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Can the US Government Seize Your 401k or IRA?

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Last year, the Irish government passed a law which placed a 0.6% levy on assets held in private pensions for each of the next 4 years. The Irish tax on private pensions was made in response to a larger financial crisis and the need to increase government revenues. Ireland isn’t the only country in recent history to seize private investments. Hungary, Argentina and France have all overhauled their private and public pension plans in recent years, in some cases seizing them in their entirety, and in others, taxing them to oblivion. There have been recent discussions of something similar in the United States, which brings up a good question – are private pensions and retirement plans in the US also at risk?

Is Your 401k or IRA in Danger of Government Seizure?

Can the government take your 401k?

Will the government scramble your nest egg?

Lets get one thing out of the way first: unless you have an IRS lien or other legal judgment against you, the US Government has no legal standing to seize the contents of your private retirement account, such as your 401k, IRA, Thrift Savings Plan, your self-employed retirement plan, or any other retirement plan.

Can the government take your 401k? Absolutely. But not without changing the laws, and in this case, it would take an act of Congress for the US Government to be able to seize your retirement funds. That means it would need to get through Congress, the President, and the Supreme Court before it would happen. And getting past the Supreme Court is where I see there being big problems – keep in mind that ownership of private property was one of the founding principles of our country. It is very difficult for the government to seize private property at will. The government can, and does, seize private property, but only in rare cases and through a legal process called eminent domain, which is when land or other property is seized “for the greater good.” However, the government is required to pay fair market value for whatever they seize.**

**This is a simplified explanation of eminent domain, which is a highly complex and much debated topic. I’m not a lawyer, but I don’t think eminent domain would be a legal basis for seizing retirement accounts. Taxation, however, is a different topic, and the government can easily change tax laws.

What about the rumors of a government takeover?

Every few years there are rumors that a particular administration wants to seize private retirement funds, and so far it hasn’t happened. The rumors come in different flavors and several ideas have even been proposed before Congress. For example, the Clinton Administration proposed a one time tax against the value of private pensions, 401k plans and IRAs.

A more recent proposal involves seizing and converting a portion of privately held assets into US Treasury bonds. A more extreme proposal is a true government takeover of retirement plans which involves seizing private retirement accounts and converting them to government sponsored annuities that would guarantee and annual income for all Americans.

What basis is given for a takeover of retirement plans?

There are many reasons given to support these ideas, and the most frequently given reasons circle around the idea that converting some or all of the privately held investments into an annuity or into Treasury bonds would protect Americans from themselves and possible market fluctuations and guarantee an income for retirees. In essence, the government believes it can do a better job of managing your retirement funds than you can.

The reality is these proposals would represent a redistribution of wealth and further extend the problem that got the government in trouble in the first place – writing IOUs. Seizing pensions or retirement plans now and replacing them with a Government Treasury bonds or a government sponsored annuity simply gives the government money to spend now and passes the problem on to a future generation. It also goes against the reason private retirement plans were created.

The purpose of retirement plans

Let’s back up and look at the purpose of 401k plans, IRAs, and other retirement plans. These retirement plans maintain a special tax status and were created for a specific reason: to entice more people to save on their own because Social Security benefits do not pay enough for most retirees.

Social Security is not intended to be a full retirement plan for everyone; it is intended to help people through retirement. Several decades ago Congress was smart enough to realize that people needed to take more of their retirement planning into their own hands, so they created the tax incentives we know today as the 401k plan, IRA, and similar retirement plans. The special tax rules found in these retirement plans provide an incentive for people to take care of their own retirement planning and not rely on the government for 100% of their retirement needs.

How retirement plans affect the government

Retirement plans are good. They provide retirees with a source of income and in many cases help keep people off government benefits. For example, Medicaid eligibility is age and income based, starting at age 65. Social Security benefits are also taxable for retirees who meet a certain income threshold. So retirees receiving enough income from their retirement savings stay off Medicaid and pay taxes on their 401k withdrawals and Social Security benefits, both of which help the government.

While retirement plans help the government, they can also hurt it in other ways. In the case of retirement investing, what is good for investors can be bad of the US government. The tax benefits offered by retirement plans limit or defer the income tax the government collects, to the tune of billions of dollars per year.

