As many of us remember, the Setting Every Community Up for Retirement Enhancement Act of 2019 (“SECURE Act”) sent shockwaves through the Estate Planning community with its significant changes to the rules regarding distributions from Individual Retirement Accounts (“IRAs”). To recap, the SECURE Act repealed the maximum age at which a taxpayer could contribute to their IRA, increased the age at which the taxpayer needs to begin withdrawing funds from the IRA, and eliminated the lifetime stretch benefit for any beneficiary other than the newly created category of beneficiary called the Eligible Designated Beneficiary (“EDB”). EDBs consist of surviving spouses, children who have not yet reached the age of majority, chronically ill or disabled individuals, and any other individual not more than ten years younger than the participant, or appropriately structured trusts for the benefit of those individuals. Any beneficiary other than an EDB was subject to the newly created 10-year rule. The 10-year rule would operate like the 5-year rule that existed prior to the SECURE Act. This meant that the non-EDB need not worry about RMDs and only needed to withdraw all funds by December 31st of the year of the tenth anniversary of the participant’s death. Sounds simple and easy enough to understand and implement, right? Not so fast…
The ink was barely dry on the SECURE Act when the Internal Revenue Service (“IRS”) took a position that changed the perceived operation of the 10-year rule. In the 2020 updated version of Publication 590-B, the IRS included an example that required a beneficiary subject to the 10-year rule to take annual withdrawals for nine years and then exhaust the IRA fully by December 31st of the year of the tenth anniversary of the participant’s death. This pronouncement meant that the 10-year rule operated completely unlike the 5-year rule. Even though Estate Planning professionals and taxpayers cannot rely upon Publication 590-B as “official IRS guidance,” the inclusion of this example understandably caused concern. Shortly thereafter, the IRS corrected Publication 590-B by removing that example and confirming that no withdrawals were necessary prior to December 31st of the year of the tenth anniversary of the participant’s death. Considering the proposed Treasury Regulations issued last week, that earlier “mistake” may have been foreshadowing at its finest.
On February 23, the United States Treasury released much-anticipated proposed regulations updating, among other things, the rules regarding RMDs from IRAs. These proposed regulations backtrack on some of the guidance published since the passage of the SECURE Act in 2019. The proposed regulations revert a bit to the incorrect example previously espoused in Publication 590-B and take a nuanced approach to distributions under the 10-year rule. Now, any non-EDB needs to take annual distributions based upon the participant’s life expectancy over the next nine years and exhaust the IRA by December 31st of the year of the 10th anniversary of the participant’s death if the participant reached their Required Beginning Date prior to death. This represents a sharp departure from the operation of the 10-year rule and the advice that most professionals have given their clients since the passage of the SECURE Act in 2019.
Instead of simplifying the IRA Rules, this explanation of the 10-year rule adds another layer of complexity to an already confusing area of the law. Earlier this year, the IRS updated the life expectancy tables which requires recalculation of RMDs for anyone taking distributions from an IRA subject to their life expectancy. Prior to these proposed regulations, only participants, EDBs, and designated beneficiaries who inherited IRAs prior to the SECURE Act used the lifetime stretch. Now, by extension, the tables will apply for non-EDBs who will take under the deceased participant’s life expectancy as well. These changes will undoubtedly confuse many taxpayers and many of their advisors. You can best protect yourself from unintended consequences by consulting a qualified Estate Planning attorney about the impact that these proposed regulations will have on your IRA and your obligation to take RMDs.
While these Treasury Regulations are only proposed regulations, Estate Planning practitioners and clients have good reason to be concerned. This area continues to grow in complexity with changed positions and conflicting guidance. Beginning in 2022, any non-EDB subject to the 10-year rule needs to take annual distributions. This author suspects that we have more to learn on this topic and recommends that the brave read the 275 pages of these Treasury Regulations at https://aboutbtax.com/1Ml. This article focuses solely on the most drastic change contained in the proposed regulations, although plenty of other changes were made as well. The final Treasury Regulations may revert the 10-year rule to its prior version that existed from 2019 through 2021, and many commentators believe that these regulations improperly interpret provisions of the Internal Revenue Code that set forth the 10-year rule. Until we have final regulations, taxpayers have three options: follow the temporary regulations, file a Form 8275-R noting the contrary position to the regulations, or initiate a lawsuit. Just, file a Form 8275-R noting the contrary position to the regulations, or initiate a lawsuit. Stay tuned for additional changes and updates, but in the meantime, follow one of the three options noted herein.
Tereina Stidd, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
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