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Tax Law: IRA Rollover Final Regulations on Eligible Rollover Distributions

By Martin A. Spigner, Esq. and Kenneth Vercammen, Esq.

The Unemployment Compensation Amendments of 1992 (UCA) provided for significant changes to the treatment of distributions from qualified plan and Code section 403 (b) annuities. The new law requires an employer to withhold 20 percent of any lump-sum distribution unless the entire amount that would ordinarily be included in gross income is directly transferred to another qualified plan or an IRA (referred to as a "trustee to trustee" transfer).

In accordance with IRC section 401 (a) (31), a qualified plan must contain provisions which allow plan participants to elect to have an eligible rollover distribution directly transferred (i.e. trustee to trustee) to another qualified plan that accepts such distributions, or to an IRA.

This provisions applies to distributions made after December 31, 1992. In conjunction with this requirement, IRC section 402 (f) requires a written explanation before receiving distributions eligible for rollover treatment. This explanation and/or notification must be provided within a "reasonable time period," in order for the election to be valid. Revenue Procedure 93-12 outlines the qualification requirements of section 401 (a) (31), which were added to the Code by UCA 92.

Previously, the Service provided guidance under UCA 92 by issuing proposed and temporary regulations under Notices 92-48, 93-3 and 93-26. The notices solicited public comments concerning the guidance. After consideration of all the comments, the temporary and proposed regulations were replaced by final regulations, which were adopted and issued on September 15, 1995.

The following is a brief outline of some of the key areas that are addressed:

I. Final Regulations Under IRC Section 401 (a) (31)

A. Distributing Plan:

1. Any "eligible retirement plan," as defined in IRC section 402 (c) (8) (B). 2. May require a statement from recipient plan stating that the 3. rollover will be accepted and that the recipient plan is an "eligible retirement plan." 4. Direct rollover requirements with outstanding plan loans.

B. Receiving Plan:

1. Eligible retirement plan not required to receive direct rollover distributions. 2. Eligible retirement plan may limit circumstances under which it will accept direct rollovers.

II. Final Regulations Under IRC section 401 (c)

A. Assets not eligible for Rollover Distribution:

1. IRC section 401 (a) (9) minimum distributions. 2. Portion not includible in gross income. 3. Loans deemed as distributions under IRC section 72(p). 4. IRC section 401 (k) corrective distributions.

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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.


Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Halls Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005

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