Unrelated Business Income Tax – UBIT for Solo 401(k) & IRA accounts

If you talk to the average CPA, he’ll tell you that UBIT is the boogeyman and is to be avoided… always. Discussing this topic with an above average CPA (such as Eric Wikstrom of Integrated Wealth Strategies) yields different advice.

The Two Types of UBIT

  1. Triggered from a trade or business – if a tax exempt entity (such as an IRA or 401k) owns a trade or business, the income of that business is taxed at trust rates (i.e. very high tax rates). Both IRA & Solo 401k accounts are subject to this type of UBIT.
  2. Triggered from ownership of leveraged real estate – if a tax exempt entity (including IRA) owns real estate leveraged with a mortgage loan, the portion of that income attributable to the mortgage loan is taxed at trust rates. This type of UBIT is specifically referred to as UDFI – Unrelated Debt Financed Income. Solo 401k accounts & other qualified plans are exempt from UDFI.

Trust tax rates are very high, so it might make sense to avoid Type 1 UBIT at all costs. On the other hand, a close examination of UDFI tends to revoke its “boogeyman” status.

The reason UDFI isn’t a detrimental cost is that non-recourse mortgage loans (the only type an IRA/401k can legally obtain) are typically only offered at a 65% loan-to-value maximum. So this means that the UDFI tax is only payable on up to 65% of the property’s net income. (That’s right – net income. You do get to deduct depreciation and other expenses before paying UDFI tax).

Let’s examine a simple comparison of the taxes payable on net real estate income with 50% leverage:

Example A

IRA Individual
Net Income 10,000 10,000
Tax Paid 800 2,800
Effective Tax Rate 8.00% 28.00%

Example B

IRA Individual
Net Income 100,000 100,000
Tax Paid 16,229 28,000
Effective Tax Rate 16.23% 28.00%

The gap between the dollar amount of taxes paid widens as the income increases:

Let’s go back and look at Example B. Take the difference in taxes and examine the long term effects of 25 years of investing and compounding returns. These charts assume a 15% annualized ROI:

Example B1

This uses an effective tax rate of 16.23% for UDFI

Example B2

This uses an individual tax rate of 28%

The result? The IRA has a balance of $631,385.87 more than the individual does.

Conclusion

It might make sense to avoid Type 1 UBIT, while Type 2 UBIT (UDFI tax) results in less taxation than the alternative of investing with individual funds.

Reader Interactions

Comments

  1. The most simple and direct way to handle investment of your plan funds into a partnership (such as an LLC) is to let the manager or general partner know up front that:

    1. Your plan’s investment cannot carry any kind of guarantee for any loans of the partnership.
    2. You must be notified each year of the details (amount) of any mortgage debt on real property owned by the partnership.

  2. If I have an LLC funded by an IRA, and the LLC has income, and the LLC elected to be taxed as C corp, does that trigger UBTI?

  3. @ Tom – Not only does having income taxed at the C Corp level not trigger UBIT… it would un-trigger UBIT if it would have been otherwise due because of the fact that you are paying Corp taxes.

    The idea behind UBIT is that when tax exempt entities own businesses that produce income, they enjoy an unfair advantage over the normal taxable business. So UBIT is applied to level the playing field. If the tax exempt entity owns a C Corp, then it pays corporate taxes and their is no more unfair advantage to level out.

  4. I have a defined benifit plan and want to purchase some S corp stock , Is that ok ? and I want the income (distributions) to go to my trust dbp. What would the tax rate be ? higher than the other shareholds or lower ?

  5. John,

    To be candid, I have little knowledge and experience with DB plans. For 97% of self directed investment situations they are not a good fit because contributions have to be the same every year. If the business has a bad year, the contributions must still be made. If the business has a good year, higher contributions cannot be made. Additionally, because of the actuarial work involved, they to cost 20x more per year in administrative fees to maintain than a Solo 401k.

    Also, just as an FYI, there’s nothing that prohibits a retirement plan from purchasing stock in an S Corp. When that happens, however, the S Corp loses it’s S status and becomes a C Corp.

    If you used a retirement plan to purchase membership units in an LLC taxed as a partnership, your UBTI tax would probably be much higher than the other shareholders.

    If you used a retirement plan to purchase stock in a C Corp, UBIT would not be due because the Corporation would pay Corporate taxes.

