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Taxes on 401k seized by federal government?

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I have a client that was convicted of a federal crime, not involving taxes. His 401k was seized for restitution...about $180k. They do NOT withhold ANY taxes. Between federal and CA state he should owe about $70k in taxes and penalties...he is not over 59 1/2. Apparently, his lawyer advised him that somehow he wouldn’t have to pay the penalties but didn’t elaborate. I can’t seem to find anything that would exempt him from the penalties. In my eyes, he repaid money he obtained illegally and so why would he be exempt from the penalties. 

Has anyone ever had a case like this and could there possibly be a way around the penalties?  

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3 Replies 3
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Level 11

Not enough facts here, but make sure the restitution is not deductible.  See

https://scarincihollenbeck.com/law-firm-insights/tax/taxes/business-tax/restitution-payments-are-tax...

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He was convicted of insurance fraud.  He had a car repair shop and was cashing insurance checks from fraudulent claims through his business account.  It was a federal conviction and he was ordered to pay restitution.  He was first audited by the IRS and had to pay additional taxes and penalties for understatement of income.  He paid.  Then he was arrested for Insurance fraud and convicted.  The charges were directly against him, not his business.  He did time in federal prison and was ordered to pay restitution.  The feds seized his 401k.  The did NOT have taxes withheld.  The entire $180k was paid back to the insurance companies.  

I am hoping that there is some way to deduct the amount of the seized 401k or to at least avoid the early withdrawal penalties.  

I'm also thinking that if he was charged taxes and penalties for understatement of income as a result of the audit of his 2016 tax returns then he should be able to either amend that return or deduct the payments from his 2019 return.  He was billed for understatement of income, but ultimately that income was paid back to the insurance companies.  

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Level 12

@Taxes Hispanos wrote:

His 401k was seized for restitution ... his lawyer advised him that somehow he wouldn’t have to pay the penalties but didn’t elaborate.


I wondering if the lawyer was thinking about when the IRS seizes/levies the fund?  If the IRS had done it, that would be exempt from the penalty.  But in this situation I can't think of any reason why the penalty would not apply.