Can I Live in a Property Owned by my IRA?

You have seen this on the Internet and wonder – is it possible to use your IRA to purchase real estate that you can actually live in?  We get this question all the time at New Direction IRA.  The answer to that question is NOT a simple “yes.”  There are many ways to buy real estate with your IRA, here are two of them:

#1    Purchasing as personal property but paid for with your account
The advertising that states you can buy real estate with your IRA and live in it is not actually referring to the purchase of real estate within the IRA.  What it is talking about is a little known rule for IRAs whereby you can take distributions from your Plan before reaching the age of 59 ½ years without penalty.  This type of transaction is called a “72(t) distribution.”

In IRS Publication 590, included in the list of allowed distributions without penalty, is one in which you establish an agreement with the IRS for you to take equal payments from your IRA account.  The IRS states:

Annuity: You can receive distributions from your traditional IRA that are part of a series of substantially equal payments over your life (or your life expectancy), or over the lives (or the joint life expediencies)  of you and your beneficiary, without having to pay the 10% additional tax, even if you receive such distributions before you are age 59 ½  You must use an IRS-approved distribution method and you must take at least one distribution annually for this exception to apply.

The payments under this exception must generally continue until at least 5 years after the date of the first payment, or until you reach age 59 ½  whichever is later. If a change from an approved distribution method is made before the end of the appropriate period, any payments you receive before you reach age 59 ½ will be subject to the 10% additional tax.

Those who sell annuities market primarily the 72(t) distribution concept.   The IRA is actually investing in an annuity that guarantees a series of payments, which are taken as distributions.  This is how it is used for real estate purchases:

• Sellers of annuity contracts will have the individual transfer their IRA into an IRA account, which in turn will purchase an annuity contract that guarantees a fixed payment in order to meet the required payment agreed to with the IRS
• The individual will find a piece of real estate and buy it using a mortgage guaranteed by their personal assets, with payments from the annuity used to pay the mortgage on the property.

How is this different from real estate held in your IRA?  The substantial differences are:

1. You must have enough wealth to guarantee the mortgage on the property to begin with.  
2. This is not an IRA investment.  The real estate is outside of your IRA.  Sale of the property, unless it is your primary residence, will follow all the rules of any investment sale.
3. The IRA is being liquidated to make the distribution payment.  You may not put those funds back into the IRA after taking them out.
4. There is generally little flexibility on the rate of return or how you invest the IRA after the annuity is purchased and the 72(t) distribution election is made.
5. You will be taxed on the distributions at your current tax rate rather than at your tax rate at retirement.
6. You have a mortgage on your credit rating as well as the need to come up with a down payment.

#2   Purchasing real estate as an investment within your self-directed account
Using a “Self-Directed” custodian, you may, if you choose, buy and sell real estate within your IRA. The proceeds of each sale go back into your account, tax-free, to be used for the next purchase.  There is no time limit on how long real estate is held, nor is there any requirement for “like kind” purchases with the proceeds as there is in a Section 1031 Exchange.  Taxes occur when you take distributions from the IRA at age 59 ½ or later, at which time they are taxed at your income tax rate at that time.  With this type of investment, however, there is a requirement that this be an investment and that the IRA owner cannot use it personally while it is still in the IRA.

Which method or real estate purchase is right for you?
If your intent is to use your IRA now for the purchase of, most likely, a second home to use now, the 72(t) option could be for you.  If your attraction to real estate is for building wealth within a tax-deferred account by buying and selling for a profit and growing your IRA, then a 72(t) is probably not what you want.  The tax-deferred status of IRAs is specifically designed for the purpose of tax-free growth.  You lose this status when the real estate is purchased outside the IRA and funded with taxable distributions from an annuity.