    Jeff

  6. For a trading business, leverage is often greater than 10:1, so it seems that UDFI would be a big potential concern here. In the case of a properly formed LLC that is owned by a self-directed Roth IRA, where the LLC is a professional trading business that trades in leveraged instruments such as futures or spot currency, is UDFI or UBIT going to be triggered? If so, is there a better structure for the LLC other than to be owned by a Roth IRA?

  7. Karl,

    Firstly, if YOU run a business using your Roth IRA LLC it will be a prohibited transaction because YOU, a disqualified person, are running it

    Secondly, if an IRA owns part of a business that is structured as an LLC taxed as a partnership (or any other pass through entity) UBIT will need to be paid on the entire net income of the business. Alternatively, if an IRA owns part of a business that is taxed as an entity (such as a C Corporation or an LLC taxed as a C Corporation) then UBIT does not need to be paid. UBIT is designed to remove an unfair advantage of a business not having to pay the income taxes that a competing business pays. So when that business is taxed as a corporation, then there is no unfair advantage that needs to be removed and thus no UBIT.

    Your first sentence was “For a trading business, leverage is often greater than 10:1”. Make note that a trading business will trigger UBIT type #1 described in the post above, and, as said, there is a bigger problem if you run it.

    You’ll probably find the best results in calling us to discuss so we can understand more about what you’re aiming to accomplish. We’re at 877-903-2220.

  8. I have several clients who I perform financial planning for, who are interested in managed accounts for their IRA. One idea that I have is setting up a LLC, in which each IRA would own a percentage of the IRA. I would act as the manager of the IRA, and manage the investments held in the IRA. I would charge a fee based on the size of the IRA. Is this feasible?

  9. @Russell – It is possible, yes. It sounds like you should have an registered investment adviser license. If you were an investment adviser representative (under an RIA company that isn’t run by you), then you would need to disclose ownership of LLCs to your supervisors.

    Your question seems to be more of a securities regulation (SEC/NASD/FINRA) question; that’s not my area of expertise.

  10. Hi Jeff,

    Very interesting… So, I’m wondering if an IRA can fund an LLC/Corp with both a capital investment (ie, stock) and a business loan as well. Assuming the business loan is properly structured (like you’d get at a bank), and that the interest rate would properly reflect the risk of lending to a small business (higher rather than lower), is this something that can be done?

    It seems like you could put more money into the IRA, escaping taxes on the interest paid, and reducing the taxes paid by the company, without running afoul of the contribution limits.

  11. Hi Jeff,

    Actually, I’ve got another question too. In the scenario where a Self Directed IRA buys a property and rents it, isn’t the IRA beneficiary generally the person who collects the rent, pays the mortgage, etc. and keeps the checkbook? Not paid for his trouble too, right?

    So, if there were a personal property rental business and its only customer was MyPersonal Corp., or if the business bought and sold widgets, and its only customer was MyPersonal Corp., wouldn’t those two scenarios be pretty much the same thing as the rental example above?

    1) Such that there is no prohibition for IRACorp to do business with MyPersonal Corp. and
    2) also the unpaid IRA beneficiary (me) could collect checks, write checks and keep the checkbook? I would be the “manager”, but not the “member”?

    Would that work? I hope I’ve stated my question well enough.

    Tx,

    George

  12. In reference to “Karl’s” question regarding ROTH IRA which owns and runs an LLC taxed as a corporation/Prohibited Transaction.

    Regarding the above mentioned question, if the LLC Operating Agreement allows for member participation, and assuming that it was the ROTH IRA which organized the LLC and it was not an LLC which you previously owned or organized and tried to have the ROTH buy your interest from you, that said here is my question:

    I was under the impression that, assuming the Operating Agreement provides for member participation, the ROTH IRA Trustee’s participation only does not trigger a prohibited transaction but the Trustee receiving ANY FORM of compensation from the entity, a related party, or the IRA for it’s participation in the LLC would trigger the PT. So, literally, any participation in the LLC by the Trustee would have to be unequicoally, 100% free from any and all forms of any type of compensation to the Trustee. The IRA alone would be the only one to recieve benefit. Is that understanding incorrect?

    Thank you for reviewing my question on such a “splitting hairs” topic.

