26 C.F.R. § 1.408-1

General rules

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(a) In general. Section 408 prescribes rules relating to individual retirement accounts and individual retirement annuities. In addition to the rules set forth in §§ 1.408-2 and 1.408-3, relating respectively to individual retirement accounts and individual retirement annuities, the rules set forth in this section shall also apply.

(b) Exemption from tax. The individual retirement account or individual retirement annuity is exempt from all taxes under subtitle A of the Code other than the taxes imposed under section 511, relating to tax on unrelated business income of charitable, etc., organizations.

(c) Sanctions—(1) Excess contributions. If an individual retirement account or individual retirement annuity accepts and retains excess contributions, the individual on whose behalf the account is established or who is the owner of the annuity will be subject to the excise tax imposed by section 4973.

(2) Prohibited transactions by owner or beneficiary of individual retirement account—(i) Under section 408(e)(2), if, during any taxable year of the individual for whose benefit any individual retirement account is established, that individual or the individual's beneficiary engages in any transaction prohibited by section 4975 with respect to such account, such account ceases to be an individual retirement account as of the first day of such taxable year. In any case in which any individual retirement account ceases to be an individual retirement account by reason of the preceding sentence as of the first day of any taxable year, section 408(d)(1) applies as if there were a distribution on such first day in an amount equal to the fair market value (on such first day) of all assets in the account (on such first day). The preceding sentence applies even though part of the fair market value of the individual retirement account as of the first day of the taxable year is attributable to excess contributions which may be returned tax-free under section 408(d)(4) or 408(d)(5).

(ii) If the trust with which the individual engages in any transaction described in subdivision (i) of this subparagraph is established by an employer or employee association under section 408(c), only the employee who engages in the prohibited transaction is subject to disqualification of his separate account.

(3) Prohibited transaction by person other than owner or beneficiary of account. If any person other than the individual on whose behalf an individual retirement account is established or the individual's beneficiary engages in any transaction prohibited by section 4975 with respect to such account, such person shall be subject to the taxes imposed by section 4975.

(4) Pledging account as security. Under section 408(e)(4), if, during any taxable year of the individual for whose benefit an individual retirement account is established, that individual uses the account or any portion thereof as security for a loan, the portion so used is treated as distributed to that individual.

(5) Borrowing on annuity contract. Under section 408(e)(3), if during any taxable year the owner of an individual retirement annuity borrows any money under or by use of such contract, the contract ceases to be an individual retirement annuity as of the first day of such taxable year. See § 1.408-3(c).

(6) Premature distributions. If a distribution (whether a deemed distribution or an actual distribution) is made from an individual retirement account, or individual retirement annuity, to the individual for whose benefit the account was established, or who is the owner of the annuity, before the individual attains age 59 1/2 (unless the individual has become disabled within the meaning of section 72(m)(7)), the tax under Chapter 1 of the Code for the taxable year in which such distribution is received is increased under section 408(f)(1) or (f)(2). The increase equals 10 percent of the amount of the distribution which is includible in gross income for the taxable year. Except in the case of the credits allowable under section 31, 39, or 42, no credit can be used to offset the increased tax described in this subparagraph. See, however, § 1.408-4(c)(3).

(d) Limitation on contributions and benefits. An individual retirement account or individual retirement annuity is subject to the limitation on contributions and benefits imposed by section 415 for years beginning after December 31, 1975.

(e) Community property laws. Section 408 shall be applied without regard to any community property laws.

[T.D. 7714, 45 FR 52790, Aug. 8, 1980]

Notes of Decisions

Cited in 7 cases, 1984–2011 · leading case: Boggs v. Comm'r, 83 T.C. 132 (Tax Ct. 1984).

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Boggs v. Comm'r, 83 T.C. 132 (Tax Ct. 1984). · cites it 2× “Finally, respondent's own regulations also take the position that the excise tax under section 4973 is the penalty to be imposed for an IRA's acceptance and retention of excess contributions. Sec. 1.408-1(c)(1), Income Tax Regs.”

In Re Thiem, 443 B.R. 832 (Bankr. D. Ariz. 2011). “See 26 C.F.R. § 1.408-1 (c)(3) (distinguishing "individual on whose behalf an individual retirement account is established” from that same "individual's beneficiary”).”

Aronson v. Comm'r, 98 T.C. 283 (Tax Ct. 1992). · cites it 2× “Statutes and regulations defining accounts eligible for IRA treatment do not appear to disqualify IRA's that have been transferred to State-appointed receivers or conservators following the failure of the trustee banks.”

In Re Solomon, 166 B.R. 832 (Bankr. D. Md. 1994). “26 C.F.R. § 1.408-1 (c)(6). Debtor is 61, and he is eligible to withdraw funds without penalty.”

In Re Bissell, 255 B.R. 402 (Bankr. E.D. Va. 2000). “26 C.F.R. § 1.408-1 (c)(6) (2000). See also In re Vogt, 245 B.”

Welander v. Comm'r, 92 T.C. 866 (Tax Ct. 1989). · cites it 2× “However, if the individual rolls over the distribution into another IRA within 60 days after he/she receives the distribution, then such amount is not includable in gross income.”

Tenny Shikaro Zahn v. Richard Fink (8th Cir. BAP 2008). “See 26 C.F.R. § 1.408-1 (b). In addition, the Bankruptcy Code explicitly instructs us to ignore the taxability of income when determining current monthly income.”

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