Life and Death Planning for Retirement Benefits

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134 Life and Death Planning for Retirement Benefits
direct rollover of the nonstock assets to another plan and outright distribution of the stock
to the employee.
If the LSD includes other assets besides the NUA stock it is usually desirable to roll over
the nonstock assets, because there is no special tax advantage to not rolling them over. The only
exception would be, if the LSD also qualifies for special averaging treatment , the
employee should evaluate whether special-averaging gives him a low enough tax rate on the LSD
to make it worthwhile not to roll over any part of the distribution, then pay tax on the taxable
portion using the special averaging method.
B. Rolling over part of the NUA stock. If the employee rolls over some but not all of the
employer stock, the NUA and plan’s “cost basis” must be allocated, somehow, between
the rolled and the nonrolled stock.
Grace Example: Grace, age 52, receives an LSD of $1 million, consisting entirely of employer
stock, of which $300,000 is the plan’s cost basis and $700,000 is NUA. She rolls over 30 percent
of the stock to an IRA within 60 days. How are the NUA and plan-basis allocated as between the
rolled and nonrolled stock? Grace would like to allocate all of the $700,000 of NUA to the stock
that is not rolled over, and allocate all of the $300,000 of plan-basis to the stock that is rolled over
to the IRA. The advantages of that allocation are: She pays no current income tax and no 10 percent
“premature distributions” penalty, because the “taxable income” part of the distribution ($300,000)
was entirely rolled over; she pays no current income tax on the $700,000 NUA portion (because
it’s NUA); and when she eventually sells the NUA stock the first $700,000 of sales proceeds will
be long-term capital gain.
Grace’s preferred method of allocation would be correct according to which
provides that, in the case of a distribution which is partially rolled over to an IRA, the rolled portion
“shall be treated as consisting first of the portion of such distribution that is includible in gross
income ...”. See C). This interpretation was endorsed by the IRS in the well-reasoned PLR
8538062, which is the only IRS pronouncement discussing this subject. This approach is consistent
with other regulations on similar subjects. See Reg. , A-5(b), dealing with a partial
rollover of a nonqualified distribution from a designated Roth account (taxable portion is deemed
rolled over first); and Reg. A-8 (if a partially taxable distribution is received in the
same year as a distribution is required under the nontaxable portion is allocated first
to the RMD, which cannot be rolled over, and the taxable portion is therefore treated as an eligible
rollover distribution to the maximum extent possible). See also PLR 9840041, in which an
employee took a distribution of his entire balance from an employer plan, rolled over the taxable
portion of the distribution, and did not roll over the nontaxable amounts.
Another approach would be to allocate NUA and ordinary income proportionately to the
rolled and nonrolled stock; this approach appears possibly to have been used in PLR 2000-38050.
Later PLRs dealing with partial rollovers of NUA stock do not discuss how basis and NUA are
allocated between the rolled and nonrolled shares; see, e.g., PLRs 2002-43052, 2002-15032.
A third approach would be to allocate to each share of stock (whether rolled over or not)
its actual cost basis from the plan’s records; see (“Expert Tips”).
2.6 Rollovers and Plan-to-Plan Transfers