What Business Activities are Associated with UBIT & UDFI

There are two ways an investment made by an IRA or 401(k) may owe tax with income resulting from an investment. As noted, investments that trigger UBIT are permissible, you just may owe taxes on a portion of the profits/income generated.

A Simple Explanation -- When a tax-exempt entity (think IRA or Solo-K) regularly generates income that is unrelated to the primary function of the tax-exempt entity. Think of a university whose core mission is education, but owns a number of fast-food restaurants. I think we would all agree that the university should not receive tax-free income from the operation of the restaurants....the university has tax-exempt status as an educational institution, not selling chicken sandwiches. The income from the sale of the chicken sandwiches would, most likely, be subject to the UBIT tax.

The IRS uses three distinct tests or considerations: 1) is the entity (in this case the IRA or 401(k)) conducting any trade or business; 2) is this trade or business is regularly carried on; and, 3) is this trade or business unrelated to the core operating mission of the tax-exempt entity (again, your IRA or 401(k))? In simple terms, IS the IRA/401(k) conducting or appearing to carry on the traits of an actively-run business through its investments? IS this activity regularly carried on? IS the investment activity unrelated to the IRA/401(k)s core purpose of making permissible, passive investments?

Two scenarios which may indicate whether a potential UBIT/UDFI tax may be applicable from your investment:

1. UBIT - Does the IRA/401(k) invest in a non-taxable entity that conducts a business or trade? Typically, this could be through an investment into a Limited Partnership (LP) or an LLC that, by definition, is a partnership. Unrelated business income (UBI) from that trade or business, that is regularly carried on by the exempt organization, would most likely trigger UBIT.

2. Unrelated Debt-Financed Income (UDFI) - UDFI is going to be applicable when the IRA or the tax-exempt entity it has invested in, owns the debt-financed property. Many understand its impact on an IRA where the IRA directly owns the property; however, it may also be applicable if the tax-exempt entity is not the IRA. But the tax-exempt entity owns the debt-financed property with, in part, your IRA funds. (If properly structured, UDFI does not apply to 401(k) debt-financed real estate investments…again, YEAH for the Solo-K plan).

It’s not all bad news: remember, IF UDFI is applicable, the IRA is only taxed on the debt-financed portion of the investment income. For example, if an investment was made with $50,000 IRA funds and $50,000 debt-financed income, the IRA would be paying the UDFI tax on the investment income generated from the debt-financed portion of the investment. Further, the IRA is permitted normal expenses and depreciation in determining the UDFI tax. Finally, there is no tax if the debt has been paid off at least 12 months prior to the sale of the property.

What Investment Income is NOT UBIT and UDFI?

Again, this will be why, in the vast majority of cases, your investments will not trigger UBIT/UDFI. The IRS notes the following list of exempt income from UBIT/UDFI calculations:

Income and gains from publicly-traded company stock, mutual funds, ETFs, etc.
Interest income from loans
Dividends
Annuities
Royalties
Rental income from real estate (generally speaking and in most cases)
Profits and gains from the sale of real estate (generally speaking and in most cases)

UBIT & UDFI -- A Historical Review

Quite honestly, once you understand the historical perspective, it is very easy to understand the basic concept of UBIT. If applicable, UBIT and UDFI rules are (or can be) very complicated, so you should always review the investment transaction with your tax or legal professional before you make the investment. As one might say, it is not as easy as saying, “UBIT is applicable” or “UBIT is not applicable.”

Prior to 1950, tax-exempt organizations (e.g., churches, charities, universities) had a unique tax advantage. There was no law that prohibited these tax-exempt organizations from conducting business activities unrelated to their core purpose, AND not paying income taxes on the profits generated from these business activities.

An Example

Think of this visual: you are a tax-exempt entity (e.g., charity) which owns a tire shop. You believe the entity should not have to pay an array of taxes (e.g., Federal income tax) simply because you are a charity. Do you think this would fly with the IRS? It doesn’t, nor should it. The charity should pay taxes as it is “running a business” outside the tax-exempt purpose of the entity. That, I believe, would make sense to most people. Besides not paying taxes that it should, it can also provide the tax-exempt entity (charity) an unfair competitive situation compared to other businesses…think about how you would feel if you owned a tire shop across the street and you paid all taxes, but the tax-exempt entity owning the tire shop across the street did not?!

Being aware of this tax loophole, the loop was closed and the new law prohibited this type of activity. Therefore, UBIT, as we know it today, was born. While UBIT was created to “even the playing field” of competition and paying one’s “fair share of taxes” (and make sure the IRS got their tax receipts), it was applicable to IRA and 401(k) plans later on as they are certainly tax-exempt, and their only core purpose is to passively invest the funds of the plan.

In a nutshell: tax-exempt organizations (including IRAs, 401(k)s, etc.) can operate business activities from within their plan, they just have to pay taxes on income realized.