  13. @Chris – First off, when you say the Roth IRA is the member, you are technically referring to the custodian, a trust company. You won’t find a custodian willing to participate in running a business because they don’t offer such services.

    More importantly, a disqualified person can’t just do whatever they want as long as they don’t receive compensation. Retirement plans are for passive investing. So the DQP serving as manager of an IRA LLC can do things like make decisions, but shouldn’t be running a business.

  14. Jeff, this is an excellent forum, thanks. I helped my girlfriend set up a Roth SDIRA. Though nothing is certain, I trust her fully, and help manage her financial affairs. She’s using an LLC with bank acct and EIN for checkbook control. We are not married but may be in the future; then I’d be in a position to benefit from this IRA.

    I’m real estate investor with rentals, flips, land held for spec., etc. Since I am currently not a “disqualified person” I want to sell property or two or more that I own outright on non-recourse, low-down-payment terms into her SDIRA at my cost + perhaps a small profit. One might be a house that’s lease-optioned for $600/mo. for a payment on a CD of $300/mo, from a buyer who may cash me out in a few months. My goal is to direct profits from a few of my better deals into the non-taxed Roth IRA. These are properties that I’m pretty sure won’t present issues or expenses that her small IRA won’t be able to cover (major rehab, etc.) over time.

    Does a Roth SDIRA face any UBIT or UDFI taxation? Am I violating any other IRS rules here?

  15. Handy,

    UBIT & UDFI taxation is the same across the board for all IRAs.

    As for the prospect of becoming a disqualified person to her Roth IRA in the future, just make sure that you don’t have any continual business arrangements between the Roth IRA (or Roth IRA LLC) and yourself at the time of the marriage.

  16. What is the tax disadvantage of having a short etf in an IRA?
    Like shorting the S&P 500 or the NASDAQ. Would this cause
    taxable problems to a client?

  17. Jim,

    An ETF is really just an investment fund. So your client would be buying shares of an investment fund. I don’t see any reason why ownership of an ETF would create any kind of tax ramifications that could be considered disadvantageous or advantageous. The IRA wouldn’t be using leverage to own the asset. Because your client will likely own less than 25% of the ETF, when the ETF manager uses leverage it is the fund using the leverage rather than the IRA. See my post on the “plan asset rule“.

    Like with virtually all other publicly trades securities, the IRA accountholder would not be taxed on the income or gains of the investment, and they would later make taxable distributions to get the money in their hands for personal use during retirement years.

  18. Your blog is a great resource and service, thank you. I’m hoping “non-recourse mortgage loans” include seller financing as well? I plan to buy real estate in the name of my Sunwest Trust/SDIRA-owned, single-member LLC with 95-100% financing from a motivated private seller. If I sell it in a month (or a year), pay off my seller and make a tidy profit, is that profit–capital gains, really—also subject to UBIT based on the leverage used, or does UBIT only apply to income, like rental income? If UBIT does apply to the capital gain, then I’ve actually made my tax bite bigger, haven’t I?

  19. Andrew,

    I appreciate your kind words about my blog’s usefulness. Yes, a seller could carry a non-recourse mortgage note.

    *** Quick side note: Solo 401k plans are generally exempt from UDFI, but not in the case of seller financing. ***

    95-100% financing? I’d say that seller is very motivated. UBIT does apply to capital gains as well.

    “UBIT applying to capital gains makes my tax bite bigger” … that depends on how you look at it. If your IRA is the only source of funds to do the transaction, then the alternative is to distribute your IRA in order to do the transaction as an individual. In that case you have 1) distribution taxed at ordinary income 2) capital gains taxed, and 3) income and/or gains taxes on all future investments after you exit this one.

    So, in general, I’m a fan of deferring taxes at all costs. If you do this one transaction and then follow it up by a dozen others that don’t trigger significant UBTI… then you get to benefit from more aggressive compounding of returns all in all. Yes, you later have to pay taxes on your IRA distributiuons, but deferring taxes is a powerful thing. The more rampant inflation, the more powerful it is to defer taxes. With the trillions of dollars currently being printed up every quarter, you may want to expect hyperinflation around the corner. So paying distribution taxes years down the road with relatively worthless dollars will probably be a superior wealth building strategy to the alternative.