Are there other options available?
Must you purchase an annuity contract in order to take a 72(t) distribution?  The answer is no.  It is possible to do a 72(t) distribution from any IRA, regardless of the assets held.  For ease of distribution, the investments in the IRA should have sufficient liquidity available to make the mandatory distributions.  You need only to be able, or to have an adviser able, to make the calculation of the required annual distribution amount.   It is a relatively simple calculation, and most tax advisers can advise you.  Your self-directed custodian can hold any investment of your choosing for the purposes of the 72(t) distribution.  Purchasing mortgages, income property, or any cash-producing asset can be used.  Consider that the purchase of an appreciating asset that also produces cash flow sufficient for your distributions may allow the account to grow for your future retirement needs while still funding the 72(t) distribution.   Making your investments inside a self-directed account allows you to keep maximum flexibility rather than locking you into the purchase of annuity contract..  As an example, consider the following for your IRA:

1. Purchase a condo for cash within your IRA for $150,000
2. Your IRA rents the condo for $800 per month, which nets $700 per month cash flow into the IRA.
3. You determine that the required monthly distribution for a 72(t) will involve taking $700 per month from your IRA account.
4. You use the $700 to make payments on your “second home” mortgage.
5. The condo appreciates at a rate of 5% per year, making your IRA worth $190,000 in five years even while paying out the required distributions.
6. Your IRA is going up in value because it contains real estate.
7. You have your second home to use now.

Conclusion
Choosing the right option is important when one of the choices is electing a 72(t) distribution which involves a commitment to the IRS to take mandatory distributions.  Seek input from your tax and financial advisers before embarking on investments either inside or outside of your IRA in order to quantify the tax consequences of the various options.  For information on self-directed IRAs and the IRS rules applicable to those types of investments contact your local self-directed IRA administrator.

Managing Property Owned by your Self Directed IRA

When your IRA owns real estate, one of the questions that frequently comes up is “how do I manage the property”?  Good question.  Since the IRA owns the real estate, the IRA pays all the bills and takes in all the income of the property.  You, as the IRA holder can have no contact with the money, it all must run through the IRA account.  The administrator reacts to your authorization to pay bills but does not “manage” the property.  A tenant who fails to pay rent will not be a red flag to the custodian as they are not the manager.  So how do you handle this and other issues?

I want to manage it myself:  in this case the custodian pays all the bills and takes in the rent.  You pick the tenants and have tenants make the rent check payable to New Direction IRA, you receive the check and forward it to the custodian for deposit.  You make the decisions on what maintenance and improvements are necessary and hire someone to do the work.  Can you do these things yourself?  How much you can do is a gray area in the IRA code.  A discussion on this is probably more suitable in a longer article.  If you are the "hands on" type you may want to consider a new tool New Direction IRA has created called myDirection which allows you to both receive the IRA bills at your home and initiate payment on these expenses on line.  You can monitor expenses AND know immediately if rent payments are being made to cover the IRA expenses.  NOTE: The myDirection website requires a self directed account with New Direction IRA and a log in to be functional for your account.

I want to hire a Manager:  In this case the IRA hires the manager at your direction.  New Direction IRA signs the agreement after you have approved it.  The manager controls all the monies of the property and you cannot have personal access to the money.  A manager can do as much or as little as you direct and does not have to be licensed according to our or the IRS requirements but may not be a close family member according to the IRA requirements.  The manager is paid by the IRA and is required to furnish the custodian with income/expense reports on at least a quarterly basis accounting for the IRA monies. Keep in mind this manager will have 100% control of the monies generated by the property so choose wisely.  The manager must also sign an acknowledgement indicating that he/she understands that the IRA is the owner and that periodic financial reports must come to New Direction IRA in addition to any reports you receive.

One of the primary concerns of your self-directed IRA administrator is to keep your account tax-deferred (or tax-free if a Roth).  To this end, the monies of the IRA must be accounted for and you must not have access to or use the IRAs money.  You nor close family members may not use the property.  There are other rules which your real estate broker or custodian can help you with when your IRA buys real estate.   Real estate is the number one investment held in self-directed IRAs, maybe it’s the right one for yours’.