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Monday, May 10, 2010

If I get disability benefits, can I take money out of my 401k without paying the 10% penalty?

If you get Social Security Disability or Long Term Disability (or some kinds of VA disability benefits), you may be able to avoid paying the 10% early withdrawal penalty if you take funds out of your 401k plan.

A lot of people who get disability benefits have to tap into their 401k plans to pay bills and take care of other expenses. When you do that, you usually will get a Form 1099-R for the distribution, and box 7 will usually be checked indicating it is a loan. You will have to pay the loan back at a reasonable interest rate, or you face paying a 10% early withdrawal penalty.

However, if you are disabled, you can avoid the 10% penalty. You prove disability by showing that you cannot perform substantial gainful activity because of your physical and mental conditions. This is very similar language to Social Security's disability standard. It is also the same language the government uses for a person to prove 100% disability based upon individual unemployability (often called a claim for 'TDIU') under the VA disability system. It probably is not the same language you will find in your Long Term Disability ('LTD') insurance policy or ERISA (group employer or union) plan. However, if LTD plan pays benefits based upon your inability to engage in any occupation and you have proven that, it is very similar.

Visit the IRS web site to learn more about early 401k withdrawals. Talk with your CPA about filing Form 5329 and entered code 03 on the form.

Copyright (c) 2010 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. For assistance with your Long Term Disability claim, ERISA Disability benefit claim, Social Security Disability claim, or Veterans Disability compensation or pension claim, call Disability Lawyer John Tucker at (866) 282-5260.

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