Changing Your SOSEPP – Once, just once

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If you’re taking (or planning to take) early distributions from an IRA using the 72(t) provision with a Series of Substantially Equal Periodic Payments, also known as a SOSEPP, you need to know a few things about this arrangement. For more information on SOSEPPs in general, see the article Early Withdrawal of an IRA or 401(k) – SOSEPP for more details.

Generally when you establish a SOSEPP you have to stick with your plan for the longer of five years or until you reach age 59½ years of age. However, the IRS allows changing your SOSEPP one time, and only one time. And then, the rules only allow changing your SOSEPP from either the fixed annuitization method or the fixed amortization method to the Required Minimum Distribution method.

This is the only exception allowed for changing your SOSEPP during its enforcement period, which is the later of five years after you started the SOSEPP or when you turn age 59½. The exception is documented in Rev. Ruling 2002-62, 2.03(b).

If you’re planning on changing your SOSEPP in a manner other than the above-described methods, you will effectively “break” the plan, meaning that the SOSEPP is no longer in place. Doesn’t sound like such a bad thing, right? That’s where you’re wrong though… because if you break a SOSEPP, there are some very nasty ways that the IRS will get back at you.

This can be as simple as increasing or decreasing the amount you withdraw slightly, or forgetting to make a withdrawal altogether, or possibly taking two distributions (a double-dip) in one year. There’s not much room for “forgive and forget” on this from the IRS. For more on the consequences of breaking a SOSEPP, see the article Penalties for Changing a SOSEPP.

There is no specific provision in the Internal Revenue Code for relief from the penalty if you have broken your SOSEPP.  On the other hand, the IRS has in some cases granted relief in several private letter rulings by determining that a change in the series of payments did not materially modify the series for purposes of the rules.

If the series is broken due to an error by an advisor (for example), some prior PLRs have been issued in favor of the taxpayer.  PLR 201051025 and PLR 200503036 each address the situation of an advisor making an error and the distributions were allowed to be made up in the subsequent year.  Bear in mind that PLRs are not valid for any other circumstances other than the specific one in the ruling, and cannot be used to establish precedence for subsequent cases.

But in reality, the likelihood of your getting a favorable PLR for your case of a broken SOSEPP is small – unfortunately, breaking the series usually results in application of the penalty for previous payments received, and the SOSEPP is eliminated.  If you wish to restart the series you can do so, but you are starting with a new five-year calendar (the series must exist for at least five years, or until you reach age 59½, whichever is later).