Social Security worries are increasing, Medicare myths are multiplying and creative ways to help our clients navigate through their retirement and end-of-life years can be difficult if not challenging for advisors and our clients' families.
In previous articles we have discussed the senior market, dominant buying motives, reasons seniors buy and what the right annuity can do for the right client.
In this series of articles we are going to look at some examples demonstrating the difference between annuitant-driven contracts and owner-driven annuity contracts. This series is not meant to address a particular carrier or a specific product but rather the idea of how the contract may need to be written and why.
An annuitant-driven contract terminates upon the death of the annuitant while an owner-driven contract terminates upon the death of the owner. (All examples in this series are for non-qualified annuities.)
All deferred annuities provide the holder with the option to purchase an income annuity for the life of the annuitant at permanently guaranteed purchase rates.
Note: Federal income tax law requires that the remaining interest under the non-qualified contract be paid out in a certain manner (except where the designated beneficiary is the owner's surviving spouse) upon the owner's death (IRC section 72(s) ).
If the owner and the annuitant are the same person, then contractual benefits should be paid whether the contract is an owner-driven or an annuitant-driven since the owner and the annuitant will have died.
Multiple contracts
Your male, 62-year old client purchased two non-qualified annuity contracts in 2004 from a life insurance company. His initial investment in each contract was $65,000 and each contract has an accumulated value of $120,000 (no surrender charges).
Are there any tax consequences of a $70,000 withdrawal from one of these contracts?
Non-qualified contracts issued by the same insurer (or by an affiliated insurer) to the same policyholder during the calendar year must be aggregated and will be treated as one contract for tax purposes. Therefore, the combined accumulated value of the two contracts is $240,000 and the basis is $130,000. Since the total gain in the combined contracts is $110,000, the entire $70,000 withdrawal will be taxable.
Pledges and loans
Your male, 54-year-old client owns a non-qualified annuity contract with an accumulated value of $225,000, a surrender value of $200,000, and a basis of $100,000. His local bank is lending money to him provided he pledges his annuity contract as collateral for the loan.
Are there any general income tax consequences of such a pledge?
A pledge of an annuity contract is considered a deemed distribution and the amount pledged will be treated as an amount not received as an annuity (IRC 72(e)(4)(A) ). The amount pledged will be treated as a withdrawal and your client will be taxed on the difference between the accumulated value and the investment in the contract ($225,000 – $100,000 = $125,000 of taxable ordinary income).
Taxation of withdrawals
You have a 60-year-old female client who purchased a non-qualified annuity contract in 2005 with an initial payment of $125,000. The contract now has an accumulated value of $195,000 and a surrender value of $191,000.
What are the tax consequences if your client takes a withdrawal of $95,000? What are the tax consequences if your client surrenders the annuity contract?
When determining the taxable portion of an annuity withdrawal, the investment from the contract is subtracted from the accumulated value to determine the amount of the gain. Distributions of gain are made first, and after all gain has been distributed the investment in the contract is distributed. In this example the difference between the accumulated value and the investment in the contract is $70,000. Consequently, a distribution of $95,000 will result in $70,000 of ordinary income and $25,000 represents a return of the investment in the contract.
When a contract is surrendered, the taxable amount is determined by subtracting the investment from the contract from the surrender value. Your client would realize $66,000 of ordinary income if she surrendered the contract.
Premature distributions
In 2003 when your client was 40 years old he purchased an annuitant-driven annuity contract and designated himself as the owner, his mother as the annuitant, and his younger brother as the beneficiary. The contract was purchased with a single payment of $50,000 and now has an accumulated value of $105,000 (no surrender charges) when his mother dies suddenly at the age of 60.
What, if any, are the tax consequences upon the death of your client's mother?
Taxable distributions from an annuity contract are subject to an additional 10 percent penalty tax unless the distribution meets one of the exceptions contained in IRC section 72(q)(2) dealing with non-qualified annuities. One such exception to the 10 percent penalty is for a distribution on account of the death of the owner (holder). The contract in this example is an annuitant-driven contract that terminated upon the death of the annuitant – not the owner. Therefore, the premature distribution exception does not appear to apply. The $55,000 gain would be currently subject to ordinary income tax (assuming that the amounts are distributed upon the death) and subject to the 10 percent penalty tax since the owner is under 59-and-a-half.
Premature distributions – Exceptions
- Age 59-and-a-half
- Death of Owner
- Disability
- Immediate Annuity
- Substantially Equal Periodic Payments
- Effective Date
The exception for disability is very limited since the definition under 72(m)(7) requires the individual to be unable to engage in any substantial gainful activity or any medically determinable physical or mental impairment that can be expected to result in death or to be of a long-continued and indefinite duration. Proof of disability must be furnished.