For example, Traditional IRAs and 401k plans offer investors an immediate tax break on contributions and the proceeds are taxed when the money is withdrawn in retirement age – often deferring income tax for decades. Roth IRAs and 401ks are the opposite, with the contributions being made after taxes have been assessed, and the withdrawals and income growth being tax free. These tax benefits are the reason there are contribution limits on IRAs and other retirement plans. Without contribution limits, the government would severely limit their income tax receipts.

What will the government do with private retirement plans?

Will the US Government seize private retirement plans? The simple answer is, we don’t know. It’s very possible the government could pass a law that seizes every private pension and retirement plan in the US and replaces it with a government annuity to be paid out once retirees reach a certain age. It’s also possible they will do nothing and leave things as-is. My guess is the government won’t “seize” retirement plans like other governments have, but I wouldn’t be surprised to see things will change.

Let’s face it, our government is hurting. There are huge gaps in our fiscal policy and unless we see changes soon, something major will happen, possibly even the collapse of the dollar and our economy. But seizing private pensions wouldn’t solve that problem, and in fact, it could be seen a as sign of weakness by the global economy and hasten the fall of the US Dollar compared to other currencies. Additionally, seizing private retirement plans would be political suicide for politicians.

What changes might we see to retirement plans?

We can’t see into the future so all we can do is speculate. I don’t see the government seizing retirement funds from private individuals. However, I wouldn’t be surprised to see the government make changes to the number and scope of retirement plans. But this would probably be a gradual change and old plans would likely remain grandfathered in.

For example,the US government could decide to decrease retirement plan contribution limits, lower the income eligibility threshold, or eliminate some retirement plans altogether. But even if they do this, they would likely grandfather in current contributions, meaning your retirement plans in their current state would be safe.

What can we do to prepare for our retirement?

Right now I don’t think there is anything to be scared about. We can’t control the future, so the best course of action is to continue preparing the best we can based on the information we have at hand. This means to continue making investments based on current tax laws, while being mindful of possible changes. Personally, I am preparing for retirement by investing in my 401k and IRA, and I am also investing in taxable (non-retirement) investments when I can. It is wise to be aware of possible changes to tax laws, but I don’t think it’s wise to let fear and unsubstantiated rumors drive one’s investments and retirement planning. So I will continue investing responsibly, and I will keep an eye on the news.

What do you think? Will the government take over private retirement plans?


Published or updated April 25, 2012.
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{ 36 comments… read them below or add one }

1 Ross @ go Be rich

Yet again just one more reason to be diversified. It seems as if the government will eventually have its hand in everything, and there won’t be anything left that’s untouched and left alone for us to depend and rely on (this might be why Atlas Shrugged is my all-time favorite book).

But like you said, all we can do is continue on and hope for the best, and things will more than likely turn out for the best.

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2 Ryan

Ross, I think diversification is the key to all things financial – it’s always nice to have multiple streams of income, whether you are in your prime earning years, or in retirement. Putting all your eggs in one basket usually results in having too much risk.

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3 Tim

Hi Ryan

This article was very well written – great job.

I agree with you that we shouldn’t be afraid of any government takeovers of private retirement plans any time soon. CAN it happen…I suppose anything can happen, right? But, I don’t think it’s something that would pass in the near future (next 50 years) unless we get some real crazies elected in our courts.

I think that by spreading your wealth among financial tools like pre-tax, Roth, after tax investment accounts, you’ll be prepared.

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4 Kirk Kinder

Ryan,

Thought provoking article. I think if the government tries to do this that there will be serious uprisings. The lesson we should all learn from this mess is the government cannot manage itself. Our downfall will come due to reckless government spending and outsourcing our money supply to bankers (the Fed). I think they will be hard pressed to convince Americans that they should depend entirely on the government for retirement when SS and Medicare are heading for substantial cuts or a downright default.

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5 Ryan

I agree, Kirk. This article was primarily in response to comments on a recent article we published, 8 Smart Reasons to Never Raid Your 401(k), in which several people claimed the government would take over retirement plans. Several scenarios have been proposed, but so far I don’t think they have gotten very far in Congress – it would be difficult to convince Americans this would be for the greater good of the nation and it would likely be political suicide for any politician who supports it.

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6 Evan

I don’t think the extreme case would happen here only because the political party that voted for an invasion of private dollars would be signing their own resignations lol

I couldn’t believe when Argentina did it 10 years ago! The thought makes me nauseous

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7 JW

Ryan, I am sorry to report, it has begun. Just a first step, but it’s coming. But this bill is really, really, truly, to protect us from ourselves, you see.

http://www.bloomberg.com/news/2011-05-18/senate-bill-would-limit-savers-using-401-k-s-as-rainy-day-funds.html

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8 Ryan

JW, thanks for backing up my point. This article is a great example of how the government isn’t taking money from private retirement plans as virtually all of these proposed changes are designed to benefit investors.

