Executive Summary
In response to the coronavirus global pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020. A more-than-$2-trillion-emergency fiscal stimulus package, the CARES Act was enacted to ease the effects of the economic damage caused by the COVID-19 pandemic by providing a wide range of relief efforts to help individuals, businesses, healthcare entities, and state and local governments meet short-term cashflow demands. Among the many provisions provided by the CARES Act was the suspension of Required Minimum Distributions (RMDs) during 2020. But since the CARES Act wasn’t passed until March 27, 2020, many individuals had already taken what they thought, at the time, were their 2020 RMDs!
Not surprisingly, many of those retirement account owners and beneficiaries wanted to ‘undo’ those distributions that were no longer RMDs and put them back into a retirement account. For some retirement account owners, that was possible by making a 60-day rollover. But for retirement account owners whose 60-day rollover window had already closed (including the extended window for distributions made on or after February 1, 2020 by IRS Notice 2020-23), or where such rollovers would have been a violation of the once-per-year rollover rule, or where distributions were made to non-spouse beneficiaries, there appeared to be no way to ‘unring’ the RMD ‘bell’.
Cue IRS Notice 2020-51…
On June 23rd, the IRS released “Guidance on Waiver of 2020 Required Minimum Distributions” (Notice 2020-51), which ultimately solved all the problems noted above, allowing anyone who took a distribution (that, but for the CARES Act, would have been a RMD) to rollover that amount until August 31, 2020 .
While the IRS released Notice 2020-23 in April 2020, which extended the 6o-day rollover rule for distributions taken on or after February 1, 2020 to the later of 60 days after receipt of the distribution or July 15, 2020, individuals who took distributions prior to February 1 were excluded from the opportunity and were still unable to rollover their unwanted distributions. Notice 2020-51 provides even further 60-day rollover relief, by extending the 60-day-rollover window for all unwanted 2020 RMD distributions to the later August 31, 2020 date or 60 days after receipt of the distribution).
Notice 2020-51 provides further relief by excluding rollovers of amounts, that if not for the CARES Act would have been 2020 RMDs, from being counted as a rollover for purposes of the once-per-year rollover rule. Finally, while beneficiaries are explicitly prohibited from completing 60-day rollovers under the law, Notice 2020-51 essentially allows beneficiaries to temporarily ignore this portion of the Internal Revenue Code and rollover their 2020 inherited ‘RMDs’ until as late as 8/31/2020.
Ultimately, the new guidance just released by the IRS provides a fair and favorable outcome for people who took their RMDs earlier this year, as those individuals should not be penalized for being proactive and complying with the RMD rules early during the year. However, this is an unprecedented and potentially troubling move by the IRS, given that they do not actually have the legal authority to make this change (it is technically the job of Congress to create and amend laws). The IRS’s action can arguably be interpreted as circumventing well-defined statutes prescribed by the Tax Code, Tax Court decisions, and its own long-standing guidance via Private Letter Rulings (PLRs). While it’s unlikely that anyone will take issue with the IRS’ attempt to be fair and equitable, there’s little question that they seriously stretched their legal authority when issuing this Notice, which may set a troubling precedent moving forward.
Show Notes
#OfficeHours with Nerd’s Eye View Video Transcript
Welcome to this episode of Office Hours. My name is Jeffrey Levine, the Lead Financial Planning Nerd for Kitces.com, and also the Director of Advanced Planning for Buckingham Wealth Partners. Thanks so much for taking a few moments to spend your evening here, talking about nerdy tax stuff.
In particular today, we’re going to focus on the guidance that was released today by the IRS, giving really unprecedented Required Minimum Distribution (RMD) relief. And when I say unprecedented, I truly mean this is an unprecedented amount of relief from the IRS, with respect to any Required Minimum Distributions ever, and with respect to any rollovers ever. And we’ll talk about why that is in just a minute.
But as a frame of reference, if you’re not sure what I’m talking about here, perhaps you’ve been living under that proverbial rock for the last few months. Section 2203 of the CARES Act law that was passed earlier this year on March 27, eliminated Required Minimum Distributions from IRAs and other sorts of defined contribution accounts. So things like IRAs, 401(k)s, 403(b)s, 457(b) plans that were governmental plans, etc., as well as for beneficiaries of any of those types of accounts. So really, this was broad relief from Congress under the CARES Act.
The problem for some people, though, was that the CARES Act was passed on March 27th of this year. That’s almost one-quarter of the way through this year and so, naturally, a lot of people have already started to take their Required Minimum Distributions, either in one lump sum, or perhaps they had taken them in monthly amounts, or perhaps they just didn’t realize that this law had been passed and they forgot to stop an already scheduled RMD or their custodian wasn’t able to process it in time.
