How can you prove your client has IRA basis (after-tax funds) when it hasn’t been reported to the IRS? If the IRA basis cannot be proved or reconstructed, then those after-tax IRA funds (the basis — which should come out tax-free), will be taxed when withdrawn, and this will result in a double tax on those assets. A recent case might provide some insight.

The U.S. Tax Court ruled that hardship distributions from a 401(k) and an IRA were taxable and subject to the 10% early distribution penalty. The court also allowed the IRA owner to claim a portion of his distribution as a tax-free return of basis, even though he had never reported his IRA basis to the IRS. (Gustavo E. Morles v. Commissioner, T.C. Summ. Op. 2015-13, Feb. 23, 2015)

Gustavo Morles was a faculty member of the University of Phoenix and participated in their 401(k) plan. In 2010, he was unemployed and having some financial trouble. He took distributions from both his 401(k) plan and IRA, and used some of that money to pay his rent and avoid eviction.

Morles received a $6,893 distribution from his 401(k) plan in 2010. The plan distribution was reported to him and to the IRS on Form 1099-R, which showed the entire distribution amount as taxable (i.e., there were no after-tax funds). He was under age 59 ½ at the time of the plan distribution.

PAYING THE RENT

Morles also had a small IRA that he used to pay his rent. His IRA was funded in 2008 with a $1,000 contribution, but he didn’t take a deduction for that contribution on his 2008 federal income tax return. He only had one IRA and never made another IRA contribution or took a distribution before he took a $951 early distribution in 2010. He received a Form 1099-R from the IRA custodian reporting the distribution.

Morles’ 2010 taxes were done by a paid tax preparer, but neither his 401(k) nor his IRA distribution was reported as income for the year. As a result, the IRS sent him a tax bill for the unreported income.

In a notice of deficiency dated April 2012, the IRS determined that Morles owed $4,789 as a result of his errors. Morles believed the distributions were tax- and penalty-free, and the issue wound up in Tax Court, where Morles represented himself. He argued that neither distribution was taxable because he was suffering economic hardship, including the threat of eviction.

The court ruled that both distributions should be reported as income and that the 10% early distribution penalty applied. It determined that the 401(k) distribution was fully taxable because there were no after-tax funds in the plan. The court also rejected Morles’ argument that hardship distributions from a company plan are tax-free because he provided no evidence that the tax code offers such treatment — probably because it doesn’t.

The IRS believed the entire IRA distribution was taxable, since Morles had never completed a Form 8606 to report his nondeductible IRA contribution. Morles, however, believed it was tax-free because his IRA distribution was less than his initial $1,000 IRA contribution. In his mind, the IRA distribution was nothing more than a tax-free return of his investment. The court allowed the IRA basis and ruled that the IRA distribution was partially taxable and partially tax-free under the
pro-rata tax rule.

Although Morles did not properly report his nondeductible IRA contribution, the court said he could prove that he had basis (after-tax funds) through other means. Furthermore, it indicated that there is nothing in the tax code that explicitly prevents an IRA owner from claiming basis that was not initially reported correctly.

The court noted that Morles did not take a deduction for his IRA contribution at the time it was made. Accordingly, his $1,000 contribution for 2008 was a nondeductible IRA contribution that created basis.
Although Morles only had one IRA that was funded solely by the $1,000 nondeductible contribution, it appears that his IRA had investment gains. Those gains are pretax funds, which are taxable and distributed ratably with his after-tax funds under the pro-rata formula.

Ultimately, the court ordered Morles and the IRS to redo their math and take into account the after-tax funds that were part of his $951 distribution.

The court agreed with the IRS that the 10% penalty applied to both distributions because Morles was under age 59 ½ at the time. Since his 401(k) distribution was fully taxable, the 10% penalty applied to that entire amount. On the other hand, since the court ruled that Morles’ IRA distribution was partially tax-free, the 10% penalty only applied to the taxable portion of his distribution.

REPORTING AFTER-TAX AMOUNTS

When after-tax funds are contributed to an IRA, they must be reported on IRS Form 8606. By reporting such amounts, the IRS knows certain funds in the IRA have already been taxed, and cannot be taxed a second time when they are later distributed.

After-tax funds can be added to an IRA in one of two ways: either via nondeductible IRA contributions or via rollovers of after-tax retirement funds that were held in an employer plan, such as a 401(k). Once inside an IRA, after-tax funds can generally only be withdrawn under the pro-rata rule, where each dollar withdrawn is partially taxable and partially tax-free, based on the percentage of after-tax money in the account.

REESTABLISH BASIS

If clients add after-tax money to their IRA during the year, they must file a Form 8606. However, failing to timely file Form 8606 does not automatically mean a client will be unable to claim that a portion of their distribution consists of after-tax funds and thus is nontaxable. They’ll just need to find a way to prove how much of their distribution, in fact, comprises after-tax funds.

One way to find any unreported nondeductible contributions is by checking IRA statements. You may also be able to track down Form 5498 (IRA Contribution Information) for prior years, which would show if any IRA contributions were made.

Once you figure out which years your client made contributions, look at the tax return for applicable years to see if a deduction was taken. If you find a year where an IRA contribution was made but no deduction was taken, then you can assume that a nondeductible IRA contribution was made. Note that nondeductible IRA contributions started in 1987, so there’s no point in going back and scouring statements and returns before that.

Assuming you can prove prior basis, clients may want to file Form 8606 to bring it up to date. Clients should be sure to keep any supporting documentation in case the IRS questions the newly discovered basis.
Advisors can help clients avoid a double tax on IRA basis by checking to see if they made nondeductible IRA contributions and have reported them correctly.

Updating Form 8606 basis information will be helpful to clients and their tax preparers, as well.  

Ed Slott, a CPA in Rockville Centre, N.Y., is a Financial Planning contributing writer and an IRA distribution expert, professional speaker and author of several books on IRAs. Follow him on Twitter at @theslottreport.

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