    Jeff

  20. Jeff, I’m sorry, but I’m getting confused. If the tenant rents I collect into my Roth SDIRA-owned LLC are UBTI-taxed and the Cap. gains made in that LLC are also UBTI-taxed, what’s the benefit of having a SDIRA in the first place if the income made inside it is all immediately taxed? By that criterion, it seems like mutual funds that generate dividends would also be taxed. Are UBTI taxes on the Roth SDIRA/LLC due the every April 15, or are they deferred until distribution in retirement, at the relevant rate that applies then? If the former, it sounds like a worse paperwork and tax headache than I have already! I was hoping to avoid keeping track of expenses, rents, and basis inside the SDIRA/LLC. Sigh. Thank you.

  21. Andrew,

    I don’t want to sound like a broken record, so I invite you to read my last comment more carefully for my answer to your first concern.

    UBTI is taxable income, so just like with all taxable income, the applicable taxes are due each year.

    Keeping track of income and expenses is a part of any good investment plan. I think you should want to do that regardless of tax or legal requirements.

    Also, a very simple solution for your desire for UBTI avoidance is to generate some self employment earned income in order to qualify for the Solo 401k instead of the IRA LLC. With a Solo 401k UDFI-type UBTI is not created and generally no taxes are due on the income or gains from mortgage-leveraged, plan-owed property. I hope this helps.

    Jeff

  22. I have invested IRA money in a real estate investment structured as an LLC. The LLC is generating a tax loss as reported on my K-1, and is expected to show tax losses for the next few years. As land is developed into commercial lots, and sold for a profit, the IRS deems this as UBTI. Can I accumulate the losses in the previous years to offset the UBTI? Or do the losses and income have to be used in the that same tax year?

  23. Doug,

    I am more familiar with the UDFI-type of UBIT (triggered by leveraged real estate rather than active business activity). With UDFI, my understanding is that losses can carry forward, which leads to be believe that losses can be carried forward with all UBIT. I am not certain, so be sure to check with your tax advisor.

    Jeff

  24. Jeff – Great blog. I am a RE investor already investing in my self-directed Roth IRA, sometimes directly with the custodian and sometimes using a Land Trust with a Trustee (qualified individual) and the IRA as beneficiary for an individual property. The Trust purchases a property (sometimes with non-recourse loan and sometimes with IRA funds), rehabs and resells for a profit. When we’re done the Trustee dissolves the Land Trust, closes out the bank account and I send the funds back to the IRA account with the custodian. Is this type of transaction subject to UBIT/UDIT tax? I haven’t been doing it because I thought the whole purpose of a Roth IRA was that all earnings were non-taxable; i.e., your contributions were already taxed. I have been doing this for several years. Am I missing something here?? If it is taxable, what form do I file? It’s been very difficult to find anyone, especially CPAs that understand this.

    Really appreciate your comments and help.

  25. David,

    This is somewhat of a gray area. The question is whether the activity is to be considered passive investments or an active business. There is not line drawn to clearly separate the two, and the IRS would decide on a case-by-case basis in the event of an audit. The more frequently you buy property, the less time you hold property, the more rehab work that needs to be done, the more it appears to be an active business of dealing real estate.

    If you do have an active business, you would pay UBTI tax, at trust tax rates (yikes!), on all profits. Alternatively you could use a C Corp (or an LLC that has elected C Corp taxation) for this third party person to run the business funded by your IRA, and when C Corp taxes are paid it voids the need to pay UBTI tax. The C Corp taxes would generally be lower than trust taxes.

    Keep in mind that when you invest in a company in the stock market, it’s almost always a C Corp that pays Corp taxes. So, apples to apples, if you were to structure your future transactions through a C Corp and pay Corp taxes you wouldn’t be losing your tax advantage of the retirement account… you would just more clearly be able to see the nature of the tax advantage.

    Jeff

  26. Will UBIT paid increase the cost basis of ira ie at the time of distribution is this incomepost ubit money component taxable.
    any reference.

  27. Sorry to clarify my previous question: Once you have paid tax at the trust level that money is not taxed in any form on distribution.
    In case of IRA generally no tax on any thing till distribution except UBIT. But after paying ubit, does that component on which ubit paid become cost basis for a traditional ira and is free of future tax as other wise we will be taxing this income twice!!

  28. Lokesh,

    You would be taxed on the income twice.

