What to watch for as the Senate panics over the SECURE Act

Become a Patron!

My readers know that the SECURE Act, passed unanimously out of its House committee and overwhelmingly on the floor of the House, was conjured into existence by the insurance industry in order to increase the distribution of expensive, opaque annuity products in 401(k) retirement plans. It incidentally also includes a few other provisions designed to reduce the taxes paid by the extremely wealthy, like the SECURE backdoor into 529 assets. Throughout 2019 the Act has been held up in the Senate by Ted Cruz, who wants to open the backdoor even further by allowing tax-free distributions from 529 accounts for “homeschooling” expenses.

The SECURE Act is back in the news since, with impeachment looming, the Senate’s legislative calendar is looking increasingly time-constrained, and the insurance industry’s senators are panicking to make sure their masters get what they paid for.

Since some version of the Act will likely be folded into end-of-year budget negotiations, here’s what to watch for as that process plays out.

What won’t change: annuities and RMD’s

The core of the SECURE Act, and its companion measure in the Senate, has always been to increase the distribution of annuities in employer-provided 401(k) plans by shielding employers from liability when those plans are unable to make their promised payments. The sop to individual savers to “balance out” that giveaway is an increase in the age, from 70 1/2 to 72, at which minimum distributions are required from pre-tax individual retirement accounts and 401(k)’s.

Those two giveaways are the reason the Act exists, and are unlikely to change substantially since they’ve already been frozen in carbonite by their respective lobbyists.

The 529 backdoor

The House version of the SECURE Act includes the SECURE backdoor into 529 assets, allowing account owners to double dip into their account balance, once by taking a tax-free distribution for higher education expenses covered by a student loan, and then a second tax-free distribution of up to $10,000 in order to repay that loan.

The Senate version did not contain that provision, so it remains to be seen whether the final measure will include the backdoor, and if so, whether the House’s $10,000 limit will be kept, raised, or lowered.

The “homeschooling” loophole

In the smash-and-grab tax act of 2017, a private schooling loophole was added to 529 plans, allowing for up to $10,000 in tax-free distributions for certain private primary and secondary education expenses. Ted Cruz wants to blow that loophole wide open by allowing for the same tax-free distributions for “homeschooling” expenses, and has blocked passage of the Act in the Senate until he gets his way.

Upon even a moment’s reflection, this is simply open-ended permission for the wealthy to shield their investments from capital gains taxation. After all, education takes place throughout the year. Who is to say that tennis lessons aren’t a form of homeschooled “physical education?” Who is to say that a laptop isn’t necessary for homeschooled “computer science?” Who’s to say that a month in France isn’t a “foreign language” field trip?

So far the Senate has had the good sense not to bend on this point, but in the flurry of year-end negotiations, Cruz may end up getting his way.

Changes to “stretch” IRA’s

For technical reasons, it’s much easier to pass legislation that does not have a budgetary cost than legislation which does, so in addition to its handouts to the very wealthy, the House version of the SECURE Act also included a measure to increase revenue: drastically shortening the period over which withdrawals from inherited IRA’s and 401(k) accounts must be taken.

Under current law, required distributions from an inherited IRA can be calculated based on the heir’s life expectancy, rather than the original account owner’s. This allows an heir to both reduce required distributions and strategically time distributions for low-tax years. Under the SECURE Act, all inherited IRA’s must be completely distributed within 10 years.

This is an extremely important change in the world of tax planning, but obviously not of much interest to the overwhelming majority of people: most people do not inherit anything; most people who do inherit something don’t inherit IRA’s; and most people who inherit IRA’s just withdraw the money immediately, they don’t strategically time withdrawals for the next 60, 70, or 80 years.

If the SECURE student loan backdoor limit is raised, or the “homeschooling” loophole is added, the budgetary cost of the Act will soar. That may mean the stretch IRA period will be shortened further: a 7-year window raises less money than a 10-year window, since it mechanically reduces the opportunities for strategic withdrawals.

It’s also possible the necessary revenue will be raised elsewhere in the final bill, or the procedural point of order will be simply be waived.

Conclusion

The SECURE Act is a bad law that should not be passed: the benefits go overwhelmingly to the wealthy in the form of tax savings, and the costs, particularly the ability of annuity marketers to target employers for inclusion in 401(k) plans, will be borne exclusively by the working and middle classes.

But since it likely will be passed in some form, eventually, now you know what to watch for.

Become a Patron!