So, ultimately, what happens is people receive dollars from their retirement account that they don’t want, that they want to keep in there. They wanted not to take their RMD, but they already took it.
Now, in general, you cannot roll over a Required Minimum Distribution. But when the CARES Act eliminated Required Minimum Distributions for 2020, all of a sudden those distributions that happened earlier this year were suddenly not actually RMDs anymore, right? They were no longer actually Required Minimum Distributions. They were retroactively changed and so, all of a sudden, they became rollover-eligible.
The problem, though, of course was that by the time the CARES Act happened and this information was disseminated, for the client, many of them had already passed that 60-day rollover window, and so they were not eligible to put those dollars back into another account.
So the IRS tried to address some of that earlier this year in Notice 2020-23, where they extended the rollover window for individuals who had taken distributions from their IRA or other types of plan. And they said, “You know what, you can actually roll over those distributions, not just for 60 days, but we’ll extend the 60-day window up until July 15th of this year.”
And that goes for any distribution taken on February 1st of this year or later, which was great for a lot of people but still left us unsatisfied in a lot of ways. For instance, even after Notice 2020-23, there wasn’t a broad relief for individuals who took RMDs in January.
In other words, those individuals who were the most proactive, who were following the IRS rules, as well the Congress’ rules as quickly as they could and being proactive in getting those RMDs out early in the year were the ones who were penalized the most. So it was January RMDs that were still lacking and there were two other critical issues that might have prevented individuals from rolling over their RMD taken earlier this year, notably the once-per-year rollover rule.
Now, the once-per-year rollover rule is a rule that says you can do no more than one IRA-to-IRA or Roth IRA-to-Roth IRA 60-day rollover in a year. And when we’re talking about a year here, we’re talking about a 365-day period. So, for argument’s sake, say somebody who took a distribution in January, and then another partial in February, and then another partial in March; if those distributions came from a traditional IRA, they couldn’t all go back to a traditional IRA because it would have been a violation of the once-per-year rollover rule, even if you happened to catch multiple distributions within that 60-day window.
And Notice 2020-23, the relief that came out in April, did nothing to address that. Frankly, that wasn’t a surprise to any tax practitioners or retirement specialists out there because the IRS has once said that it doesn’t have the authority to give relief for the once-per-year rollover rule. That has been the IRS’s position for years.
In fact, in many Private Letter Rulings and other ways in which taxpayers have received guidance, from the IRS, the IRS has said, “We’re sorry. We can do certain things like give you an extension on the 60 days because we’re explicitly authorized to do that under the law, but we can’t help you out with the once-per-year rollover rule because we have no mechanism under current law to do that.” Well, maybe not anymore. We’ll see. We’ll talk about that in a moment.
The third issue that was still existing – so we had January RMDs that were still a problem. People who were stuck dealing with the once-per-year rollover rule and then, the third category was beneficiaries because non-spouse beneficiaries cannot do a rollover. It says that right in the Tax Code. It’s very clear. It says, “Non-spouse beneficiaries,” not of course in these exact words, but it says in no uncertain terms, “Non-spouse beneficiaries cannot do rollovers at all.” Period. End of story.
Well, today’s Notice resolves all of these issues for people who took RMDs earlier this year. More specifically, Notice 2020-51, again, released earlier today, and if you want to pull the actual Notice, I have a tweet straight earlier where I linked to it. The Notice says that all of these RMDs that were taken earlier in 2020 can actually be rolled over now until, at the latest, August 31st of this year. So you have until the end of August to roll over any unwanted RMD that was eliminated by the CARES Act.
That includes any RMDs that were taken in January. It includes any Required Minimum Distributions that were taken by beneficiaries. It includes any Required Minimum Distributions that if rolled back would have otherwise violated the once-per-year rollover rule. All of these issues have been just…they’re no longer. Poof.
IRS says don’t worry about them, which in theory sounds great, right? But there is a troubling side of this that we do have to reckon with. And that’s that the IRS here is not only going against law; it’s very clear that the statute does not give the IRS the authority to give people relief from the once-per-year rollover rule. It’s very clear that there’s no mechanism in the law to allow the IRS to allow beneficiaries to rollover distributions.
So we have a very slippery slope here, right? It’s good in this case, because it’s the fair outcome. Individuals who took RMDs proactively in January should not be penalized versus the people who delay until the last minute and drive all of us crazy every year and call up on December 30th and say, “Hey, I’ve got to take my RMD.” Right? That’s not really fair to disadvantage those individuals.