    In my opinion, this doesn’t equate to a logic that says don’t invest in real estate with an IRA and pay UDFI. The reason is inflation. Looking at options that involve paying taxes at different times is deceiving as those taxes are measured and payable in dollars even though the value of the dollar is much lower in the future than it is today.

    In other words, it can still make sense to pay UDFI on mortgage-leveraged IRA real estate investments because you are still deferring the lion’s share of the taxes. Chances are that in the future the government will continue to meet its income shortgages by inflating the currency rather than significantly raising taxes. In that case, the argument for tax deferral is magnified.

    Jeff

  29. I was thinking of making this proposal to my dad:

    he uses some of his IRA money to be transferred a self directed IRA that owns a LLC and buys a condo without a loan. Or buys part of the condo (would it be possible for him to buy a share of the condo with his qualified money and then I purchase a share with non- qualified money?)

    after the llc owns the property I would pay the property tax and the HOA but also collect rent income.

    later on the llc sells the property and my dad would keep his share with the appreciated amount in his IRA.

    does this sound even a tiny bit plausible? or can you think of a better option (my dad wants real estate without dealing with additional costs, I would like the additional income while taking on those costs)

    thank you,
    Mike

  30. Here’s a question that is sort of a follow up to that posed by Loekesh. Although you apparently do not get a cost basis in an IRA when you pay UBIT or UDFI, any guesses about what may happen if, in the year that UBIT or UDFI would otherwise be imposed, you convert the IRA to a Roth IRA, as permitted in 2010? Any interesting wrinkles here? Clearly you wouldn’t get taxed at distribution (since it would not be a Roth), but do you end up literally paying the tax twice in the year of coversion (or the UBIT/UDFI in the year of conversion and the tax associated with the coversion the following two years, if you take advantage of the tax split next year)?

  31. Hello,

    I have been investigating IRA-llc’s for awhile and trying to figure out this UBIT thing. This is the first site that actually attempts to deal with this relatively complex issue. I think I get it, I wanted to fund a business with my Roth IRA and have the profits flow tax free into my IRA, no good even though there are a bunch of sites telling you you can because if you do the profit gets taxed at ubit rates which are relatively high. Is this correct. Second, I want to get around it. What if my Roth IRA buys land and constructs a building to rent out specifically I am thinking of a commercial project. In addition I want to have a non involved say in how the business is run, I let a non lineal relative or friend or my long time gf run the business, assuming she will let me get away with not marrying her for a few more years, actually never mind that one I probably have a better chance going against the IRS. Anyway a friend runs the business, (I can keep an eye on it but I am not working there not involved and obviously no salary due to prohibitions) pays my IRA-llc rent is the rent subject to UBIT. Also this would be 100% ira funded no borrowing required. Add on just out of curiosity could my IRA also make loans to said business and receive interest and would that interest be subject to ubit. Thank You.

    Chris

  32. UBIT would only apply to your IRA’s ownership in a business if that business was a “pass through” entity such as an LLC, LP, or partnership. If it is structured as a C Corp, then UBIT does not apply because the business has already paid its own taxes and the IRA would merely be receiving dividends.

    Generally, rent, interest, and dividends are exempt from UBIT. That should answer your second question. The exemption for rent goes away when mortgage financing is used for leverage, but from your explanation that does not seem to be the proposed case.

    I hope this helps.

    – Jeff

  33. Love the site! Here is my question. We are forming an LLC to run a business. Paying cash for the raw land and then taking out a construction loan to make improvements to run the business. My percentage in the LLC will be funded from my traditional IRA, this is a flow-throw LLC. I believe this will be subject to UBIT not UDFI. But the construction loan has me confussed. Can you clarify which one I pay? BTW, it is very difficult to find someone who knows these answers.

  34. Linda,

    Yes any disqualified person receiving compensation from an LLC funded and owned, in whole or part, by your plan would be prohibited.

    If the IRA’s investment does not result in any compensation or benefit to any disqualified persons, then you won’t have a prohibited transaction.

    I hope this helps 🙂

    – Jeff

  35. Jeff,
    What happens if you want to use the IRA LLC property after you turn
    59 1/2? I understand you can take the value as a distribution. How is the distribution taxed if the property still has a loan against it? Doe this make financial sense to do? We cannot afford to purchase the property outside of the IRA.

