Warning: Don't let administrators act as custodian January 7, 2009
Posted by Jeff Nabers in : Self Directed IRA Solo 401k , trackback
To have a self-directed IRA, unlike a Solo 401k, you must have a self-directed IRA custodian… and you should stay away from unregulated companies masquerading as a custodian. A self-directed IRA custodian is one that will have less investment restrictions than the more common tradition stocks/bonds/funds brokerage-type custodian, and they usually allow investment into real estate, private companies, and other alternative assets.
An IRA is technically a trust, and a custodian is basically a trustee who performs fewer duties than a trustee usually would. As the name suggests, the sole duty is custody-holding assets and/or property on behalf of the trust.
The Internal Revenue Code says that the IRA custodian role can only be served by:
- A bank
- A trust company (this is the most common type of company to serve as self directed IRA custodian)
- A company specially & specifically approved by the IRS (this is very rare)
So, essentially, in the self directed IRA market, most custodians are chartered as trust companies. A trust company is basically a bank that doesn’t lend money. Trust companies are usually audited and regulated by the same state or federal agencies that audit and regulate banks. There are a couple dozen trust companies who offer custodial services for self-directed IRAs. There is also at least one company that offers custodian services without being chartered as a bank or trust company.
The risks of hiring an illegitimate custodian
- Little to no regulation. Banks and trust companies are audited and regulated by state or federal regulators.
- Risk of failure or fraud – Unregulated companies have nothing to lose. Starting and maintaining a bank or trust company is costly. A regulated bank or trust company is usually not going to misappropriate funds or just disappear overnight. This is because it has a lot to lose: the money it took to start and maintain the company and the future profits it will enjoy if it plays by the rules and stays in business.
- Risk of failure or fraud – Unregulated companies have no minimum net worth requirements to be in business. Starting a bank or a trust company requires the owners to meet minimum net worth requirements and have a clean criminal record. An unregulated company has no such requirements – there is no capitalization requirement in most states to just register a corporation or LLC. People operating an illegitimate custodian company have gone through no regulatory approval process. They could have declared bankruptcy recently, have felony convictions, and have a net worth of less than zero dollars.
- Your IRA might be deemed to have been taxably distributed when you hired the illegitimate custodian. Because the law defines an IRA as a trust held at a trust company, one held at an illegitimate custodian is technically not an IRA at all. When you rollover your old IRA, the funds must arrive at a real custodian within 60 days. If that doesn’t happen, you owe income taxes (and possibly early distribution penalties if under age 59 1/2 at that time) on the account balance. Putting the funds at an illegitimate custodian for more than 60 days means you’ve technically distributed your IRA. If this isn’t dealt with for several years, you may be racking up interest to the IRS in addition to the taxes. As salt in the wound, the funds left over will not have any tax favorable treatment for future profits.
Coming up in Part 2 of this series: Signs that your custodian may not really be a custodian.
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Comments»
[...] See the original post here: Warning: Don’t let administrators act as custodian [...]
are you currently taking new clients?
Hi, Leah!
We were working hard on a project and closed our doors for a bit. But they’ll reopen tomorrow. See this:
http://www.jeffnabers.com/2010/05/10/how-to-benefit-from-last-weeks-stock-market-circus/
Jeff
The real question is whether the IRS has any privilege to specially approve unregulated trust companies as custodians or trustees since the primary function of the IRS is to collect taxes, not provide oversight of unregulated entities – which is designated solely to the OCC or the FDIC.
Since the IRS is not a regulator, perse, state approved trust companies and LLC’s need more than IRS approval to provide the public with confidence that they are not mere fly by night operations, and so they do have incentive to be honest, and accountable. Stock brokers with trust departments do not seem to meet the standards required of OCC or FDIC to provide that confidence. Another problem is merger/aquisition so that such firms avoid the accountability that cannot lapse because they are properly monitored and regulated by regulators designed for the job, and that do actually regulate.