For those who haven’t read the article, the bill would:

  • - reduce the number of outstanding loans workers may take from a 401(k) to three (employers could place further limits on the number of loans allowed)
  • - give participants more time to repay loans after losing a job (most loans must currently be repaid within 70 days or face early withdrawal penalties).
  • - allow participants to continue contributing to their 401(k) plan after taking a hardship withdrawal
  • – ban debit cards linked to the accounts

The provision which gives plan participants more time to repay a 401(k) loan after they leave their job would be a huge benefit to plan participants. The major problem with 401k loans is that they are due almost immediately after leaving employment, regardless of the reason the employee left the job. It is extremely difficult for people who are laid off or otherwise downsized to repay their loan in full within 70 days if they don’t have a job. Many times these loans go into default and the loan is then counted as income on their tax return and they can be assessed the 10% penalty and be required to pay income tax on the loan. Giving more to repay loans could mean the difference between a default – resulting in no (or reduced) early withdrawal penalties. Another fact that may be overlooked is that reducing defaults on 401k loans would also reduce the government’s take, since they wouldn’t be able to assess taxes and penalties at that time.

The only two proposals that limit these accounts are the ban on debit cards (these are a horrible deal anyway and usually racked with high fees) and the limit on the number of loans one can take from their retirement account. And limiting the number of 401k loans isn’t necessarily a bad thing. It will force people to think long and hard before taking the loan and it still leaves participants with options – take a larger loan, make an early withdrawal and pay the penalties, and/or work on changing their lifestyle.

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9 Ken

The US government will use another method to essentially seize retirement accounts and bypass the court system. How? By “means testing” folks who have saved money in 401k, 403b accounts, and making them not eligible to collect social security and medicare…. Plans which they’ve paid into their entire working lives. Essentially, the government will seize their benefit iou. There’s already talk from both parties to do this; sneaky but essentially the same seizure of assets when you consider that the people deemed ineligable to collect benefits will be required to continue to pay into the system.

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10 Matt

There are no longer any property rights. in Kelo vs. New Lodon the Supreme Court ruled that private property can be seized by eminent domain even if the only purpose is to increase tax revenue for the State. Several private properties, some of which had been in families for generations, were seized by New London, the properties razed, and supposedly be used by Pfizer to build a research center and meeting campus. Pfizer changed its mind and today the area is a weed choked mess. So don’t think for a moment that the Government wouldn’t consider seizing your precious assets and turning them into non-convertible Treasury securities paying a measly 3%. They have already done this with Social Security. The first step will be to “means test” your social security benefit, then seizure.

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11 Ryan

Properties have also been seized to build Wal-Marts, shopping centers, and suburban developments. It can and does happen. But seizing private bank accounts and investments is much different than seizing land. It’s easy for people to ignore a plot of land being seized halfway across the country when it doesn’t directly affect them. Sure, it’s awful and you would hate it if it happened to you. But would you protest and vote someone out of office over it? Probably not, unless it happened near you or otherwise directly affected you. Seizing retirement accounts or other financial accounts would have a direct affect on thousands of voters and would be felt across the nation, not just in a localized area. People would let their votes show their displeasure, and as we all know, the most important thing to most politicians is staying in office.

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12 otbricki

The seizure you are talking about STILL required fair compensation. It isn’t an outright taking.

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13 Felicia

Hello Ryan,

This is my first time reading your articles and I must say very nice!

Yes, I believe the government will reform the current system of planning for retirement. They could very well implement a tax on the programs, IRA’s, 401k, etc. and then go through the process to change the laws in part or completely.
Although, their justification is that they can do a better job of saving our money for us, one only has to ask who was in charge of our money when the money crisis grew to the condition we are in today.

Thank you,
Felicia

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14 Jennifer from Credit Karma

Thanks for an informative and thought-provoking post, Ryan! … Time to go diversify just in case.

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15 Jennifer

Is an IRA considered private property that would be subject to the Executive Order recently signed by Obama that allows for the confiscation of personal property in peace time?

