contributions to Benistar were not deductible under Section 162(a). Reason being that the participants could receive the value reflected in the underlying insurance policies purchased by Benistar. Despite the payment of benefits by Benistar seeming to be contingent upon an unanticipated event. For example; the death of the insured while employed.

As long as plan participants were willing to abide by Benistar’s distribution policies, there was no reason ever to forfeit a policy to the plan. In fact, in estimating life insurance rates, the taxpayers’ expert in Curcio assumed that there would be no forfeitures, even though he admitted that an insurance company would generally assume a reasonable rate of policy lapse.

419 Life Insurance Plans and Other Scams – Large IRS Fines

– The IRS Raids Plan Promoters, What Does All This Mean To You?

Recently IRS raided Benistar, which is also known as the Grist Mill Trust, the promoter and operator of one of the better known and more heavily scrutinized of the Section 419 life insurance plans. IRS attacked the Benistar 419 plan, and one of its tactics was to demand the names of all the clients Benistar worked with — so they could be audited by the IRS, Benistar refused to give the names and actually appealed the decision to turn over the names.

The appeal was unsuccessful, but Benistar officials still refused to give up the names. Recently, the IRS raided the Benistar office and took hundreds of boxes of information, which included information on clients who were in their 419 plan. In documents filed by Benistar itself, they stated that 35 to 50 armed IRS agents descended upon their office to seize documents.

IRS has visited, and is still visiting most of the other plans and obtaining names of participants, selling insurance agents, accountants, etc. They have a whole task force devoted to auditing 419, 412i and other abusive plans.

It’s important to understand what could happen to unsuspecting business owners if they get involved in plans that are not above board. Their names could be turned over to the IRS, where audits could ensue, and where the outcome could be the payment of back taxes and significant penalties. Then they would be fined another time under Section 6707A for not properly reporting on themselves.

Most 419 life insurance and 412i defined benefit pension plans were sold to successful business owners as plans with large tax deductions where money would grow tax free until needed in retirement. I would speak at national accounting and other conventions talking about the problems with most of these plans. I would be attacked by some attendees who where making large insurance commissions selling the plans. I would try to warn insurance company home office executives, but they too had their heads in the sand because of all the money these plans brought in.

Then the IRS got tough and started fining the unsuspecting business owners hundreds of thousands a year for not reporting on themselves for being in the plan. The agents and insurance companies advise against filing. “This is a good plan. We have approval.” Not only were the business owners fined under IRS Code 6707A, but the insurance agents were also fined $100,000 for not reporting on themselves.

Accountants who signed tax returns are even being fined 100,000 by IRS. Then the business owners sue the accountants, insurance agents, etc. I have been following these scenarios for a long time. In fact, I have been an expert witness in many of these cases, and my side has never lost.

Most promoters of 419 plans told clients that their plans complied with the laws and, therefore, were not listed tax transactions. Unfortunately, the IRS doesn’t care what a promoter of a tax-avoidance plan says; it makes its own determination and punishes those who don’t comply.

The McGehee Family Clinic, P.A. was recently hit with back taxes and a penalty under Code Sec. 666A in conjunction with a deduction to the Benistar 419 plan

Dr. McGehee’s clinic took a deduction for a 419 plan (the Benistar plan) back in 2005. Eventually, the McGhee Family Clinic was audited. After the audit, the doctor was told that the deduction would be disallowed and that back taxes were due. Additionally, Dr. McGehee was hit with a 20 percent accuracy-related penalty under Code Sec. 6662A. Finally, the tax court sustained the IRS’s determination that McGehee was subject to the increased 30 percent penalty, because its return did not include a disclosure statement indicating its participation in the Benistar Trust.

I think that in addition to the aforementioned fines, IRS will now fine him, both on a corporate and personal level, another $200,000 or more, under IRC 6707A, for not properly disclosing his participation in a listed transaction. There was a moratorium on those fines until June 2010, pending new legislation to reduce them. The fines had been 200,000 per year on the corporate level and $100,000 per year on the personal level. You got the fine even if you made no contributions for the year. All you had to do was to be in the plan. So Dr. McGehee’s fine would be a total of $300,000 per year for every year that he and his corporation were in the plan.

IRS also says the fine is not appealable. His fine would be in the million-dollar range and it would be in addition to the back taxes, interest, and penalties already discussed earlier in this paragraph.

Legislation just passed slightly reducing those fines, but you still have to properly file to start the Statute of Limitations running to avoid the fines. IRS is fining people who report on themselves, but make a mistake on the forms. Now that the moratorium on the fines has passed, and so has the new legislation, IRS has aggressively moved to fine unsuspecting business owners hundreds of thousands. This is usually after they get audited, and sometimes reach agreement with IRS. Then another division or department of the IRS imposes a fine under 6707A.

I am receiving a lot of phone calls from business owners who this is happening to. Unfortunately, some of these people already had called me. I warned them to properly file under 6707A. Either they did not believe me – it is unbelievable – or their accountant or tax attorney filed incorrectly. Then they called again after being fined.

If you were involved with one of these abusive plans, there are steps that you can take to minimize IRS problems. With respect to filing under Section 6707A, I know the two best people in the country at filing after the fact, which is what you would be doing at this point, and still somehow avoiding the fine. It is an art that both learned through countless hours of research and numerous conversations with IRS personnel. Both have filed dozens of times for clients, after the fact, without the clients being fined. Either may well still be able to help you.

And the right accountant, one with the proper knowledge, experience, and Service contacts, can help with the other IRS problems as well. I recall a case where a CPA I knew and recommended was able to get $300,000 or so in liabilities reduced to three thousand dollars and change. Do not count on a result like this, but help is available.

It’s not worth it!

Stay away from 419 and similar plans like Section 79 plans. Be very careful with 412i plans. Avoid most captive insurance plans.

It’s getting closer to the end of the year. This is when every scammer known to man/woman comes out of the woodwork to sell some fly-by-night tax-deductible plan to clients. Sometimes they come in the form of an accountant, insurance agent-financial planner, or even an attorney. I see this in all of my expert witness cases and when I speak at conventions. I have seen this since the 1990s. I wanted to remind readers that, if it sounds too good to be true, it probably is.

419 Insurance Welfare Benefit Plans Continue To Get Accountants Into Trouble

by Lance Wallach

Popular so-called “419 Insurance Welfare Benefit Plans”, sold by most insurance professionals, are getting accountants and their clients into more and more trouble. A CPA who is approached by a client about one of the abusive arrangements and/or situations to be described and discussed in this article must exercise the utmost degree of caution, not only on behalf of the client, but for his/her own good as well. The penalties noted in this article can also be applied to practitioners who prepare and/or sign returns that fail to properly disclose listed transactions, including those discussed herein.

On October 17, 2007, the IRS issued Notice 2007-83, Notice 2007-84, and Revenue Ruling 2007-65. Notice 2007-83 essentially lists the characteristics of welfare benefit plans that the Service regards as listed transactions. Put simply, to be a listed transaction, a plan cannot rely on the union exception set forth in IRC Section 419A(f)(5),there must be cash value life insurance within the plan and excessive tax deductions for life insurance, in excess of what may be permitted by Sections 419 and 419A, must have been claimed.

In Notice 2007-84, the Service expressed concern with plans that provide all or a substantial portion of benefits to owners and/or key and highly compensated employees. The notice identified numerous specific concerns, among them:

1. The granting of loans to participants
2. Providing deferred compensation
3. Plan terminations that result in the distribution of assets rather than being used post-retirement, as originally established.
4. Permitting the transfer of life insurance policies to participants.

Alternative tax treatment may well be in the offing for such arrangements, as the IRS intends to re-characterize such arrangements as dividends, non-qualified deferred compensation (under IRC Section 404(a)(5) or Section 409A), split-dollar life insurance arrangements, or disqualified benefits pursuant to Section 4976. Taxpayers participating in these listed transactions should have, in most cases, already disclosed such participation to the Service. Those who have not should do so at the earliest possible moment. Failure to disclose can result in severe penalties – up to $100,000 for individuals and $200,000 for corporations.

Finally, Revenue Ruling 2007-65 focused on situations where cash value life insurance is purchased on owner employees and other key employees, while only term insurance is offered to the rank and file. These are sold as 419(e), 419A (f)(6), and 419 plans. Life insurance premiums are not inherently tax deductible and authority must be found in Section 79 to justify such a deduction. Section 264(a), in fact, specifically disallows tax deductions for life insurance, at least in some cases. And moreover, the Service declared, interposition of a trust does not change the nature of the transaction.

Have you invested in a pension plan?

Have you invested in a 419, 412i or Section 79 pension plan?

If so, get to know the real truth behind your investment and what you can do to defend yourself.

Since 2004, the Internal Revenue Service has amended the tax laws regarding such plans and thus has placed aggressive penalties and fines and auditing people who don’t know the truth about what they got themselves in to.

Consult with us today and let us help guide you through this serious situation and lower your financial risk.

The 419 Plan Is a Good Option – If Handled Well

If your clients who are business owners are thinking about setting up a 419 plan, beware! It must be airtight to escape the tentacles of the Internal Revenue Service.

A 419 plan is a funded, welfare benefit that allows for employer-provided benefits covering sickness, accidents, disability, death or unemployment. Some plans offer benefits both before and after retirement.

If structured properly, these arrangements may allow for tax-deductible employer contributions.

Be careful: Welfare benefits are not pension or retirement benefits. Internal Revenue Code Section 419 allows employers to take deductions within certain limits. It’s allowed for contributions generally made to a trust to fund welfare benefits for employees. Such as benefits paid in the event of sickness, accident, disability, death or in some cases, unemployment. The trust can own life insurance. Yet under no circumstances can plan assets revert to the employer.

To be considered a 419(e) plan, it must be funded and offer benefits to all employees. This means that the employer must set aside assets specifically dedicated to paying benefits, often in a trust, for employees or their beneficiaries.

The typical company that uses a 419(e) plan has one or more owners in their 50s, with long-time, key employees. The typical company also has 10 employees or less.

Kurt Fasen, senior vice president of ING, in Minneapolis, says professional groups and small business operations with strong cash flows are attractive candidates for this type of program. For a medical office with two doctors and four employees, for example, contributions to this type of plan may range from $50,000 to about $250,000 annually.

Fasen notes that 419 plans use lower-cost term insurance to fund death-benefit-only benefits. Universal life insurance, which offers flexible premium rates and payments is frequently used for post-retirement medical, disability and unemployment benefits. Loans against the cash value or cash withdrawals are also used to pay for welfare benefits.

For 419 plans, ING provides only the insurance products, says Fasen. Often the company will review a plan provided by a vendor or third-party administrator to double check to see if the plan complies with the law. Fasen stresses that it’s important for business owners to hire a third party to design a plan that strictly adheres to IRS regulations.

At first blush 419 plans look like a good way for a small business to attract and keep key employees, while getting a tax deduction for the company’s 419 contributions into the insurance policy. In addition, assets in the life insurance trust are sheltered from creditors.

Experts warn that 419 plans have complex rules that dictate the need for a third-party administrator. The amount of the deductions must be actuarially certified. If the company offers post-retirement benefits, they must offer them to all the company’s employees.

Previous tax abuses involving 419 plans designed for companies with 10 or more employees may have tainted the perception and increased IRS scrutiny of 419 plans, notes Lance Wallach, financial planner. What Ever Happened to all those 419 Providers?

A study published in the March/April 2006 issue of the National Association of Enrolled Agents’ EA Journal. During the past few years, says Wallach, a number of IRS rulings and court cases, as well as Department of Labor cases, have disallowed tax deductions for 419 plans.

The IRS has come to consider 419A(f)(6) plans as a potentially abusive tax shelter and has identified them as listed transactions. Yet the IRS has issued no notice on 419(e) plans, according to John Lipold, an IRS spokesperson based in Washington.

As a result, today, 419 plans often take the place of 419A plans. Even still, 419(3) can be problematic.

Wallach’s study, done in conjunction with Ronald H. Snyder, an ERISA attorney and pension actuary with the Benefit Strategies Group, Inc., Salt Lake City, analyzed several 419 plans for potential tax problems.

Bottom line is if you are going to recommend a 419 plan, it had better be well-defined in the IRC and rely on minimal interpretation. Otherwise, expect the IRS to disallow the tax deductions.

To keep in line, be sure to follow these guidelines:

The plan must cover all employees. You may not discriminate in favor of key employees.
Severance benefits can’t be offered through a 419(e) plan.
You can’t offer 419 welfare benefits to self-employed individuals or partnerships that are subcontracted by the company for work.
Universal or whole life insurance can’t be used to fund benefits for key employees, while rank-and-file welfare benefits are covered by term insurance.
A universal or whole life insurance policy can’t be used if the company is only offering life insurance as a welfare benefit. Term insurance must be used. Cash value insurance is more costly than term life and may be considered an excessive tax deduction by the IRS. As a result, the IRS may treat the employer deduction as a taxable dividend
Aggressive actuarial assumptions can’t be used to determine the proper death benefit and employer’s premium. Aggressive assumptions can lead to excessive tax deductions. The actuary should use the conservative level annual cost method, which looks at the cost per individual in determining the total cost of the insurance that is used in the plan.

There are additional drawbacks to 419 plans

For example, a company’s business could decline, and the employer may fail to make the required contributions. As a result, the insurance policy could lapse and the employees will lose their benefits.
This article does not stress that the IRS will audit all 419 or similar plans so just be careful. File form 8886 if you are or were in a 4.

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