39-22-104(4)(f) Pension and Annuity Subtraction. Basis and Purpose. The bases for this rule are §39-21-112(1) and §39-22-104(4)(f),

C.R.S. The purpose of this rule is to clarify what income qualifies for the pension and annuity subtraction. (1) General Rule. (a) Pension and annuity benefits subject to the limitations set forth in paragraph (2) are eligible to be subtracted from a taxpayer’s federal taxable income if the benefits are paid periodically, are attributable to personal services performed by an individual prior to his or her retirement from employment, paid after such retirement, and that arise from: (i) An employee-employer relationship; (ii) Service in the uniformed services of the United States; or (iii) Contributions to a retirement plan that are deductible for federal income tax purposes. (b) Periodic payments means a series of amounts paid at regular intervals (e.g., weekly, monthly, or yearly) over a period of time greater than one year. (c) Additional Qualifying Benefits. The following pension and annuity benefits qualify for the subtraction, even though they are not paid periodically, are not attributable to personal services of the individual prior to retirement, and/or do not arise from one or more of the sources described in paragraphs (1)(a)(i)-(iii): (i) Distributions from individual retirement arrangements (IRAs); (ii) Distributions from self-employed retirement accounts; (iii) Amounts received from fully matured privately purchased annuities; (iv) Social security benefits; and (v) Amounts paid from any such sources (i.e., sources described in (1)(a)(i) - (iii) and (c)(i)-(iv), above) by reason of permanent disability or death of the person entitled to receive the benefits. (2) Limitations. The following are limitations on the subtraction: (a) The amount of income that can be subtracted is limited to: (i) $20,000 for a taxpayer who is at least 55 years of age, but not more than 64 years of age, at the end of the tax year (See paragraph (3)(c) for benefits received due to the death of the person who was originally entitled to receive such benefits); or (ii) $24,000 for a taxpayer who is at least 65 years of age at the end of the tax year. (b) The subtraction applies only to the extent taxpayer reports, in the same tax year that the subtraction is claimed, the pension or annuity benefit as federal taxable income on his or her federal income tax return. (c) Premature Distributions. Distributions from an IRA or self-employed retirement account plan (e.g., a 401(k), savings incentive match plan for employees (SIMPLE), or Simple Employee Pension (SEP) retirement plan for a self-employed taxpayer) that are deemed to be premature for federal income tax purposes do not qualify for the subtraction. A premature distribution (sometimes referred to as an early distribution) for federal tax purposes means a distribution that is subject to a federal income tax penalty (sometimes referred to as additional federal tax). See I.R.C. § 72(t). In general, a distribution made before a taxpayer reaches the minimum retirement age required by the pension or annuity plan is subject to the premature distribution penalty. However, federal law does not impose the premature distribution penalty for certain distributions made prior to the minimum retirement age (e.g., death, hardship, etc.). See I.R.C. § 72(t). These distributions are not disqualified from the subtraction if they otherwise meet the requirements and limitations of paragraphs (1) and (2). The restriction regarding premature distributions does not apply to pension and annuity benefits distributed from sources other than an IRA or self-employed retirement account plan. (i) Example 1. A distribution made from a self-employed 401(k) retirement plan to a taxpayer who is 55 years old does not meet the minimum retirement age for federal tax purposes and, therefore, is considered a premature distribution subject to the federal income tax penalty. Such distribution is not eligible for this subtraction because a premature distribution from a self-employed retirement account is not eligible for the subtraction. (ii) Example 2. Same facts as Example 1 except that the 401(k) plan is not a self-employed retirement plan but, rather, a retirement plan arising from an employer-employee relationship. The distribution is eligible for the subtraction even though the distribution is subject to the premature distribution penalty because premature distribution penalty only disqualifies distributions from self-employed retirement accounts and IRAs and does not disqualify distributions from other retirement plans. (iii) Example 3. Same facts as Example 1 except the distribution is a lump-sum distribution of the entire fund made for hardship and, therefore, is not subject to the federal premature distribution penalty. The distribution is allowed as a subtraction. Note that the distribution is eligible for the subtraction even though it is a lump- sum payment (i.e., not a periodic payment) because distributions from a self-employed retirement plan do not have to be periodic. (iv) Example 4. Same facts as Example 2 except the distribution is a lump-sum distribution of the entire fund and is subject to the premature distribution penalty. The distribution is not eligible for the subtraction because the distribution does not qualify as a periodic payment. (d) See §39-22-104(4)(f)(III), C.R.S. for apportionment of social security income reported in a Colorado joint return. (3) Examples of Pension and Annuity Benefits that Qualify for the Subtraction. The following is a non-exhaustive list of pension or annuity benefits that, if the benefit is derived from one or more of the sources described in paragraph (1), above, and is subject to the limitations of paragraph (2), qualify for the subtraction: (a) Pension and annuity plan benefits provided by a government employer to its employees after retirement. (b) Distributions from a 401(k) plan, tax-sheltered annuity plan (403(b) plan), 501(c)(18)(D) plan, salary reduction simplified employee pension plan (SARSEP), SIMPLE plan, thrift savings plan for federal employees, IRAs, SEP plan, profit-sharing plan, defined