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16 Tiffany

Every American needs to read this book!
The Great Wall Street Retirement Scam, What THEY don’t Want you to know about IRAs, 401ks and other plans by Rick Bueter.

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17 Richard

gold, silver and diamonds people… this is a no brainer… ofcourse they are coming for your money … study history… happens everytime with paper fiat currency

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18 Wm. Sweeney

Your conclusion is right, but to give this much attention to this issue seems to add credibility to these off the wall rumors.
The only factual ‘takeover’ of IRA’s that is credible is legislation initiating changes in inherited IRAs — where those inheriting an IRA and rolling that asset into their own IRA account would need to liquidate and pay income tax on the inherited amount over a five year period. Currently, no withdrawals (and taxes) are due until retirement of those inheriting that type of asset. To my knowledge, these proposals have not moved through Congress.

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19 Bruce A.

I am new to this site and thus I do not know when the article was posted. I hear today, 11/12/2012, calls for and rumors of, bills to take control of 401K accounts. The money will then be administered “fairly” to the retiree.

Concluding that such confiscatory laws would not make it through the Supreme Court is laughable. 401Ks create a tax advantage for the worker, therefore such accounts are directly accessible by several agencies. The doors are wide open, in this administrations eyes, to make administrative changes, by fiat if necessary, that assume direct control of these accounts.

The Supreme Court did not support challenges to Obamacare funding methods. Nor have they ruled against retroactive tax laws which, in my assessment are contrary to the Constitution. I see no indication that they would quash such a move on the 401k by this administration

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20 Jennifer C.

Hi, Bruce
I agree with you wholeheartedly. On what basis do we conclude that the Supreme Court would stop the government from seizing our assets? On the basis that they refused to hear challenges to Obama’s eligibility? On the basis that they upheld nationalized health care? Or on other clear demonstrations that they take the Constitution and people’s concerns to heart (not)? Further, given that Obama hands out executive orders the way the Easter Bunny hands out candy, and Congress has proven itself both willing and able to infuriate the taxpayers by shoving Obamadeath and an expanded deficit down our throats (note that Nancy Pelosi even retains her seat as House Minority Leader), where do we find evidence that congress would be too afraid of the taxpayers to seize our retirement accounts?
The only thing Congress is afraid to do is anger every American who has his or her hand in the cookie jar, and their armies of enablers, by shutting down all the entitlement programs. American life is rife with entitlements, from “free” public education to Social Insecurity to Medicare and Medicaid, which are all just big Ponzi redistribution schemes. They’re all based on the assumptions of a higher birth than death rate, the maintenance of a strong work ethic among the general population, and a job market with good employment possible for all. We no longer enjoy those conditions, however, the redistribution monsters live on. We want Congress to balance the budget, but we refuse to allow our enshrined “rights” to die. The result is that the politicians can’t cut these major offenders out of our budget, and they can’t admit that they’ve spent all the savings, anyway, so they just keep playing musical chairs and hoping they will have gotten theirs before the music stops.

Of course our so-called leaders aren’t going to come out and make a show of confiscating the private retirement accounts of the diminishing percentage of fiscally responsible citizens, but knowing that they’ll be able to pass the buck for another few years while scoring points with the grasshopper sheeple for ‘coming to our rescue’ against poverty in our old age, why WOULDN’T they seize the stored fat of the ants?

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21 Tom

Jennifer,
Unfortunately, I have to agree with you. With so many on the government dole, politicians must keep them happy or risk being voted out. It appears the only way to do that now, since foreign governments are in no position to continue to purchase our debt, is to confiscate what the American people have been able to save. The next several years should be interesting (scary).

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22 Kevin

I’m a firm believer in term limits for ALL political positions and for the Supreme Court too. Limits would help politicians focus on the issues and stop worrying about how to get re-elected. Career Politian’s should not be allowed!!! I would like to see the voters push for this type of reform.
Any ideas and how to start this movement? I’m serious, I think most of the problems would eventually disappear. So how do we start???

23 Dan

So the question I have is, if I have money in 401K’s is there any reasonable way to pull it out and get it in to accounts that the US government cant confiscate? Lets face it, if they can change the 401K rules then they can get to just about any money in any government sponsored plan right? Or is it worse than that, could they completely destroy the entire investment process in the US by just taxing it in to oblivion or something silly like that. I know this all sounds crazy but I am beginning to think just about anything could happen with this government.
I guess the question I really have is , does it make sense to think about getting my money in to offshore accounts and funds at some point. is there even a mechanism to do this? I know that tax hit would be horrible but better than having the gov. just spend it on “social fairness”.

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24 Ryan Guina

I understand the fear factor, Dan, but you would need to be careful moving money overseas. US citizens are still required to report money held in offshore accounts, and in many cases, pay taxes on it. I recommend thoroughly researching taxes for withdrawing retirement funds, offshore accounts, and other factors before making a knee-jerk action.

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25 CLARENCE BROWN

Hi Ryan, This will be a long hard fought battle, but it will be done. Governments are destroying their nations. Why should the US be any different?

My take: Seventeen trillion (plus) in retirement funds. Government is broke. They will take your Retirement accounts and say they will invest it and give you a monthly amount of return when you retire. You won’t be able to move it around, or use it in anyway When you die it will be taken by the government. You will not be able to leave it to your heirs. It will be like Social Security is now. The money is gone, the bonds that are in the SS trust fund are non redeemable except to and by the Federal government.

The sad part will be, when the Feds take these accounts, they will not pay off the debt that will have ballooned to around twenty five to thirty trillion dollars by the time this action is taken. Rest assured it will happen, Just as they are trying to get around the 2nd Amendment. and make gun illegal. This will not happen over night. The re-education of the citizens is not yet complete. ———- But it will happen. ——Thanks for the forum and your time

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26 CLARENCE BROWN

Ah —One more question: what will happen to the contributions by the company you work for to your 401k. Most are gone now. This will kill employer 401k’s as I see it. Also killing off employees investing in their companies stock.

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27 CLARENCE BROWN

During the time the government introduced the Roth, They introduced another plan that was too favorable to the taxpayers and took it away year later. Making the tex burden retro to the first of the year. Yes it did cost me money and my bookeeper a head ache.
Ryan the government can do what they wish and almost make you like it.—- or make you wish you had liked it at the time.

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28 Tucker

Of course the government will take our retirements. It is only a matter of time and of course they will say it is “for the greater good.” They will also say, “You won’t have to worry about your retirement anymore. We will take care of you.” Get your money out while you still can and buy tangible assets such as bullets and beans.

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29 Paul

I concur with the pessimism many have about our government and what they could do. I used to be more optimistic about our government, but the last five years has made it all vanish. As Ronald Reagan quipped, “The nine most terrifying words in the English language are: ‘I’m from the government and I’m here to help.’”

Here is my take on the threat of takeover: I have a lot of money in my 401K, I have been putting money in it consistently since the early 1980′s and I have a ways to go until I am 59.5 years old. The tax impact would be draconian to pull it out now. I believe the next indicator is November 2014. If Obama is successful in denigrating Republicans to the point of taking the House, then I will take this huge hit and pull the money out. Republicans will not allow Obama to confiscate our retirement funds, but the Democrats are the ones that have been pushing for this – starting back in 2007. An unfettered Democratic Party I strongly believe will confisicate these funds, and they are the same ones that have no desire to cut spending.

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30 Rod Sullivan

Ryan. I teach Constitutional Law at a law school. Your statements about the process of going about seizing assets is accurate only in theory. In practice, the actions of a President under his Emergency Powers have virtually never been declared to be unconstitutional. The Supremes grant the President extreme deference, and the likelihood that they would stand in he way of raising revenue by seizing 401k and IRA accounts in time of emergency is, IMO, nil.

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31 Evan

Clearly not the exact same thing (Local vs Federal) but would you have guess Kelo was going to turn out the way it did?

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32 Ryan Guina

Thanks for the comment, Rod. I am certainly not an expert in constitutional law. But I would think there would need to be a massive crisis for a President to exercise Emergency Powers to seize private retirement funds.

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33 otbricki

It seems to me how severe the actions are and what the circumstances are. For example the Supreme Court held Lincoln’s attempt to suspend Habeus Corpus unconstitutional, despite the insurrection that was going on.

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34 colleen

Does this apply to 403b’s? I work at a University and we cannot take out loans or hardship withdrawals on our 403b.

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35 geekymom

I think if they even tried to do this their would be massive riots over it. I also believe people would pull their money out before the government could seize it and no one would continue to contribute money to their plans. I don’t see this working out, even if they tried it. Will someone try to pass a law like this? Probably, but I don’t see it getting far.

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36 James Connelly

Stand by or better yet bend over. Obama care is not wanted by 65% ? of the people. