Financial institution error justified rollover waiver

Plain-English summary

A retirement-plan participant intended to roll an entire distribution into an IRA. He mailed the financial institution both the net distribution check and a personal check replacing the 20 percent withheld for federal taxes. The institution deposited the withholding amount on time but failed to deposit the larger endorsed check, instead sending it back to the plan, which returned it to the participant after the 60-day period. The participant later exchanged that check and contributed the funds to an IRA. The IRS found that the missed deadline resulted from the institution’s error and treated the transfer as a rollover, provided the other statutory requirements were met.

Ruling snapshot

• Question: Could the participant receive a rollover waiver when the financial institution failed to deposit his endorsed plan-distribution check?
• Outcome: Approved for the mishandled portion of the distribution
• Key authorities: IRC § 402(c)(3)(B); Rev. Proc. 2003-16

Full text (IRS public release)

201531024
DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE
WASHINGTON, D.C. 20224

TAX EXEMPT AND
GOVERNMENT ENTITIES
DIVISION

MAY 05 2015

SE:T:EP:RA:T2

Uniform Issue List: 402.00-00
Legend:
Taxpayer A: =
Plan B: =

IRA C =

Financial Institution D
Amount E =
Amount F =

Amount G =

Dear :

This is in response to your request dated June 10, 2014, as supplemented by
correspondence dated June 19, 2014, in which you request a waiver of the 60-day
rollover requirement contained in section 402(c)(3) of the Internal Revenue Code (the
“Code”).

The following facts and representations have been submitted under penalty of
perjury in support of the ruling requested.

Taxpayer A represents that he received a distribution of Amount E on September
13, 2013, from Plan B. Federal taxes of 20%, Amount G, were withheld from the
distribution and Taxpayer A received a check for Amount F. Taxpayer A asserts that his
failure to accomplish a rollover within the 60 day period prescribed by section 402(c)(3)

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was due to an error by Financial Institution D. Taxpayer A further represents that
Amount F has not been used for any other purpose.

Taxpayer A represents that it was his intention to contribute the full amount of the
distribution to a rollover IRA with Financial Institution D. In accordance with instructions
from Financial Institution D, Taxpayer A endorsed the check for Amount F, from Plan B,
to them. Taxpayer A also wrote a check from his personal account for Amount G, the
Federal tax withheld. Taxpayer A represents that both checks were then mailed to
Financial Institution D. Taxpayer A has provided documentation from Financial
Institution D showing the deposit of Amount G to his IRA account on October 30, 2013,
within the 60 day rollover period.

Inexplicably, however, the endorsed check for Amount F, from Plan B, was not
deposited into the IRA. Instead a check from Financial Institution D, dated November 5,
2013, for Amount F, was sent to Plan B. The check was payable to Plan B, FBO
Taxpayer A. With a transmittal, dated December 5, 2013, beyond the 60 day rollover
period, Plan B sent the check to Taxpayer A. Taxpayer A then had Financial Institution
D exchange the check for one with him as the payee which was contributed to IRA C.

Based on the facts and representations, you request a ruling that the Internal
Revenue Service (the “Service”) waive the 60 day rollover requirement with respect to
the distribution of Amount F contained in section 402(c)(3) of the Code.

Section 402(c) of the Code provides that if any portion of the balance to the credit
of an employee in a qualified trust is paid to the employee in an eligible rollover
distribution, and the distributee transfers any portion of the property received in such
distribution to an eligible retirement plan, and in the case of a distribution of property
other than money, the amount so transferred consists of the property distributed, then
such distribution (to the extent transferred) shall not be includible in gross income for
the taxable year in which paid. Section 402(c)(3)(A) states that such rollover must be
accomplished within 60 days following the day on which the distributee received the
property. An individual retirement account (“IRA”) constitutes one form of eligible
retirement plan.

Section 402(c)(3)(B) of the Code provides, in relevant part, that the Secretary
may waive the 60-day requirement under section 402(c) where the failure to waive such
requirement would be against equity or good conscience, including casualty, disaster, or
other events beyond the reasonable control of the individual subject to such
requirement.

Rev. Proc. 2003-16, 2003-4 I.R.B. 359, (January 27, 2003), provides that in
determining whether to grant a waiver of the 60-day rollover requirement pursuant to
section 402(c)(3) of the Code, the Service will consider all relevant facts and
circumstances, including: (1) errors committed by a financial institution; (2) inability to
complete a rollover due to death, disability, hospitalization, incarceration, restrictions
imposed by a foreign country or postal error, (3) the use of the amount distributed (for

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example, in the case of payment by check, whether the check was cashed); and (4) the
time elapsed since the distribution occurred.

The information presented and documentation submitted by Taxpayer A is
consistent with his assertion that his failure to accomplish a timely 60 day rollover was
the result of an error on the part of Financial Institution D in not timely depositing the
check from Plan B of Amount F to his IRA account.

Therefore, pursuant to section 402(c)(3)(B) of the Code, the Service waives the 60-
day rollover requirement with respect to the distribution to you of Amount F from Plan B.
Provided all other requirements of section 402(c) of the Code, except the 60-day
rollover requirement, are met with respect to such contribution, the transfer of Amount F
to IRA C will be considered a rollover contribution within the meaning of section
402(c)(1).

This ruling does not authorize the rollover of amounts that are required to be
distributed by section 401(a)(9) of the Code.

This letter is directed only to the taxpayer who requested it. Section 6110(k)(3) of
the Code provides that it may not be used or cited as precedent.

If you wish to inquire about this ruling, please contact *. Please address all
correspondence to SE:T:EP:RA:T2

Sincerely yours,

Sherri Edelman, Manager,
Employee Plans Technical Group 2

Enclosures:
Deleted copy of ruling letter
Notice of Intention to Disclose