Can I use a 401(k) rollover (ROBS) for my SBA equity injection?
Short answer
Yes, if the plan complies with IRS, Treasury and Labor rules. The lender must flag the rollovers as business start-ups (ROBS) plan, and each plan sponsor gives a full unconditional guaranty regardless of ownership. Source: SOP 50 10 8.1, Sec. A, Ch. 2, Para. D.
Yes. SOP 50 10 8.1, Sec. A, Ch. 2, Para. D (p. 47), says a business owned wholly or partly by a 401(k) plan, including a Rollovers as Business Startups (ROBS) plan, may be eligible. The plan must comply with all applicable IRS, Treasury and Department of Labor requirements. The lender must note in SBA's system and its credit memorandum that a ROBS plan is funding the equity.
Lender checks
The lender must confirm that the ROBS plan meets those outside requirements. SBA will not review those items, even on non-delegated applications. The lender must also consider that poor plan administration can cause disqualification and tax consequences that may hurt repayment.
Guaranty
The lender must obtain the full unconditional guaranty of each plan sponsor, regardless of the sponsor's ownership. It must be a secured guaranty if SBA's collateralProperty a lender can take and sell if a loan is not repaid. policies require one. The 401(k) plan itself cannot guarantee the loan.
Documents
- IRS favorable determination letter for the plan
- Annual Return or Report, such as Form 5500, for an existing plan
- C corporation formation documents
- 401(k) plan adoption documents
- Stock purchase documents
- Related corporate resolutions
Other limits
- SBA loan proceeds may not pay plan formation costs.
- The deal cannot use an Eligible Passive Company and Operating Company structure, because the plan cannot give the guaranty the rule requires.
- Before disbursement, the borrower must certify that it and the plan comply with IRS, Treasury and Labor rules.
A tax adviser should review the plan's rules before you commit retirement funds.
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