Individual Retirement Accounts and Bankruptcy

By Ellen R. Marshall

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MAY 2006 - Two recent developments with regard to bankruptcy are substantially changing the landscape regarding the attractiveness of IRA rollovers for employees with large accounts in tax-qualified plans.

Until now, there has been inconsistency among jurisdictions as to whether an IRA would be included in a bankruptcy estate if a participant were to become bankrupt. Some participants in qualified plans, upon becoming entitled to receive a plan distribution by virtue of their separation from service or their age or other plan rules, chose to leave their accounts with a qualified plan trustee, even though they might have preferred an IRA rollover, simply because they thought that the qualified plan offered greater protection against claims of creditors. As a result, some qualified plans of small businesses have been kept alive after the sponsoring employer ceased to be in active business, and some qualified plans of larger businesses have been made to retain accounts of individuals long since gone.

Supreme Court Decision

On April 4, 2005, the Supreme Court took a major step to resolve the inconsistency among the courts. In Rousey v. Jacoway, the Court held that IRAs will be excluded from the bankruptcy estate to the extent reasonably necessary for support.

This issue was controversial because an IRA, although held in a separate trust for retirement, can legally be withdrawn before retirement, albeit with tax penalties. The bankruptcy law exempts payments that are made “on account of illness, disability, death, age or length of service.” Some lower courts thought that because an IRA could be withdrawn at any time, the payments from an IRA did not meet this exemption standard. Other lower courts took the view, now confirmed by the Supreme Court, that an IRA’s assets did sufficiently meet this standard. Under the bankruptcy law, as interpreted in this case, an IRA does not get automatic exclusion from the bankruptcy estate. Rather, it becomes subject, along with all other retirement savings of the bankrupt person, to the test of whether the funds are “reasonably necessary for the support of the debtor and any dependent.” This test is applied by the bankruptcy court, not the parties. It may seem axiomatic that, for a person who files a bankruptcy petition, the funds in an IRA will be necessary for support. In the case of an individual with a large rollover IRA, however, it is entirely possible that the amount in an IRA may exceed what is reasonably necessary. Moreover, if the person has several sources of retirement income (e.g., other IRAs or a company pension plan), the amount that is reasonably necessary from one particular IRA may be less than the whole account.

Thus, the Supreme Court clarified a uniform standard on the relationship of an IRA to a bankruptcy proceeding. But this clarification did not relieve the bankruptcy court from the obligation to make a factual determination, because the standard that was articulated was by its nature fact-specific for each individual.

Statutory Change

Concurrently, however, Congress passed the Bankruptcy Abuse Prevention, Consumer Protection Act of 2005. This new revision of the federal bankruptcy statute was signed into law by President Bush on April 20, 2005. When it became effective on October 17, 2005, it created an exemption for IRAs and other tax-exempt retirement programs without considerations of the needs of the participant.

If an IRA is contributory (whether regular or Roth), the exemption applies up to $1 million. If an IRA is a rollover from a plan that qualifies under the Employee Retirement Income Security Act (ERISA), the exemption applies without regard to the amount. If an IRA includes both contributory and rollover funds, the $1 million will apply to the contributory funds and earnings attributable to those funds, but not to the rollover funds and to earnings attributable to the rollover funds.

Some may find it ironic that the new law, which is designed chiefly to reduce the benefits of filing for bankruptcy, would in this respect enhance protection of assets in the bankruptcy process. Whether this was simply a convenient occasion for rationalizing the law, or was intended to enhance the benefits for the smaller class of people who remain eligible under the new statute, the new law is definitely more favorable to IRA participants who file for bankruptcy.

The practical effect of this statutory change is that doctors and other professionals who fear financial ruin from an uninsured malpractice claim can safely move their retirement funds from a qualified plan to an IRA without increasing the exposure of those funds to the claims of creditors.

Ellen R. Marshall is a partner at Manatt, Phelps & Phillips LLP, Costa Mesa, Cal. She specializes in business transactions, including capital markets, finance, mergers and acquisitions, and securitization. She can be reached at 714-371-2508 and




















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