California Enrolled Agent

Abusive 412(i) Retirement Plans Can Get Accountants Fined $200,000

By Lance Wallach

Most insurance agents sell "412(i)" retirement plans.  The large insurance commissions generate some of the
enthusiasm.  Unlike other retirement plans, the 412(i) plan must have insurance products as the funding mechanism.  
This seems to generate enthusiasm among insurance agents.  The IRS has been auditing almost all participants in 412
(i) plans for the last few years.  At first, they thought all 412(i) plans were
"abusive".  Many participants’ contributions
were disallowed and there were additional fines of $200,000 per year for the participants.  The accountants who signed
the tax returns (who the IRS called “material advisors”) were also fined $200,000 with a referral to the Office of
Professional Responsibility.  For more articles and details, see www.vebaplan.com and www.irs.gov/.  

On Friday February 13, 2004, the IRS issued proposed regulations concerning the valuation of insurance contracts in
the context of qualified retirement plans.   

The IRS said that it is no longer reasonable to use the cash surrender value or the interpolated terminal reserve as the
accurate value of a life insurance contract for income tax purposes.  The proposed regulations stated that the value of a
life insurance contract in the context of qualified retirement plans should be the contract’s fair market value.

The Service acknowledged in the
"regulations"(and in a revenue procedure issued simultaneously) that the fair market
value standard could create some confusion among taxpayers.  They addressed this possibility by describing a safe
harbor position.

When I addressed the American Society of Pension Actuaries Annual National Convention, the IRS chief actuary also
spoke about attacking abusive 412(i) pensions.

A “Section 412(i) plan” is a tax-qualified retirement plan that is funded entirely by a life insurance contract or an annuity.  
The employer claims tax deductions for contributions that are used by the plan to pay premiums on an insurance
contract covering an employee.  The plan may hold the contract until the employee dies, or it may distribute or sell the
contract to the employee at a specific point, such as when the employee retires.

“The guidance targets specific abuses occurring with Section 412(i) plans”, stated Assistant Secretary for Tax Policy
Pam Olson.  “There are many legitimate Section 412(i) plans, but some push the envelope, claiming tax results for
employees and employers that do not reflect the underlying economics of the arrangements.”  Or, to put it another way,
tax deductions are being claimed, in some cases, that the Service does not feel are reasonable given the taxpayer’s
facts and circumstances.   

“Again and again, we’ve uncovered abusive
"tax avoidance" transactions that game the system to the detriment of those
who play by the rules,” said IRS Commissioner Mark W. Everson.   

The IRS has warned against Section 412(i) defined benefit pension plans, named for the former IRC section governing
them. It warned against certain trust arrangements it deems abusive, some of which may be regarded as listed
transactions. Falling into that category can result in taxpayers having to disclose such participation under pain of
penalties, potentially reaching $100,000 for individuals and $200,000 for other taxpayers. Targets also include some
retirement plans.

One reason for the harsh treatment of 412(i) plans is their discrimination in favor of owners and key, highly
compensated employees. Also, the IRS does not consider the promised tax relief proportionate to the economic realities
of these transactions. In general, IRS auditors divide audited plans into those they consider non-compliant and others
they consider abusive. While the alternatives available to the sponsor of a non-compliant plan are problematic, it is
frequently an option to keep the plan alive in some form while simultaneously hoping to minimize the financial fallout from
penalties.

The sponsor of an abusive plan can expect to be treated more harshly. Although in some situations something can be
salvaged, the possibility is definitely on the table of having to treat the plan as if it never existed, which of course triggers
the full extent of back taxes, penalties and interest on all contributions that were made, not to mention leaving behind no
retirement plan whatsoever.  In addition, if the participant did not file Form 8886 and the accountant did not file Form
8918 (to report themselves), they would be fined $200,000.

"Lance Wallach", the National Society of Accountants Speaker of the Year, speaks and writes extensively about
retirement plans,
"Circular 230" problems and tax reduction strategies.  He speaks at more than 40 conventions annually,
writes for over 50 publications and has written numerous best selling AICPA books, including Avoiding Circular 230
Malpractice Traps and Common Abusive Business Hot Spots.  Contact him at 516.938.5007 or visit www.vebaplan.com.

The information provided herein is not intended as legal, accounting, financial or any other type of advice for any
specific individual or other entity.  You should contact an appropriate professional for any such advice.
Call: 516-938-5007
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