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Should You Lend Money to Family Members?

November 19, 2012 in News

Provided by ElderLawAnswers. 

Lending money to family often is not a good idea, say many financial experts, but with interest rates at some of their lowest levels in years, families may find it difficult to resist. Family loans also can be a way to pass on part of the family estate. So if you decide to lend money to a family member, proceed with caution, say certified financial planning professionals. Even with the potential advantages to your child or other relative and yourself, you should treat intra-family loans very carefully. Loans gone sour can create much bad blood in families and could end up in the courts. Before you hand over the check, ask a couple of questions. First, is the family member receiving the loan a good credit risk, or does he or she have a history of not fulfilling promises? Lending money for a mortgage might earn you better money than a Treasury security, but the loan isn’t guaranteed. Second, is the purpose of a loan a sound one? Lending money for a mortgage or perhaps college might be a good idea, while lending money to bail a person out of debt or to start a business is probably riskier. In the case of a business, for example, have the relative seek other sources of lending such as a bank or a venture capital firm. If institutions are unwilling to lend or invest, perhaps there’s a sound business reason they won’t. If they are willing to lend the money, often it’s best to let them. Let’¢s say you lend money to your son to buy a home or start a business. The IRS may require you to charge a minimal interest rate, known as the applicable federal rate (AFR), for the loan. If you charge below the rate, or make an interest-free loan, the IRS may impute the difference as interest earned and consider it taxable income. In some cases, the IRS could characterize the entire loan as a gift, subject to gift tax. The imputed interest rules don’t apply under certain circumstances: for loans of less than $10,000 as long as the loan is not used to buy income-producing assets, and for loans up to $100,000 as long as the borrower’s net investment income doesn’t exceed $1,000 for the year. In loans where the imputed interest rules apply, interest rates are set monthly by the IRS and depend on the length of the loan. For example, if you lend money to your son with the plan that he will repay the loan within three years, the minimum annual interest rate you would have to charge according to the April 2007 rates is 4.90 percent. For loan periods of three to nine years, the annual interest rate is 4.61 percent, and for nine years or longer, the rate is 4.81 percent. For the current AFRs, click on Such low-interest loans can be a good deal for the family member. A 4.81 percent annual rate on a loan for a child buying a home would certainly be better than the rate offered by commercial lenders. And the rate could benefit you as well when compared to other investment options. Which AFR to use, or whether a de minimis exception may apply, depends on the specifics of the loan’s terms, the borrower’s net investment income, how the loaned funds will be used, etc. This is set out in Internal Revenue Code section 7872. You should talk to an attorney or certified public accountant (CPA) about which AFR(s) should be used. Treasury regulations may also be applicable. You may choose to forgive some of the interest payments should you not need the cash or your child or relative is facing a tough financial situation. You probably won’t be liable for any gift tax if you can use the $12,000 annual gift-tax exemption. The catch is to be sure that you don’t agree in advance to forgive the loan or end up forgiving all of the interest payments. Otherwise, the IRS will likely treat the entire loan as a gift subject to gift tax. Draw up formal documents, preferably, with the help of an attorney. Put in writing the terms, interest rate, payment schedule and so on, and keep track of all payments. This not only helps all parties treat it as a real loan, it can prove invaluable should the IRS question the loan. Say your child fails to repay you. You may be able to convince the IRS that this is truly a bad loan for which you can claim a bad-debt loss — versus a slick way to transfer some of your estate to your child free of tax — if you can show past payments, efforts to collect, sale of collateral or, heaven forbid, lawsuits filed for payment. Formal documents can help the borrower as well. A promissory note secured by a mortgage, for example, would allow the borrower to deduct the interest payments (though this may involve additional legal and tax issues and additional expenses such as title insurance). Be sure to consult your tax advisor. And don’t just assume that if they don’t pay it back, you’ll simply chalk it off and consider it a gift or an advance against their inheritance. There can be tax consequences and other heirs may resent the loan forgiveness. [Editor’s note: There is help for private lenders. CircleLending provides a full range of services for managing financial transactions between private parties. It handles every aspect of the lending process, from structuring the loan repayment schedule to drawing up formal promissory notes to collecting payments each month. For more on CircleLending, click here.] This article was written by the Financial Planning Association (FPA), the membership organization for the financial planning community, and is provided by Maureen McFarland, CFP, Med, of The Financial Team, Inc., a fee-based financial planning firm in Carlsbad, California, and a local member in good standing of the FPA. Ms. McFarland is an Investment Advisor Representative of QA3 Financial LLC, an SEC Registered Investment Advisor, and a Registered Principal of, and securities offered through, QA3 Financial Corp. member NASD/SIPC


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