Column: Want to buy a business? You can tap your 401(k)

CHICAGO Wed Apr 24, 2013 8:41am EDT

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CHICAGO (Reuters) - Mark Schottland's 401(k) took a beating in the market crash of 2008, and its value plunged 35 percent, to $65,000. But rather than go into a mattress fund, the Nashville resident decided to invest in himself.

Schottland used what was left of his nest egg at the end of that year to buy the Nashville franchise for Dogtopia, a dog daycare and boarding business that had 27 locations nationwide at the end of last year.

To do that, he took advantage of a little-known transaction called rollover-as-business-startup (with the confidence-inspiring acronym of ROBS). That allowed Schottland, then in his mid-30s, to sidestep the typical income taxes and 10 percent penalty that hit those under the age of 59-1/2 who withdraw money from tax-deferred retirement plans.

The ROBS loophole is complex: It allows would-be entrepreneurs to roll over their existing 401(k)or Individual Retirement Account to a plan set up within a new company, and then has that 401(k) purchase stock in it.

"I decided I'd rather invest my retirement money in my own abilities than in the stock market," Schottland said. "There's a lot of risk in investing in your own business, but at least you have control over your own destiny. In the stock market, you just don't."

Proponents say that ROBS offers a debt-free means of financing a startup or buying a business - especially at a time when business loans are hard to come by. They also note that the rolled-over funds still ultimately are used for retirement, and are taxed on withdrawal. When ROBS-financed enterprises are successful, profits can be used to buy stock back from the 401(k) gradually, reducing the plan's exposure to the business and diversifying the investment mix.

That's possible, of course, only if the business succeeds. Only half of new businesses survive to their fifth year, according to the U.S. Bureau of Labor Statistics; the 10-year survival rate is about one-third.

Should the tax benefits of an 401(k) or IRA be used for something as risky as a business startup? Advocates point to exemptions in the Employee Retirement Income Security Act of 1974 (ERISA) that permit many 401(k) plans to offer employer stock as an investment option to participants. The Internal Revenue Service has questioned ROBS in the past, but issued a ruling in February acknowledging that they can be done legally when the transactions fit within the ERISA exemptions.

Guidant Financial, a company that helps entrepreneurs execute ROBS and advised Schottland on the Dogtopia deal, says more than 80 percent of its clients are still in business after five years, most likely because because the ROBS-generated equity reduces the amount of debt required to launch their businesses.

David Nilssen, Guidant's chief executive, adds that most clients have significant business experience and are affluent enough to take a risk. Half have owned a business before, and most have senior-level managerial experience. "If you're buying a business, you need significant assets to make it happen," he says. "You also need experience and contacts."

Schottland fits that description. He began his career in financial services, working for 10 years as a money market manager and mutual fund wholesaler. "I got tired of traveling and sitting on an airplane, so I started looking for a mom and pop industry that needed consolidation."

He got the idea of going into the dog business when he saw how much it cost to board his own two Siberian Huskies.

The risk involved is in the eye of the beholder, argues Tom Kolb, an attorney who specializes in advising workplace plan sponsors and also advises clients executing ROBS transactions. "A ROBS business owner has the fiduciary responsibility for the plan, so he is permitted to take a risk if he wants to," says Tom Kolb, an attorney who specializes in advising workplace plan sponsors and also advises clients executing ROBS transactions.

Though he gets referrals from Guidant, Kolb doesn't encourage every client to jump into a ROBS arrangement. He says he thinks ROBS make sense only when other sources of capital - including bank loans - aren't available. He cautions that ROBS deals come with a number of risks and burdens, including tax code compliance, tax planning and the expense of operating a qualified retirement plan that must comply with tax and ERISA rules.

"There are a lot of traps for the unwary," he says. "All other things being equal, you wouldn't put such a large proportion of your wealth into one investment. But this approach has advantages for someone who couldn't otherwise start a business."

Schottland used several funding sources to launch his business. His franchise contract prohibits disclosure of the specific costs of launching a local Dogtopia, but he ballparks it between $250,000 and $400,000. The ROBS provided $65,000 of launch funds; $140,000 came from a Small Business Administration-backed loan, and the remainder came from his taxable accounts.

Business is good - Schottland says he's been operating at a profit since late 2009, and today is running at 80 percent occupancy. Now 39, he has been able to rebuild his 401(k) holdings to $16,000 (not including the company stock). So long as business doesn't go to the dogs, his ROBS should pay off handsomely.

(The writer is a Reuters columnist. The opinions expressed are his own.)

For more from Mark Miller, see link.reuters.com/qyk97s

(Follow us @ReutersMoney or here. Editing by Prudence Crowther)

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Comments (1)
manyregrets wrote:
As a person that took the same approach based on the recommendation of a franchisor, I wish I could go back and change my decision. I am now fighting to remain open, and I am likely not going to succeed. I have no money and no retirement left….I now must start over in order to have any security when I reach retirement age. Not what I planned for my future, and not why I worked so hard saving for retirement. Remember the franchisor has nothing to lose in this scenario! I completely made the wrong decision!

Apr 24, 2013 12:48pm EDT  --  Report as abuse
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