  36. Jeanne,

    Although elaboration is not within the scope of this post or comment thread, I believe that acquiring property inside a plan and distributing the property later is a bad idea that will maximize taxes instead of minimize them. I may elaborate more in a future post that is specific to this topic.

    Jeff

  37. Jeff,

    I have an S corp which is involved with renting property. I’m
    intending on rolling over a 401K from a previous old job to a soloK in my S corp to use those funds to buy more real estate and rent it also.
    I talked to an attorney who told me that the fact that the S corp
    is involved in the same type of investments as the 401k, that i could
    trigger UBIT even though both are clearly passive incomes. His argument seemed to be based on the fact that the soloK’s passive income now can be looking like a “business” since the transactions are so similar to those outside of the soloK.
    What do you think?

    Extremely helpful blog.

    Thanks,
    Bill

  38. Bill,

    Thanks for the compliment on the helpfulness of the blog 🙂

    I think your attorney’s concern lacks basis.

    Jeff

    • @George – This strategy has certainly never been addressed by DOL or IRS. In one sense, I could see how it shouldn’t introduce any problems because the IRA still receives the sole benefit of the investments regardless of the structure… but in another sense there are a few potential problems. If this is a business and you are operating it, I believe that goes beyond the administrative duties in which you can participate as a disqualified person. In these types of circumstances, there aren’t uniform guidelines for how compliant your plan is, and it depends much on your actual situation. I’d be curious to hear more. Call my office 877-903-2220.

  39. Can I hold Master Limited Partnerships in my Roth IRA, or will the income be subect to UBTI? I thought all income in a Roth IRA grew tax free.

  40. Shanti, a MLP is a publicly traded security, and I think publicly traded securities may be exempt from UBIT. I’m not sure because I put much more focus on going into good investments, and for my personal strategy, that rules out all publicly traded securities, except for the short positions I took when the market was crashing. But I still consider those to be more speculation and gambling, but it was fun.

    All in all, I’m not much help in buying securities. Good luck.

    Jeff

  41. Retirement plan investor invests part of his retirement account in a leveraged fund, organized as a LLC. Relevant income from the LLC’s leverage becomes UBTI, right? Okay. Can the retirement plan investor assume (fund) his share of the LLC’s debt via additional contribution to LLC and avoid UBTI? Under this scenario, the retirement plan investor would not be benefiting from leverage, simply funding his share of the debt by making a larger contribution/investment in the LLC. Any thoughts on whether it would avoid UBTI? Have you seen that option used before?

  42. Hi Jeff,
    I made a large oil & gas investment in my self-directed IRA. I was scammed by the principals who offshored the money. Can I deduct this total loss against any UBTI that I may be required to pay from other investments that I hold?
    Thanks,
    Fred

  43. Hi Jeff,
    I have a SDIRA with checkbook control and last year I purchased and rehabbed houses in my sdria. I sold 5 properties and rented three and made a profit on the 5. I told my CPA about what I did and do I have any UBTI tax due and his answer was no and he also contacted another CPA who also said no. How do you determine if what I did was regulary carried on like a commercial enterprise. If I had done this on a commercial level I would have used financing and would have done a lot more on the sell side. How do I determine if I owe the tax. I do not want this to come up down the road and be liable for the tax and resulting penalties.

  44. I have a SDIRA set up as an LLC. It invested in a rehab & flip partnership that generated income. If I make an election to have the LLC taxed as a C-Corp, can I avoid the trustee rate & if so do I report the income on an 1120 as opposed to a 990T.

  45. Any idea how the sale of MLPs (Master Limited Partnerships) is taxed when the MLP is held in an IRA?

    I’m familiar with how to calculate the UBTI, if any, from the distributions, but am not sure how to treat the proceeds from a sale – would there be possible UBTI from the reduced cost basis but the capital gain between purchase and sale price be sheltered by the IRA, or what?

    Everyone talks about how to hold MLPs in IRAs but i haven’t seen a single person describe the selling process.. they must be happy with them!

  46. I have a SDIRA with an LLC that owns 2 vacation rentals. They are owned free and clear (no mortgage). Most of our rentals are from two to three nights in duration. My accountant says that the IRS views this as a hotel versus a dwelling rental, which he says triggers UBIT in the earnings.

    Does this sound correct?

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