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Lev, Tax Advisor
Category: Tax
Satisfied Customers: 29535
Experience:  Taxes, Immigration, Labor Relations
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Hi, this is a retirement tax question. I have a client who

Customer Question

Hi, this is a retirement tax question. I have a client who is going through a divorce who wants to divide a retirement account by use of a QDRO (qualified domestic relations order). He was told by one CPA that he would be responsible for a 10% pre-payment penalty, but then he was told by another CPA that he would NOT be responsible for this prepayment tax. What is the correct answer and also, as a second question, is there ever a situation in which one will not be responsible for the penalty tax for early withdrawal from a 401k or an IRA? THANKS!!!
Submitted: 7 years ago.
Category: Tax
Expert:  Lev replied 7 years ago.

Distributions received before age 59 1/2 are subject to an early distribution penalty of 10% additional tax unless an exception applies.

If the account owner is below 59 1/2 and is taking a distribution - he/she generally will be responsible for 10% early distribution penalty.


Please refer to the IRS publication 575 - page 31 : Additional exceptions for qualified retirement plans. The tax does not apply to distributions that are:

-- From a qualified retirement plan (other than an IRA) to an alternate payee under a qualified domestic relations order...


So if the transfer to the alternative payee is under QDRO - it is not a subject of penalty,

but if a new owner would take a distribution - he/she will be responsible for penalties.


see also page 19:

Alternate payee under qualified domestic relations order. If you receive a distribution as an alternate payee under a qualified domestic relations order, you may be able to choose the optional tax computations for it. You can make this choice for a distribution that would be treated as a lump-sum distribution had it been received by your spouse or former spouse (the plan participant). However, for this purpose, the balance to your credit does not include any amount payable to the plan participant.

If you choose an optional tax computation for a distribution received as an alternate payee, this choice will not affect any election for distributions from your own plan.


Customer: replied 7 years ago.
Hi Lev, one more question about this and then I will pay you. Will the beneficiaries of the alternate payee be responsible for early penlaty taxes in a QDRO situation? Also, what rules govern the taxation of early distributions from an IRA? Thanks!!!!!!
Expert:  Lev replied 7 years ago.

if the distribution would take place from the account established for the alternate payee - and the beneficiaries would request the distribution due to death of the owner - it is not a subject of penalty.

see page 31 - The tax does not apply to distributions that are:

-- Made on or after the death of the plan participant or contract holder.


To avoid possible litigations - be sure that the administrator reports on the 1099-R the distribution code "4"