But, at the same time, if we are to just to say the IRS, “Well, you could do whatever you want. It doesn’t matter what the law says as long as we get to the right outcome.” That can be very problematic when what you believe the right outcome is and what the IRS believes the right outcome is don’t align.
Now, I think here, we got to a point where the IRS said, “Look. We want to give everybody relief. No one’s going to fight people over this or sue us and take us to tax court over giving people relief.” A lot of people put RMDs back into their account. No one’s fighting to stop the 75- and 85-year-old people putting back the RMDs into their account.
But nevertheless, the way the IRS is choosing to do this is very troubling for a lot of us who have watched the IRS repeatedly deny taxpayers in Private Letter Rulings over the years, who have looked at other IRS guidance and were… Even back in 2008, when they suspended RMDs for 2009, they did it proactively for the following year; there was no mechanism to fix unwanted RMDs for beneficiaries as there was for owners because the IRS said, at that time, “We don’t think we can do this without actual legislative action.”
So I think it’s fair to point out that we’re on a very slippery slope here. Hopefully, this is one of the few times that it’s just in pandemic mode where the IRS has chosen to do this, but it is worth noting that it’s really questionable, the legal authority on which the IRS has chosen to move forward with this guidance.
With that said, let’s just take a few frequently asked questions that I’ve received today. And probably the first one or the most common one, I think about seven or eight people either emailed me or pinged me on Twitter and said, “Hey Jeff, what if we took monthly distributions? Does this now mean we can put back all of those monthly distributions?” And the answer is yes. You can do whatever you want. You can now take all of those monthly distributions, package them up, and roll them back over in one giant check as long as it’s before August 31st. If your client doesn’t have the full amount now but maybe they will by August 31st, they can also put it back in multiple amounts. Those rollovers will not count for purposes of the once-per-year rollover rule.
Another question that’s been asked a lot today is, “So Jeff, does this mean that the IRS is now saying there is no more once-per-year rollover rule and that they’re suspending it because of COVID-19?” No, that is not what this is saying. What this is saying is that the RMDs that were taken earlier this year (and I really shouldn’t say the RMDs because they’re really not RMDs anymore; they were waived by the CARES Act), but any amount that was taken earlier this year, or even now, that would have been a Required Minimum Distribution but for the passing of the CARES Act, any rollovers of those amounts, and those amounts specifically, are not going to be subject to the once-per-year rollover rule.
So if you have a client that is going to be completing these rollovers, what should you do now? Well, first off, you want to get this information out to clients as quickly as possible. Many of us expected a more broad IRS relief than we saw earlier this year with respect to Required Minimum Distributions, notably a later deadline. But I don’t think anybody thought that we would get relief for beneficiaries and on the once-per-year rollover rule without Congressional action. So getting this message out to your clients, particularly the beneficiaries, who you probably told, “I’m sorry. You’re up the proverbial creek without a paddle,” because that’s what the rule was, up until today or earlier this afternoon. So you want to get this message out to those beneficiaries, to the other clients.
In addition to just simply getting the message out, I would make sure that you retain some sort of documentation over what their Required Minimum Distribution was calculated to be this year. This way, if the IRS ever asks and says, “Hey, this is actually a violation of the once-per-year rollover rule, etc.” You can say, “No, actually under Notice 2020-51, you said we could put these amounts back, and here’s the total that we were able to put back. And that’s what we did.” So I would keep documentation of that.
And, finally, once the money goes back to the custodian, I would just make sure that in the memo line, you write “Rollover Contribution”. Make it clear that it’s a rollover contribution. A lot of people have also asked me this, “Jeff, what do we do if the custodian doesn’t want to take the dollars back?” Well, if it’s a plan, the plan doesn’t have to accept roll-ins. But if that’s the case, then just roll it to an IRA and if you took it out of an IRA in the first place, roll it back to the IRA. The IRA custodian is not the rollover police. They’re not there saying, “No, you…” Just tell them and say, “Rollover contribution.” And they should accept it, really, with no questions asked. At the end of the day, it’s up to you, and your client, and your client’s tax preparer to report that amount as a rollover on their return.
Again, that’s the big news. The big takeaway here is that any RMD that was eliminated by the CARES Act earlier this year, including for beneficiaries, can now be returned to an IRA or other retirement account, without any worry about the 60-day rollover rule (as long as it’s done by August 31st), without concern about the once-per-year rollover rule, and without concern about being from a beneficiary. So, mega-news from the IRS today; important to get that to your clients.
Again, thanks for taking a few moments to join me tonight and talk about this relief. I wish you and your family, your loved ones, a wonderful, a healthy remainder of 2020. Take care, everyone.
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