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The Real Deal Miami

A foreclosure escape hatch?

Even if new bill makes it through Congress, "hardship" withdrawal route should be last resort
By Kenneth R. Harney | October 14, 2011 01:56PM

With hundreds of thousands of homeowners facing imminent foreclosure and estimates of 2 million
or more in the wings, are there any financial tools available to distressed borrowers that haven’t been
tried yet? Equally important politically: Is there a way to help owners that won’t rack up huge federal
expenditures and add to the deficit?

The Obama administration has been exploring options — including a new refinancing program expected
later this month — but a concept has surfaced on Capitol Hill that might offer modest help with no
revenue cost to the government: Amend the tax code to allow homeowners who have 401(k) retirement
plans to pull out money to save their houses from foreclosure without the usual tax penalties.

The change would work like this: Under current rules, anyone making what’s known as a “hardship”
early withdrawal of funds from their 401(k) must pay the IRS a 10 percent penalty on top of ordinary
income taxes. A new bill introduced Oct. 5 would waive the penalty if the purpose of the distribution is
to make loan payments to avoid loss of a primary home to foreclosure.

Co-authored by Sen. Johnny Isakson and Rep. Tom Graves, both Republicans from Georgia, the bill
would allow owners to pull out up to $50,000. The money could be used in a lump sum to pay down the
delinquent mortgage balance or to fill shortfalls caused by reductions of household income. It could also
be used as part of loan modification agreements with lenders designed to avert a foreclosure. However
the money is used to resolve the mortgage delinquency, it would need to be spent within 120 days of
receipt and could not exceed 50 percent of the current amount of funds in the retirement account.

Owners would still be subject to income taxes on the amounts withdrawn, but would escape the
penalty. Though neither of the co-sponsors claims the bill would actually raise revenues — they simply
say it won’t cost the government anything — some pension program experts say it might. Edward
Ferrigno, vice president for Washington affairs at the Plan Sponsor Council of America, a group that
represents employers who offer workers 401(k) accounts, said that by triggering taxable distributions
from otherwise untouched, tax-deferred plans, the bill “should generate revenues.” Ferrigno declined to
comment on the bill overall, pending further review of its provisions.

Titled the HOME Act, the proposal sheds light on the potential foreclosure-avoidance resources —
and the drawbacks — connected with tapping employee pension accounts. Many, but not all, 401(k)
plans allow for loans to participants, including for housing-related purposes. Retirement advisers
generally recommend taking a loan from a plan because the money withdrawn is not taxed or penalized.
Borrowers are required to pay interest on the loan, but in effect they are paying it to themselves to
offset the earnings forgone on the balances taken out.

Many 401(k) plans also provide for “hardship” withdrawals. However, these come with much stricter
rules, fewer eligible uses, plus the tax penalties. The Internal Revenue Code limits hardship distributions
to situations where there is an immediate and urgent financial need, and there are no other funds
available to meet this need. On top of that, the rules require that taxpayers must opt first for a loan
from the retirement plan — if permitted — before pursuing a hardship withdrawal.

Though avoiding foreclosure is one of the permitted hardship uses under the code, the 10 percent
penalty discourages potential users, Isakson and Graves argue. Their bill would remove that disincentive
and provide an emergency escape hatch for owners sliding fast toward foreclosure.

Putting aside the potential positives, are there downsides to making a hardship withdrawal from your
401(k), even penalty-free? You bet. Pulling out 401(k) dollars early — with or without a tax penalty — is
still an expensive way to raise money. Not only does it deplete the tax-deferred savings you’ve set aside,
but in the case of hardship withdrawals, you are prohibited by IRS rules from making new contributions
to your plan for six months.

Even if the HOME bill makes it through Congress — and there’s no assurance it will — taking the hardship
route should never be your first choice. It should be your last resort, when there’s nothing else that will
save your house and you don’t want to walk away.

However, also consider the pension plan alternative that may already be buried away in your plan
documents: A save-the-house loan to yourself. If the numbers work, and you have a reasonable chance
of avoiding foreclosure and repaying the loan, check it out.

It just might be your solution.

Kenneth Harney is a syndicated real estate columnist.