Financial institution error supports rollover deadline waiver

Plain-English summary

A taxpayer directed a financial institution to roll funds from a qualified plan and an IRA into a traditional IRA, but the institution deposited both amounts into the wrong IRA. The taxpayer documented the institution's administrative error and represented that the funds had not been used for another purpose. The IRS waived the 60-day rollover deadlines under sections 402 and 408. It gave the taxpayer 60 days from the ruling date to contribute each amount to a rollover IRA or another qualified plan, subject to all other rollover requirements and the exclusion of required minimum distributions.

Ruling snapshot

• Question: May the taxpayer receive waivers of the 60-day rollover deadlines after a financial institution deposited the funds into the wrong IRA?
• Outcome: Approved, with a new 60-day contribution period
• Key authorities: IRC §§ 401(a)(9), 402(c)(3), 408(d)(3); Rev. Proc. 2003-16

Full text (IRS public release)

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. 20224

TAX EXEMPT AND
GOVERNMENT ENTITIES
DIVISION

JAN 20 2016

Uniform Issue List: 408.03-00

SE:T:EP:RA:T2

* * *
* * *
* * *

Legend:

Taxpayer A = * * *

Plan B = * * *
         * * *

IRA C = * * *
        * * *

Amount D = * * *

Amount E = * * *

Financial Institution F = * * *

Financial Advisor G = * * *
                      * * *

IRA X = * * *
        * * *
        * * *
        * * *
        * * *

Dear * * *:

This is in response to your request, dated December 23, 2014, as supplemented
by correspondence dated December 14, 2015, in which your authorized representative,

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on your behalf, requested a waiver of the 60-day requirements contained in section
402(c)(3) and section 408(d)(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 on August 17, 2010, a direct rollover, of Amount D,
from Plan B, was deposited into IRA X. On October 29, 2010, a direct rollover of
Amount E, from IRA C, was deposited into IRA X. Taxpayer A asserts that her intent
was to roll over Amounts D and E into a traditional IRA and that her failure to
accomplish the rollover into the correct IRA within the 60-day period prescribed by
section 402(c)(3) and section 408(d)(3) of the Code was due to an administrative error
made by Financial Institution F. Taxpayer A further asserts that Amount D and Amount
E have not been used for any other purpose.

Taxpayer A requested that Financial Institution F transfer assets from Plan B and
IRA C into a Traditional IRA to be established in her name. Taxpayer has provided a
letter from Financial Advisor G verifying Financial Institution F’s mistake.

Based on the facts and representations, you request a ruling that the Internal
Revenue Service (the “Service”) waive the 60-day rollover requirement contained in
section 402(c)(3) of the Code and section 408(d)(3) of the Code with respect to the
distribution of Amount D from Plan B and Amount E from IRA C.

Section 402(c)(1) 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)(4) of the Code provides that an eligible rollover distribution shall
not include any distribution to the extent such distribution is required under section
401(a)(9).

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. Only distributions that occurred after December 31, 2001, are eligible for
the waiver under section 402(c)(3)(B) of the Code.

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Section 401(a)(31) provides the rules for governing “direct transfers of eligible
rollover distributions”.

Section 1.401(a)(31)-1 of the Income Tax Regulations, Question and Answer-15,
provides, in relevant part, that an eligible rollover distribution that is paid to an eligible
retirement plan in a direct rollover is a distribution and rollover, and not a transfer of
assets and liabilities.

Section 408(d)(1) of the Code provides that, except as otherwise provided in
section 408(d), any amount paid or distributed out of an IRA shall be included in gross
income by the payee or distributee, as the case may be, in the manner provided under
section 72.

Section 408(d)(3) of the Code defines, and provides the rules applicable to IRA
rollovers.

Section 408(d)(3)(A) of the Code provides that section 408(d)(1) does not apply
to any amount paid or distributed out of an IRA to the individual for whose benefit the
IRA is maintained if:

(i) the entire amount received (including money and any other property) is paid
into an IRA for the benefit of such individual not later than the 60th day after the day on
which the individual receives the payment or distribution; or

(ii) the entire amount received (including money and any other property) is paid
into an eligible retirement plan (other than an IRA) for the benefit of such individual not
later than the 60th day after the date on which the payment or distribution is received,
except that the maximum amount which may be paid into such plan may not exceed the
portion of the amount received which is includible in gross income (determined without
regard to section 408(d)(3)).

Section 408(d)(3)(B) of the Code provides that section 408(d)(3) does not apply
to any amount described in section 408(d)(3)(A)(i) received by an individual from an IRA
if at any time during the 1-year period ending on the day of such receipt such individual
received any other amount described in section 408(d)(3)(A)(i) from an IRA which was
not includible in gross income because of the application of section 408(d)(3).

Section 408(d)(3)(D) of the Code provides a similar 60-day rollover period for
partial rollovers.

Section 408(d)(3)(E) of the Code provides that the rollover provisions of 408(d)
do not apply to any amount required to be distributed under section 401(a)(9).

Section 408(d)(3)(I) of the Code provides that the Secretary may waive the 60-
day requirement under sections 408(d)(3)(A) and 408(d)(3)(D) where the failure to
waive such requirement would be against equity or good conscience, including casualty,

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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)(B) or section 408(d)(3)(I), 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
example, in the case of payment by check, whether the check was cashed); and (4) the
time elapsed since the distribution occurred.

The information and documentation provided by Taxpayer A is consistent with
her assertion that the failure to accomplish a rollover of Amount D and Amount E into a
Traditional IRA in Taxpayer A’s name within the 60-day period prescribed by section
402(c)(3)(A) and section 408(d)(3)(A) of the Code was due to an administrative error
made by Financial Institution F.

Therefore, pursuant to section 402(c)(3)(B) of the Code, the Service hereby
waives the 60-day rollover requirement with respect to the distribution of Amount D from
Plan B. Taxpayer is granted a period of 60 days from the issuance of this ruling letter to
contribute Amount D into a rollover IRA or another qualified plan. Provided all other
requirements of section 402(c)(3) of the Code, except the 60-day requirement, are met
with respect to such contribution, the amount transferred (up to Amount D) will be
considered a rollover contribution within the meaning of section 402(c)(3) of the Code.

Pursuant to section 408(d)(3)(I) of the Code, the Service hereby waives the 60-
day rollover requirement with respect to the distribution of Amount E from IRA C.
Taxpayer A is granted a period of 60 days from the issuance of this ruling letter to
contribute Amount E, into a Rollover IRA or another qualified plan. Provided all other
requirements of section 408(d)(3), except the 60-day requirement, are met with respect
to such contribution, the amount transferred (up to Amount E) will be considered a
rollover contribution within the meaning of section 408(d)(3).

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

No opinion is expressed as to the tax treatment of the transaction described
herein under the provisions of any other section of either the Code or regulations which
may be applicable thereto.

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.

Pursuant to a power of attorney on file with this office, a copy of this ruling is
being sent to your authorized representative.

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If you wish to inquire about this ruling, please contact * * * (I.D. no. * * *) at * * *.
Please address all correspondence to SE:T:EP:RA:T2.

Sincerely yours,

Sherri M. Edelman, Manager,
Employee Plans Technical Group 2

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

cc: * * *
    * * *
    * * *
    * * *