11th Circuit rules that IRA that lost Federal exemption due to self-dealing also lost Florida exemption under 222.21(2)(a)(2) for failing to maintain in accordance with its own governing instruments

While normally exemptions in IRA's are not contested, when a debtor controls the investments of the IRA, and engages in self-dealings, the exemption can be lost. In Yerian v Weber, 2019 U.S.App. LEXIS 19114, Case #18-10944 (11th Cir., 26 June 2019) Mr. Yerian titled cars purchased with IRA funds in his and his wife's names, and purchased a Puerto Rico condo with IRA funds which he used for his personal travel needs; thereby incurring over $100,000 in tax penalties for abusing his IRA. The IRA had been opened in 2012, but the funds were treated just as another bank account, engaging in 'prohibited transactions' under the tax code; resulting in a loss of tax exempt status as of 1 January 2014. On 27 February 2015 Mr. Yerian filed for relief under chapter 7 of the Bankruptcy Code. While 11 U.S.C. §541(a)(1) provides that a debtor's assets become assets of the bankruptcy estate, 11 U.S.C. §522(b) permits debtors to exempt certain assets from the estate to retain themselves. Florida has opted not to use the list of exemptions provided in the Bankruptcy Code but to set its own list of property exempt in bankruptcy. The bankruptcy trustee, Mr. Webber, objected to Yerian's exemption, and after a two-day trial the bankruptcy court ruled that the Florida law does not permit a debtor to claim an exemption for an IRS operated in violation of the federal tax code. On appeal the district court affirmed, and the matter was brought before the 11th Circuit Court of Appeals. The Florida statute at issue is §222.21(2)(a)(2) permits exemption of money in a fund or account that is Maintained in accordance with a plan or governing instrument that has been determined by the Internal Revenue Service to be exempt from taxation under s. 401(a), s. 403(a), s. 403(b), s. 408, s. 408A, s. 409, s. 414, s. 457(b), or s. 501(a) of the Internal Revenue Code of 1986, as amended, unless it has been subsequently determined that the plan or governing instrument is not exempt from taxation in a proceeding that has become final and nonappealable; Fla. Stat. §222.21(2)(a)(2). The Court next looked to the tax code: 26 U.S.C. §408 setting forth both six minimum requirements for the terms of the 'written governing instrument' that legally establishes the IRA, and how an IRA must be operated in order to keep its tax exempt status. Engaging in prohibited transactions, such as self dealing, can result in loss of such tax-exempt status. 26 U.S.C. §408(e)(2). Yerian argued that if the IRS was properly created, the Florida statute does not provide for loss of exemption for subsequent conduct absent an order that became final prior to the filing of the bankruptcy. The Court disagreed, finding that three requirements must be met under this section to exempt an IRA. 1) the IRA's plan or governing instrument was initially determined to be exempt from taxation under §408; 2) the IRA has been maintained in accordance with that plan or governing instrument, and 3) no final and nonappealable proceeding has subsequently determined that the plan or governing instrument is no longer exempt from taxation under §408. As the trustee has not challenged the 1st requirement, the court assumed that was met. Likewise, the 3rd requirement was met as of the petition date. The analysis focused on the 2nd provision: that the IRA has been maintained in accordance with that plan or governing instrument by which it was created. The Court emphasized the distinction that the section does not necessary require the IRA to be maintained in accordance with 26 U.S.C. §408, noting that the requirements under such section of the tax code could well change over time. Rather, the requirement is that the IRA be maintained in a manner consistent with the governing documents creating it, whether such documents impose stricter or less stringent requirements than §408. Two documents were identified as the governing instruments of the IRA. One of them, an IRA LLC Agreement is the document that permitted Yerian to make his own IRA investments through an LLC. This document included the provision: "I acknowledge that I have not and will not engage in any prohibited transactions within my retirement account or its asset holdings." The agreement sent on to describe such prohibited transactions including use of IRA assets by a fiduciary or transfer of plan income or assets for their own benefit. The Court also rejected the Trustee's argument that an IRA could not be exempted under Florida statutes if it was not maintained in accordance with 26 U.S.C. 408(e)(2). States may set their own exemption statutes, and such determination will not be second guessed by the courts. As Yerian failed to maintain the IRA in accordance with its governing instruments, the exemption under §222.21(2)(a)(2) was lost.Michael BarnettMichael Barnett, PA506 N Armenia Ave.Tampa, FL 33609-1703813 870-3100https://hillsboroughbankruptcy.com

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