Feds Rethink Rules on Retirement Savings
By Tom Herman, The Wall Street Journal
November 19, 2008
Amid growing concern over the stock market's severe drop, government officials are considering last-minute relief from rules requiring millions of Americans who are 70½ or older to withdraw money from their retirement accounts.
Among the possible changes: allowing taxpayers to delay taking required withdrawals from their individual retirement accounts, 401(k) plans and other similar accounts this year -- or at least reducing the amount that must be withdrawn. Also under consideration are various ways to provide tax relief for people who already have made their required withdrawals for this year.
Some lawmakers and advocacy groups are urging Congress to pass legislation soon that includes temporary changes in the minimum-distribution rules. Meanwhile, Treasury Department officials are studying whether they can make certain changes on their own by tweaking the regulations.
While it's by no means certain that Congress or the Treasury will act this year, the message for investors is clear: If you haven't already taken your required minimum distribution this year, consider waiting a while longer, says Clint Stretch, managing principal for tax policy at Deloitte & Touche LLP in Washington.
At issue are complex requirements that force millions of people age 70½ or older to withdraw minimum amounts of money from retirement-savings accounts each year. The amount of the distribution is based on the market value of the taxpayer's account as of the last day of the previous year.
Therein lies one of the major problems. This year's distributions are based on Dec. 31, 2007, levels -- a time when market prices generally were far above today's deeply depressed values. As a result, "millions of Americans are forced to withdraw larger-than-anticipated amounts from already-depleted retirement funds," says David Certner, legislative policy director at AARP, an advocacy group that represents nearly 40 million older Americans.
One of the big questions is how much authority the Treasury has to take action on its own. During the presidential campaign, then-Sen. Barack Obama said the Treasury has the authority to "temporarily suspend" required withdrawals this year, and he urged Treasury officials to do so speedily. The Obama campaign said the explicit requirement that withdrawals must continue on an annual basis -- and the requirement that withdrawals must be based on the much-higher 2007 year-end asset values -- is based on Treasury regulations, not the law itself, and thus could be changed administratively.
In addition, because lower-income seniors "may have no choice but to take withdrawals" this year and next year, the Obama campaign endorsed the idea of exempting from tax any withdrawals made up to the required minimum amount. This would "give seniors the flexibility they deserve -- to forgo withdrawals if they choose or take those withdrawals tax-free if they need those resources to pay their bills," a campaign statement said.
In late October, Treasury spokesman Andrew DeSouza declined to comment on "any proposals made by either presidential campaign." This week, he said: "We're certainly aware of the issue and we're looking into it." He declined to elaborate. A Treasury official recently wrote lawmakers to say "we share your concern that because of the required minimum distribution rules in the Internal Revenue Code and the Treasury regulations, many Americans are required to withdraw a higher percentage of their savings than expected."
That letter noted that many investors' account balances are "significantly lower" now than they were on last Dec. 31.
Among the private-sector groups calling for major changes is AARP. Recently, Bill Novelli, AARP's chief executive, sent a letter to Treasury Secretary Hank Paulson urging him to take immediate action to temporarily freeze mandatory retirement-account withdrawals. This week, Mr. Novelli sent a letter to House and Senate leaders urging them to pass a new economic-stimulus package that would include retirement-savings changes.
AARP also called for relief for retirees who have already taken their minimum distributions this year, as well as those who don't have the choice of delaying withdrawals and need to yank money from their accounts to pay bills. "We believe that fairness dictates that we provide relief for individuals who have no other recourse than to use their greatly diminished retirement savings to meet current living expenses," Mr. Novelli said.
"Retirement-savings losses over the past 12 months have been staggering," he said. "Older individuals have disproportionately experienced these losses, and many do not have the luxury to wait for a market rebound."
So what's likely to happen?
"I think they [Treasury officials] have the authority to lessen the amount of the required minimum distribution, but I'd find it hard to think they have the authority to eliminate it completely," says Bill Sweetnam, an attorney at the Groom Law Group in Washington and formerly the benefits tax counsel at the Treasury Department.
"Although it is still possible that Congress could act this week" to provide relief from the minimum-distribution rules, "that hope seems to be fading," says Deloitte's Mr. Stretch. But if Congress doesn't act, "Treasury seems ready to make regulatory changes that would help out taxpayers."
For example, Mr. Stretch says the Treasury could "delay the date" by which minimum distributions must be made in order to "provide the new Congress with time to act." In addition, the Treasury could change how the distributions must be calculated. "Treasury could allow the use of the lower of the value at the end of the prior year or at the end of the current year," he says.
Congress has several options that it could consider right away or next year, Mr. Stretch says. Whatever the case, "the mood on the Hill is very sympathetic, but it may take time for the politics to work themselves out. In the meantime, taxpayers may wish to wait for a couple more weeks to see what relief Treasury can provide by regulation."