UBIT and UDFI is not necessarily Evil

Again, while UBIT/UDFI will probably never apply to your investments (passive investments), this post is to address UBIT and UDFI and the implications for your IRA or 401(k) if you trigger these events. Both are important for you to know…and, if applicable, discuss with your tax or legal professional before you make an investment that may trigger a tax to your IRA or 401(k).

Also, keep in mind that neither UBIT or UDFI is inherently evil. It is simply a tax for “operating a business” (versus a passive investment), or by acquiring debt-financed property held in whole or in part by your IRA….with a 401(k), provided the investment is structured correctly, UDFI does not apply to a 401(k) debt-financed property transaction. YEAH for 401(k)s! Neither UBIT or UDFI, by definition, is an IRS/DOL Prohibited Transaction. Nor does UBIT or UDFI transactions disqualify your IRA or 401(k)…unless, of course, you triggered a PT in making an investment that just flat out is against IRS rules.

Possible Scenarios Which MAY Trigger UBIT/UDFI

While the IRS defines UBIT, they do not necessarily define common occurrences in which UBIT may be triggered. Part of the reason for this apparent lack of clarity is possibly due to the fact that there can be many factors involved in a particular transaction. Here are some scenarios that you may want to carefully review before you execute the investment as they could trigger UBIT:

Executing “Margin” Stock Purchases;
Excessive Loans – Generally speaking, loans are permitted for the IRA/401(k) to extend (as long as they are not violating Prohibited Transactions). However, could the IRS take the position that instead of making a passive investment return with these loans that you were actually carrying on a trade or business IF you made a large number of loans at one time? Could you be scrutinized if you did not make excessive loans, but your regular “job or business” was to make loans and you continued this practice through the use of your retirement plan funds?
Flipping? Good question. It is hard to believe that executing a single flip (provided you are not involved in any Prohibited Transactions, of course) out of a retirement plan would, by itself, be considered taxable under UBIT. However, it is fair to say that if the plan was executing a “significant” number (and, no, there is no definition for significant) of flips or that was your regular “job”, such transactions could be viewed as being applicable to UBIT?
“Buy and Hold Strategies” – A situation where your IRA or 401(k) held a residential or commercial property and sold off large portions for development in a relatively short period of time…could the IRS believe UBIT was applicable? In the eyes of the IRS, could this be viewed as a regularly-carried on business or a passive investment?

What the IRS Might Consider in Determination of UBIT?

The Breadth of the Investment – What are you doing with your investments? Are you doing the same investments over and over again? As an example, are you buying property with the same strategy (quick buy and sell)? Should you be considered a wholesaler of properties? Doing 1 vs. 12 in a year may be an indicator.
Personal Investment or Activities vs. Your IRA/401(k) – If you were making the same type of investments from your IRA/401(k) as you might make with personal funds or through the operation of your business (if applicable)? This could be an issue the IRS takes into account.
Your Intention – I was told a long time ago that you can’t judge someone’s heart. But, with the IRS, who knows?! Does the IRS believe you are actually trying to conduct business activities or make a passive investment from your retirement account. If your IRA/401(k) transactions look more like a business ledger of transactions, that could raise the eyebrows of the IRS.
Frequency and Holding of IRA/401(k) Assets — Again, difficult to define, but does it appear through the frequency of your transactions that you are making passive investments or conducting a business? Your actions could raise the question.

The Good News?

As noted, very few investors conduct investment activities that raise to the level of triggering UBIT or UDFI…but, it can happen. It is important that you consider each investment opportunity for many factors, including whether the investment, in any way, can trigger UBIT or UDFI. Again, even if it does not trigger one of these two events, that is not necessarily bad…it is just something you need to consider in determining whether the investment is in your best interests for what you want to accomplish.

Some Investment Activities that should be Clear of UBIT?

Investments made from the previous list of exempt income activities should, generally, not trigger UBIT.
Structuring the investment as a loan with a defined interest rate and terms. Your IRA/401(k) can receive interest income that is exempt from UBIT….why not structure investments that way?
Investments made in C-Corps. With the C-Corp paying taxes first, the return on the investment could be paid as a dividend after taxes have been paid.
Purchase of an Option. This can be a valid strategy in letting it lapse, selling or assigning, exercising or releasing the option back to its owner.
Co-investing with another party/entity that does not pose UBIT, UDFI or Prohibited Transaction issues. For example, instead of possibly exercising a non-recourse loan through your IRA and triggering UDFI, might it be good instead to invest with a co-investor where UBIT/UDFI is not triggered due to the property being purchased without debt?

As you can see, the concept of UBIT/UDFI is not necessarily difficult; however, it can get complicated very quickly. It is always a must to review any invest scenario that may trigger UBIT/UDFI with your tax or legal representative.