benefit plan, money purchase plan, employee stock ownership plan, 457 plan, governmental plan (e.g., 401(a) plan), and 409A nonqualified deferred compensation plan. (c) Pension and annuity benefits, including any lump-sum distributions from sources in paragraphs (1)(a)(i) - (iii), paid to an individual who is less than 55 years of age at the close of the tax year if such benefits were received because of the death of the person who was originally entitled to receive such benefits. This paragraph (3)(c) applies only if the benefits are paid to an individual. The $20,000 dollar limitation in paragraph (2) applies to individual beneficiaries who are, at the end of the tax year, less than 65 years of age (including beneficiaries who are less than 55 years of age), and the $24,000 limitation in paragraph (2) applies to individual beneficiaries who are at least 65 years of age at the end of the tax year. Non-individuals (e.g., trust, estate, partnership, and other legal entity) that receive such benefits and individuals who receive such benefits from non- individuals may not claim the subtraction, even if the entity that received the benefit redistributes the benefit to an individual. (d) Taxable permanent disability benefits received by an individual described in paragraph (1)(c)(v) who meets the age limitations set forth in paragraph (2) even if the compensation is characterized as wages rather than pension and annuity income for federal income tax purposes. (e) Payments made pursuant to a divorce settlement or decree to the extent the payments arise from one of the sources listed in paragraph (1) and are subject to the limitations of paragraph (2). The settlement or decree must expressly state the amount of the pension or annuity benefit allocated to the taxpayer in order for the taxpayer to claim the subtraction. A nonperiodic payment representing a future stream of periodic payments from a pension or annuity plan made pursuant to the divorce settlement or decree will not qualify for the subtraction, unless the pension or annuity plan benefit is a pension or annuity plan listed as an exception in paragraph (1)(c), above. (4) Examples of Pension and Annuity Benefits that Do Not Qualify for the Subtraction. The following is a non-exhaustive list of benefits that do not qualify as a pension or annuity benefit for purposes of this subtraction: (a) A lump-sum distribution from a qualified or nonqualified pension or profit- sharing plan as defined in I.R.C. § 401. (b) Distributions from a Roth IRA are excluded from federal gross income and, therefore, are not eligible for the subtraction. Contributions are also not eligible to be included in the subtraction. (c) Sick leave or vacation leave payout. (d) Early retirement incentive pay. (e) Severance pay. (f) Unemployment benefits. (g) Interest income from a bank plan that is distributed to a surviving spouse as retirement income upon death of deceased spouse. (h) Joint savings accounts or jointly held certificates of deposits that are paid to the surviving spouse or owner. (i) Alimony payments, including that portion of military pension awarded to a nonmilitary spouse as a result of a divorce settlement that is classified as alimony, except for alimony income that meets the requirements set forth in paragraph (3)(e), above. (j) Life insurance proceeds. (k) Payments from a long-term care insurance contract. (l) Disability payments that are not for permanent disability, regardless of their source, even if reported as pension and annuity income on taxpayer’s federal income tax return. (m) Insurance or civil damages compensation for loss of use or function of a part of the body (e.g., loss of a limb). (n) A guaranteed payment by a partnership to a partner, unless the payment is part of a plan that meets the general rule of paragraph (1) and subject to the limitations of paragraph (2), above. (o) Distributions from an otherwise qualified profit-sharing plan to an employee prior to retirement. (p) Distributions from an otherwise qualified employer-sponsored savings plan or employee stock ownership plan prior to retirement. (q) Contribution to a pension or annuity plan, regardless of whether the contribution is taxable to the beneficiary of the pension or annuity plan at the time the contribution is made. (r) Distribution of interest income derived from an U.S. savings bond, unless the bond was an asset of a pension or annuity plan that qualifies for the subtraction. (5) Trusts/Estates. (a) Trusts and estates cannot claim the pension and annuity benefit subtraction. (b) An individual who is a beneficiary of a trust or estate cannot claim the subtraction for distributions of pension or annuity benefits from a trust or estate. (6) Railroad Retirement Benefits. (a) Railroad retirement annuity benefits, including Tier I and Tier II, annuity benefits for spouses, divorced spouses, survivors, vested dual benefits, supplemental railroad retirement annuity benefits and railroad disability benefits are exempt from state taxation under Section 231m of the Railroad Retirement Act (45 U.S.C. 231m and 231a(a)), regardless of whether such benefits meet the qualifications set forth in paragraph (1) of this rule. The amount of such subtraction is not limited by the dollar limitations set forth in paragraph (2), above. If a taxpayer also receives pension or annuity benefits described in paragraph (1), above, that qualify for the subtraction, then the amount of railroad retirement benefits is not included in calculating whether pension or annuity benefits of paragraph (1) have exceeded the dollar limitations set forth in paragraph (2). (b) If the benefits described in paragraph (6)(a), above, are included in the taxpayer’s federal taxable income, the benefits are subtracted when computing Colorado taxable income as a “railroad retirement benefits subtraction.” The income included in the railroad retirement benefits subtraction cannot be subtracted a second time under the pension and annuity subtraction and the amount of any railroad retirement benefits subtraction will not count against the $20,000 or $24,000 limitation of the pension / annuity subtraction.