60-day rollover deadline waived after reliance on spouse

Plain-English summary

A retiree received a lump-sum distribution from an employer's employee stock ownership plan. She deposited the check in a joint credit union account, then moved the portion intended for an IRA into another joint account that was not an IRA. She relied on her spouse and mistakenly believed the rollover could be completed by the end of the tax year rather than within 60 days. The intended rollover amount remained in the non-IRA account after the deadline passed. Based on those facts and documentation, the IRS waived the 60-day requirement for that portion. The amount would qualify as a rollover contribution if all other Section 402(c)(3) requirements were met.

Ruling snapshot

• Question: Could the taxpayer receive a waiver after reliance on her spouse and a mistaken deadline caused a late IRA rollover?
• Outcome: Approved for the amount retained in the non-IRA account, subject to all other rollover requirements.
• Key authorities: IRC § 402(c)(3)(A) and (B); 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

Number: 201822033
Date: March 5, 2018

Uniform Issue List: 402.00-00

Legend

Taxpayer A = [redacted]

Plan B = [redacted]

Account C = [redacted]

Financial Institution D = [redacted]

Amount 1 = [redacted]

Amount 2 = [redacted]

Dear [redacted]:

This is in response to your request dated December 19, 2017, as supplemented
by correspondence dated February 12, 2018, and February 17, 2018, in which you
request, through your authorized representative, a waiver of the 60-day rollover
requirement contained in section 402(c)(3)(A) of the Internal Revenue Code (the
“Code”).

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

Taxpayer A represents that she received a total distribution from Plan B in the
form of a check equal to Amount 1. Taxpayer A asserts that the failure to
accomplish a rollover of Amount 2, a portion of total distribution Amount 1, within
the 60-day period described in section 402(c)(3) of the Code was due to her
reliance on her spouse and misinformed belief that she had until the end of the
taxable year in which to complete the rollover.

Taxpayer A participated in Plan B, an ESOP that was maintained by her employer
and qualified under section 401(a) of the Code. Taxpayer A and her spouse jointly
owned Account C, a non-IRA account maintained by Financial Institution D.

On January 14, 2017, Taxpayer A retired and requested a lump sum distribution
from Plan B. On February 10, 2017, Taxpayer A deposited Amount 1 into a credit
union account that she jointly owned with her spouse. Intending to roll over
Amount 2 into an IRA that would be established with Financial Institution D,
Taxpayer A and her spouse transferred Amount 2 to Account C on February 27,
2017, while leaving the remaining portion of Amount 1 in their credit union
account. In late August or early September of 2017 Taxpayer A’s spouse
contacted their income tax preparer regarding rolling over Amount 2 into an IRA.
At that time, Taxpayer A and her spouse learned that they had missed the rollover
period which was 60 days.

Taxpayer A represents and the documentation shows that Amount 2 has been
retained in Account C since the date of deposit into Account C on February 27,
2017.

Based on the above facts and representations, Taxpayer A requests a waiver of
the 60-day rollover requirement under section 402(c)(3) of the Code with respect
to the distribution of Amount 2 from Plan B.

With respect to your ruling requests, section 401(a) of the Code provides the
qualification rules applicable to retirement plans set up by employers exclusively to
benefit their employees and their beneficiaries.

Section 402(a)(1) of the Code provides that except as otherwise provided in this
section, any amount actually distributed to any distributee by any employees' trust
described in section 401(a) which is exempt from tax under section 501(a) shall be
taxable to the distributee, in the taxable year of the distributee in which distributed,
in the manner provided under section 72 (relating to annuities).

Section 402(c) of the Code provides rules governing rollovers of amounts from
exempt trusts to eligible retirement plans, including IRAs.

Section 402(c)(1) of the Code provides, generally, that if any portion of an eligible
rollover distribution from a qualified employees trust is paid to the employee in an
eligible rollover distribution and the employee 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, such distribution (to the extent so transferred) shall not be
includible in gross income for the taxable year in which paid.

Section 402(c)(2) of the Code provides that the maximum amount of an eligible
rollover distribution to which paragraph (1) applies shall not exceed the portion of
such distribution which is includible in gross income (determined without regard to
paragraph (1)). The preceding sentence does not apply to the distribution to the
extent that such portion is transferred to an eligible retirement plan described in
section 402(c)(8)(B)(i) and (ii).

Section 402(c)(3)(A) of the Code provides, generally, that section 402(c)(1) shall
not apply to any transfer of a distribution made after the 60th day following the day
on which the distributee received the property distributed.

Section 402(c)(3)(B) of the Code provides that the Secretary may waive the 60-day requirement under subparagraph (A) 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 occur after December 31, 2001, are
eligible for the waiver under section 402(c)(3)(B).

Section 402(c)(4) of the Code defines "eligible rollover distribution" as any
distribution to an employee of all or a portion of the balance to the credit of an
employee in a qualified trust, except that such term shall not include:

(A) any distribution which is one of a series of substantially equal periodic
payments (not less frequently than annually) made --

(i) for the life (or life expectancy) of the employee or the joint lives (or joint
life expectancies) of the employee and the employee's designated beneficiary, or

(ii) for a specified period of 10 years or more,

(B) any distribution to the extent the distribution is required under section
401(a)(9), and

(C) any distribution which is made upon hardship of the employee.

Section 402(c)(6)(A) of the Code provides that the transfer of an amount equal to
any portion of the proceeds from the sale of property received in the distribution
shall be treated as the transfer of property received in the distribution.

Section 402(c)(6)(B) of the Code provides that the excess of the fair market value
of property on sale over its fair market value on distribution shall be treated as
property received in the distribution.

Section 402(c)(6)(D) of the Code provides that no gain or loss shall be recognized
on any sale described in subparagraph (A) to the extent that an amount equal to
the proceeds is transferred pursuant to paragraph (1).

Section 402(c)(8)(B) of the Code defines eligible retirement plan as (i) an
individual retirement account described in section 408(a); (ii) an individual
retirement annuity described in section 408(b) (other than endowment contract);
(iii) a qualified trust; (iv) an annuity plan described in section 403(a); (v) an eligible
deferred compensation plan described in section 457(b) maintained by an eligible
employer as described in section 457(e)(1)(A); and (vi) an annuity contract
described in section 403(b).

Revenue Procedure 2003-16, 2003-4 I.R.B. 359, provides that in determining
whether to grant a waiver of the 60-day rollover requirement pursuant to section
402(c)(3)(B) 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 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 submitted by Taxpayer A support her
assertion that the failure to accomplish a rollover of Amount 2, a portion of total
distribution Amount 1, within the 60-day period described in section 402(c)(3) of
the Code was due to her reliance on her spouse and her misinformed belief that
she had until the end of the taxable year in which to complete the rollover.

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

2. Provided all other requirements of section 402(c)(3), except the 60-day
   requirement, will be met with respect to the contribution of Amount 2 to an IRA,
   Amount 2 will be considered a rollover contribution within the meaning of section
   402(c)(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 letter ruling is
being sent to your authorized representative.

If you wish to inquire about this ruling, please contact
[redacted]. Please address all correspondence to SE:T:EP:RA:T1.

Sincerely yours,

Carlton A. Watkins, Manager
Employee Plans Technical Group 1

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

Cc: