Non-Qualified Annuity Tax Rules
Written by Hersh Stern Updated Sunday, February 4, 2018
Annuities have become increasingly popular. Tax deferred growth is arguably the most appealing feature of a non-qualified annuity. This permits earnings on premiums to avoid income taxation until distribution. Long-term savings advantages and the ability to insure an income stream for life add to annuities' increasing appeal. As a consequence of their rising popularity, the past few years have brought a significant increase in the number of available annuity products.
In this article we review some of the most common tax concerns that arise around non-qualified annuities. Armed with this information, current and future annuity owners can proactively navigate around them. Before we start, though, its important to advise that the information on this page should not be taken as tax advice. You should consult with a competent tax professional before buying an annuity or before making changes to any existing annuity which may potentially trigger a taxable event.
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Types of Annuities
Annuities are classified in a number of different ways. For federal tax purposes, annuities are classified as either qualified or non-qualified. A qualified annuity is purchased as part of, or in conjunction with, an employer provided retirement plan or an individual retirement arrangement (such as an Individual Retirement Annuity or a Simplified Employee Pension Plan). If certain requirements are satisfied, contributions made to qualified annuities may be wholly or partially deductible from the taxable income of the individual or employer making the contributions.
A non-qualified annuity is not part of an employer provided retirement program and may be purchased by any individual or entity. Contributions to non-qualified annuities are made with after-tax dollars and are not deductible from gross income for income tax purposes. For the purposes of this article, we will limit further discussion to non-qualified annuities.
Annuities are also classified by type of investment and type of payout. Under a fixed annuity, the owner has both the security of a set rate of return and no investment decisions related to the annuity funds. The title "fixed annuity" does not mean that the earnings rate credited will never change; rather, it means that the earnings rate is set periodically by the issuer and then "fixed" until the rate is changed again.
Parties To an Annuity Contract
The three parties to an annuity contract are the owner, the annuitant, and the beneficiary. In many instances, the owner and the annuitant will be the same.
The owner is usually the purchaser of the annuity and has all the rights under the contract, subject to the rights of any irrevocable beneficiary. The owner is subject to income tax on all payments made from the annuity, regardless of who is named as payee or annuitant if different than the owner). When applicable, the penalty on any premature distributions is based on the owner's age. If the owner dies while the contract is in the accumulation phase (discussed later), there usually is a mandatory distribution of the death benefit (except when a spousal continuation rider takes effect).
The owner names the annuitant and the beneficiary of the annuity contract. The annuitant must be a natural person and serves as the measuring life for purposes of determining the amount and duration of any annuity payments made under the contract. The beneficiary receives the death benefit or any remaining annuity payments upon the death of the owner.
Natural Owner of an Annuity
The owner of an annuity may be a natural or non-natural person. A natural person is a human being, for example. Some examples of non-natural persons are corporations, partnerships, and trusts.
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An annuity contract will be treated as owned by a natural person even if the owner is a trust or other entity as long as that entity holds the annuity as an agent for a natural person. However, this special exception will not apply in the case of an employer who is the nominal owner of an annuity contract under a non-qualified deferred compensation arrangement for its employees. Immediate annuities are also excepted from the non-natural owner rule.
Why is it important to know if the owner is a natural person? Generally, only annuity contracts owned by natural persons are treated as annuity contracts for federal income tax purposes and the earnings on such contracts are taxed deferred until withdrawn. On the other hand, annuity contracts owned by non-natural persons are not treated as annuity contracts for federal income tax purposes and the earnings on such contracts are taxed annually as ordinary income received or accrued by the owner during the taxable year. As with many other income taxation rules, there are several exceptions to the non-natural owner rule.
Non-Natural Owner of an Annuity
As stated earlier, contracts owned by "non-natural" persons are subject to annual tax on the inside buildup in the contract. Notable exceptions are contracts held in a trust or other entity as an agent for a natural person, immediate annuities, annuities acquired by an estate upon the death of the owner. Annuities are also not taxable if owned by a charitable organization or a pension plan.
Purchasing several individual annuity contracts from a single insurance company within the same calendar year is often referred to as aggregation. In this scenario, the IRS treats these purchases as a single transaction in order to prevent the owner of the policies from manipulating the basis in each contract. Aggregation can result in an unexpected tax liability for the annuity owner. This rule does not apply when contracts are purchased from different insurance companies or if one annuity is deferred and another is immediate.
All contracts issued by the same company to the same policyholder during any calendar year will be treated as one contract for purposes of computing taxable distributions.
The following are exceptions to the aggregation rules: deferred annuity contracts which are exchanged into immediate annuities; immediate annuities; distributions required on account of the death of the owner; contracts issued prior to 10/21/88. Note, if a pre-10/21/88 contract is subsequently exchanged or transferred, the new contract becomes subject to the aggregation rules.
Premature Distribution Penalty
10% of taxable amount.
1. The owner is over age 59½ 2. The owner is disabled after contract purchase3. The owner, not the non-owner annuitant, dies4. Pre-TEFRA (prior to 8/14/82 contributions) non-qualified money5. Immediate non-qualified annuity
Substantially equal payments
1. Must continue for 5 years or until owner reaches 59½, whichever is later 2. Must be computed based on life expectancy3. Annuitization (for the owner's life or life expectancy
Note: An exchange from a deferred to an immediate annuity does not qualify as an immediate annuity for the purposes of avoiding tax penalty.
Tax Consequences of Ownership Changes
- Addition/deletion of joint owner
- Transfer to another individual or entity
- Earnings are subject to income tax at time of transfer
- 10% penalty may apply
- Gift taxes may apply
- Transfers between spouses
- Transfers incident to divorce
- Transfers between an individual and his/her grantor trust
Mandatory Distribution upon Death of Owner
If Owner dies Prior to Annuitization:
Surviving owner (or beneficiary) must elect one of the following:
- immediate lump sum
- complete withdrawal(s) within 5 years of death
- annuitization (over the life of the new owner) to start within one year of death. If spouse is sole surviving owner (or beneficiary), spouse can also elect to continue contract. If owner is a grantor trust, death of grantor triggers mandatory distribution
Mandatory distribution applies to all contracts issued after 1/18/85
If Owner Dies After Annuitization:
Payments continue to beneficiary, based on annuitant's life and type of payment plan chosen
What are the phases of the annuity contract?
There are two distinct phases of the annuity contract: the accumulation phase and the annuitization phase. During the accumulation phase, the owner generally is not taxed on the earnings credited to the cash value of the annuity contract unless a distribution is received. The accumulation phase continues until the annuity contract is terminated or the annuitization phase begins. The annuitization phase starts when the contract value is applied to an annuity payout option. This phase continues until the last payment is made according to the annuity payout period chosen by the owner (or in some cases, the beneficiary).
How are the distributions taxed during the accumulation phase?
When an annuity contract is fully surrendered during the accumulation phase, the owner must pay income tax on the earnings in the contract. The owner is not taxed on amounts that represent a return of contributions (such as premiums or investment in the contract). Partial withdrawals from an annuity in the accumulation phase are taxed on a last in, first out (LIFO) basis. In order words, withdrawals from an annuity are made earnings first, and the owner is taxed on the payments until all of the earnings have been distributed. There is an exception to the earnings first rule for contributions made to annuity contracts prior to 8/14/82. These contributions are distributed on a first in, first out (FIFO) basis and the owner is not taxed until such contributions are fully recovered.
There is an aggregation rule which requires that all annuity contracts issued by the same company, to the same owner, in the same calendar year must be treated as one annuity contract for purposes of determining the taxable portion of any distributions.
How are distributions taxed during the annuitization phase?
Annuities are designed to function as retirement investment vehicles, placing withdrawals after the attained age of 59 1/2. Should the annuity owner begin withdrawals following this age and assuming that they have satisfied any relevant surrender schedule, they will not be assessed fees outside of their tax liabilities. However, should the annuity owner opt to receive withdrawals prior to reaching the age of 59 ½, they may be subject to a 10% IRS penalty on any gains posted to-date. One exception to this rule is if the annuity owner has established an agreement with the IRS, referred to as substantially equal periodic payments (SEPP). Under this agreement, equal withdrawal payments can begin prior to the annuity owner’s age of 59 ½ without penalty as long as they continue to the agreed upon future date, which at a minimum is the later of age 59 ½ or a 5 year period.
During annuitization, a portion of each annuity payment represents a return of non-taxable investment in the contract and the balance of each payment is considered taxable income. The taxable and non-taxable portions of the payments are determined by an exclusion ratio. The exclusion ratio for a fixed annuity is the ratio the investment in the contract bears to the expected return under the contract. The exclusion ratio for a variable annuity is determined by dividing the investment in the contract by the total number of expected payments. Once the total amount of the investment in the contract is recovered using the exclusion ratio, the annuity payments are fully taxable. If the owner dies before the total investment in the contract is recovered, and annuity payments cease as a result of his death, the un-recovered amount is allowed as a deduction to the owner in his last taxable year.
When does the 10% penalty tax apply?
The 10% penalty tax generally applies to the taxable amount of distributions from annuities made before the owner attains age 59½. However, there are exceptions for distributions: (1) made as a result of the owner's death or disability; (2) made in substantially equal periodic payments over the life or life expectancy of the owner, or joint lives or joint life expectancy of the owner and designated beneficiary; (3) made under an immediate annuity; or (4) attributable to investment in the annuity made prior to 8/14/82.
What are the tax consequences of a transfer of ownership?
If an individual transfers ownership of a non-qualified annuity issued after 4/22/87, without full and adequate consideration, the owner must pay income tax on the earnings in the contract at the time of the transfer (except for transfers to a spouse or transfers made to a former spouse incident to a divorce). If the contract was issued before that date, the earnings in the contract can continue to be deferred, with the old cost basis carried over to the new owner. Transfer of ownership includes the addition or deletion of a joint owner. Also, the transfer of ownership may result in gift tax consequences for the owner.
Listing Annuities as Collateral Assignments
If the annuity owner lists their contract as collateral, its value will be treated as if it has been surrendered, thereby triggering applicable taxable gains.
Individuals who assign their annuities as collateral for loans may be surprised by the treatment of assignments. Generally, any collaterally assigned, pledged, or received as a loan under an annuity issued after 8/13/82 is treated as if it was distributed from the annuity. The amount collaterally assigned is taxed according to the rules applicable to partial withdrawals and full surrenders and may also be subject to the 10% penalty tax. If the entire contract is assigned or pledged, then earnings subsequently credited to the contract are automatically deemed subject to the assignment or pledge and are treated as additional partial withdrawals.
What happens at the owners' death?
If the owner dies after the annuitization phase has begun, the remaining payments, if any, must be paid out at least as rapidly as under the annuity payout option in effect at the time of the owner's death. If a beneficiary receives the remaining payments under the annuity payout option in effect at the owner's death, the taxable and nontaxable portions of such payments will continue to be determined by the original exclusion ratio.
Pre-TEFRA Contracts (Prior to 8/14/82):
- Principal out first - Not taxable
- Earnings outlast - fully taxable, but no penalty tax
Post TEFRA Contracts (After 8/13/82)
- Earnings out first - Fully taxable and may be subject to penalty tax
- Principal out last - Not taxable
If a pre-TEFRA contract is subsequently exchanged, it keeps pre-TEFRA tax treatment. Sub-accounts are combined to compute income in the contract.
If the owner dies during the accumulation phase, the entire death benefit must be distributed within five years of the date of the owner's death. However, there is an exception to the five-year rule, if the death benefit is paid as an annuity over the life, or a period not longer than the life expectancy, of the beneficiary and the payments start within one year of the owner's date of death. If an annuity contract has joint owners, the distribution at death rules are applied upon the first death.
Under a special exception to the distribution at death rules, if the beneficiary is the surviving spouse of the owner, the annuity contract may be continued with the surviving spouse as the owner. If the owner of the annuity is a non-natural owner, then the annuitant's death triggers the distribution at death rules. In addition, the distribution at death rules are also triggered by a change in the annuitant on an annuity contract owned by a non-natural person. Income Tax. Unlike death benefits paid from life insurance policies, the beneficiary may be taxed on distributions made from an annuity after the owner's death. Amounts paid under the five-year rule are taxed in the same manner as partial withdrawals or full surrenders, and amounts paid under an annuity option are taxed in the same manner as annuity payments. For variable annuity contracts issued on or after 10/29/79, and for all fixed annuity contracts, there is no "step-up" in basis for income tax purposes and the beneficiary pays income tax on the earnings. However, the beneficiary is entitled to deduct a portion of estate tax paid on the annuity for income tax purposes. For variable annuity contracts issued prior to 10/21/79, there is a "step-up" in basis for income tax purposes and no income tax is payable on the earnings.
Deducting Capital Losses
If the annuity owner receives a lump sum distribution at a value below their cost basis, they may be able to claim the loss on their federal tax return if they itemize. Surrender charges assessed to the annuity owner following a withdrawal or surrender will not qualify as a loss under this ruling.
Classification of the Annuity’s Owner as a Trust
When the owner of a nonqualified annuity is a non-natural person, such as a trust, it is taxed on an annual basis and is ineligible for tax deferral benefits. One exception does exist; should the trust act in an agent capacity.
Trusts Listed as an Annuity’s Beneficiary
Most annuities offer three primary distribution options to listed beneficiaries; lump sum payment, even payments over a five year period or income payments over the life of the named beneficiary(ies). Should the beneficiary of the annuity be the spouse of the original owner, an additional option may be presented; for the surviving spouse to step in as the new owner of the annuity. If a trust is listed as the annuity’s beneficiary, no-look through provisions are offered. Essentially what this means is that the trust is ineligible to receive lifetime income payments. One exception to this general rule does apply; should the trust act as an agent of the spouse’s named beneficiary.
Gifting an Annuity
When an annuity is gifted to another party, the transaction triggers a taxable event for the donor. Any relevant capital gains will be taxed at the current owner’s tax bracket. And, should the gift occur prior to the annuity owner’s age of 59 ½, the transaction will be subject to a 10% IRS early withdrawal penalty. Two exceptions may apply; should the transfer occur between spouses or former spouse (as in the event of a divorce settlement), or if the annuity was issued prior to April 23, 1987. Annuities issued prior to this date will be taxed following donation when the contract is surrendered rather than at the time of transfer.
Some previously purchased contracts may be eligible to receive favorable tax treatment. Withdrawals from annuities purchased prior to August 14, 1982 are subject to the first in, first out treatment. A step up in basis will be provided to beneficiaries of annuities purchased before October 21, 1979 upon the original contract owner’s death. If these original contracts are exchanged, these grandfathered benefits will be forfeited.
Required Minimum Distributions
IRAs with annuity holdings are subject to the IRS rule known as required minimum distributions (RMDs), which triggers when an individual reaches the age of 70 ½. RMD withdrawals, however, are NOT required to be taken from a non-qualified annuity. Simply stated, the concept of RMDs does not apply with non-qualified annuities.
For federal estate tax purposes, the total value of the contract is subject to estate tax. Except as noted above, annuities are income in respect of a decedent and there is no "step-up" in basis for the contract and the annuity is subject to income tax when distributed.
The marketplace for these annuities has evolved to handle a wider range of cases—workers’ compensation claims, employment claims, non-bodily injury property and casualty claims, and other negotiated settlements. SSA arrangements have been used in commercial business transactions as well.
The previous drawback of using SSA arrangements for non-qualified cases was the inability to avoid adverse tax treatment for the assignments. Life insurers have overcome this problem by creating assignment companies in Barbados. Article 18 of the U.S.-Barbados Income Tax Treaty provides for favorable taxation of annuity benefits, overcoming the limitation of section 72(u) dealing with annuities owned by a non-natural person. This adverse tax treatment is not applicable to SSA arrangements that qualify under Section 104 and Section 130.
Attorneys have not widely used SSA arrangements for a variety of reasons. First, the annuity contracts offer very conservative returns, and in the current low-interest-rate environment, these returns have been miniscule. Second, a plaintiff’s firm has tremendous up-front expenses to litigate a case. Third, most SSA brokers do not have the proper licensing with the Financial Industry Regulatory Authority to offer a variable annuity solution to provide investment upside for the deferred contingency fee.
The annuity contracts in the SSA marketplace include both deferred and immediate annuities. However, the annuity contracts used have been fixed annuity contracts where the policy’s crediting rate has been tied to the investment performance of the insurer’s general assets.
The use of a private placement variable deferred annuity (PPVA) as an SSA is something completely new to the SSA marketplace. What is arguably the best solution in terms of costs and investment flexibility is not being offered by SSA brokers.
Tax support for the deferral of attorney’s fees. In Childs v. Commissioner, 103 T.C. 634 (1994), aff’d, 89 F.3d 856 (Table) (11th Cir. 1996), the Tax Court ruled in favor of an attorney fee deferral arrangement. This decision was the first and only case supporting the right of an attorney to defer contingency fee income. The court ruled that the attorney did not have constructive receipt of his fees because the attorney did not have any right to a fee until the settlement agreement was signed. Before signing the agreement, the attorney agreed to receive his fee over time. The attorney also did not have any economic benefit. The life insurer’s guarantee did not meet the definition of property under Section 83. The Service acknowledged the holding in a discussion of construction receipt in FSA 200151003.
Section 409A, which was added to the Code in 2004, deals with the requirements for deferred compensation arrangements. The Service issued a notice entitled “Guidance Under § 409A of the Internal Revenue Code” on December 20, 2004. The notice’s question-and-answer section provides that the limitations of Section 409A do not extend to this type of fee deferral arrangement.
In January 2005 the Supreme Court issued a decision in the consolidated cases of Commissioner v. Banks and Commissioner v. Banaitis, 543 U.S. 426 (2005). The Court ruled that attorneys do not have a property interest in the settlement recovery. This is a critical element enabling an attorney to defer fees.
Tax requirements for deferring contingency fee income. An attorney must avoid the application of the constructive receipt and economic benefit doctrines. An attorney should adhere to the following guidelines in structuring a deferred fee arrangement.
Settlement agreement. The settlement agreement must certify that a contingency fee arrangement between the plaintiff and attorney is in place and that deferred payments are directed to the attorney for the benefit and convenience of the plaintiff to meet the plaintiff’s attorney’s fee obligation. The amount and timing of the payments should be specified in the agreement. This agreement must be made in writing before the fees are earned. The election must be irrevocable. The lawyer’s fee agreement with the client should allow the lawyer to receive all or a portion of contingency fees in the form of periodic payments.
The agreement should contain the attorney’s acknowledgement that the SSA payments “cannot be accelerated, deferred, increased or decreased by the attorney; nor shall the attorney have the ability to sell, mortgage, encumber or anticipate the periodic payments or any part thereof, by assignment or otherwise.”
Assignment. The settlement agreement must require the defendant to assign the settlement obligation to an assignment company. The assignment terminates the defendant’s obligation to make periodic payments. The life insurer issuing the annuity typically owns the assignment company. The agreement should contain a provision that the assignment company maintains all ownership rights and control of the annuity.
Annuity purchase. Under the terms of the assignment agreement, the assignment company purchases an annuity contract from an affiliated life insurance company to fund its obligation. Funds can be held in a qualified settlement fund (QSF) until the annuity is purchased.
PPVA contracts. PPVA contracts are institutionally priced variable deferred annuity contracts for accredited investors and qualified purchasers as defined under federal securities law. Unlike retail variable annuity contracts, these contracts are unbundled and transparent. The contracts have no surrender penalties and are essentially “no load/low load” contracts. The policy assets are not subject to the claims of the life insurer’s creditors. These contracts provide for the ability to customize the investment options of the contract to include alternative investments such as hedge funds, private equity, and commodities.
The investment performance of the PPVA contract is a direct pass-through to the policyholder, the assignment company. The increased account value within the annuity may increase the attorney’s future periodic payments.
The attorney may recommend an investment advisor to the insurance company that may enter into an investment management agreement with the insurer to manage the assets of the annuity contract. The lawyer cannot control the investment decision-making authority of the investment advisor.
Summary. The combination of private placement deferred annuity contracts and structured products provide an exciting solution for plaintiff’s attorneys who wish to defer their legal fees. The deferral in virtually every case crosses the breakeven threshold immediately. The deferral of contingency fees is a powerful alternative to any of the qualified plan benefits available to the lawyer through the law firm’s sponsored benefits.
Law firms may use these arrangements to provide for retention of key employees and attorneys. A law firm may manage the occasional financial insecurity of the law firm’s cash flow by anticipating overhead expenses and structuring payments to meet these obligations.
The use of PPVA contracts with structured investment products provides an opportunity to revolutionize the use of deferred fee arrangements for plaintiff’s attorneys.
ABA SECTION OF TAXATION
This article is an abridged and edited version of one that originally appeared on page 11 of Section of Taxation NewsQuarterly, Summer 2012 (31:4).
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