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Tax FAQ: What penalties apply to "premature" distributions under annuity contracts?

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Q: What penalties apply to “premature” distributions under annuity contracts?

A: To discourage the use of annuity contracts as short term tax sheltered investments, a 10 percent tax is imposed on certain “premature” payments under annuity contracts.[1] The penalty tax applies to any payment received to the extent the payment is includable in income.

Exceptions to the penalty tax include:

(1) any payment made on or after the date on which the taxpayer becomes age 59½;

(2) any payment made on or after the death of the holder (or the primary annuitant in the case where the holder is a non-natural person);

(3) any payment attributable to the taxpayer’s becoming disabled;

(4) any payment made under an immediate annuity contract;[2]

(5) any payment that is part of a series of substantially equal periodic payments (SEPPs) made (not less frequently than annually) for the life or life expectancy of the taxpayer or the joint lives or joint life expectancies of the taxpayer and his or her designated beneficiary;

(6) any payment made from a qualified pension, profit sharing, or stock bonus plan, under a contract purchased by such a plan, under an IRC Section 403(b) tax sheltered annuity, from an individual retirement account or annuity, or from a contract provided life insurance company employees under certain retirement plans (but such payments are subject to similar premature distribution limitations and penalties; see Q 3583, IRA; Q 3727, pension, profit sharing, stock bonus; Q 3788, tax sheltered annuity);

(7) any payment allocable to investment in the contract before August 14, 1982, including earnings on a pre-August 14, 1982, investment;[3]

(8) any payment made from an annuity purchased by an employer upon the termination of a qualified plan and held by the employer until the employee’s separation from service; or

(9) any payment under a qualified funding asset (i.e., any annuity contract issued by a licensed insurance company that is purchased as a result of a liability to make periodic payments for damages, by suit or agreement, on account of personal physical injury or sickness).

Planning Point: SEPPs. From a practical standpoint, it would appear imprudent for an individual younger than age forty five to attempt to qualify for the exception for substantially equal periodic payments. A period longer than fifteen years may afford too much time in which a “material change” could occur. Also, the taxpayer might forget the importance of continuing to satisfy the conditions for this exception to the penalty tax. Fred Burkey, CLU, APA, The Union Central Life Insurance Company.

Where a deferred annuity contract was exchanged for an immediate annuity contract, the purchase date of the new contract for purposes of the 10 percent penalty tax was considered to be the date upon which the deferred annuity was purchased. Thus, payments from the replacement contract did not fall within the immediate annuity exception to the penalty tax.[4]

Apparently, if an annuity contract was issued between August 13, 1982, and January 19, 1985, a distribution of income allocable to any investment made ten or more years before the distribution is not subject to the penalty. For this purpose, amounts includable in income are allocated to the earliest investment in the contract to which amounts were not previously fully allocated.[5] To facilitate accounting, investments are considered made on January 1 of the year in which they are invested.[6]

There also is a 10 percent penalty tax on certain premature distributions from life insurance policies classified as modified endowment contracts (Q 8).

The tax on premature distributions is not taken into consideration for purposes of determining the nonrefundable personal credits, general business credit, or foreign tax credit.

Substantially equal periodic payments

Payments excepted from the 10 percent penalty by reason of the substantially equal periodic payment exception may be subject to recapture if the series of payments is modified, other than by reason of death or disability, prior to the taxpayer’s reaching age 59½ or, if later, before the end of a five year period beginning on the date of the first payment (even if the taxpayer has reached age 59½).

According to the report of the Conference Committee, the modification that triggers recapture is a change to a method of distribution that would not qualify for the exemption. The tax on the amount recaptured is imposed in the first taxable year of the modification and is equal to the tax as determined under regulations that would have been imposed, plus interest, retroactively back to the first such distribution made had the exception never applied.[7]

The IRS announced that the three methods used to avoid the 10 percent penalty when making substantially equal periodic payments from a qualified retirement plan (Q 3584) also may be used to qualify as substantially equal periodic payments from a nonqualified annuity. The “one time election” to change methods also may be used by owners of nonqualified annuities. Finally, there will be no penalty if an individual depletes an account by using one of the approved methods.[8]

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.IRC Sec. 72(q).


.An immediate annuity contract is one that is purchased with a single premium or annuity consideration, the annuity starting date of which is no later than one year from the date of purchase, and that provides for a series of substantially equal periodic payments to be made no less frequently than annually during the annuity period. IRC Sec. 72(u)(4); see Let. Ruls. 200818018 (variable annuity), 200036021.


.Rev. Rul. 85-159, 1985-2 CB 29. See also H.R. Conf. Rep. 97-760 (TEFRA ’82) reprinted in 1982-2 CB 685-686.


.Rev. Rul. 92-95, 1992-2 CB 43.


.Sec. 72(q)(1) prior to amendment by DEFRA 1984, Sec. 222(a).


.DEFRA 1984, Sec. 222(c).


.H.R. Conf. Rep. No. 99-841 (TRA ’86) reprinted in 1986-3 CB Vol. 4 403.


.Notice 2004-15, 2004-9 IRB 526.

The content in this publication is not intended or written to be used, and it cannot be used, for the purposes of avoiding U.S. tax penalties. It is offered with the understanding that the writer is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought.


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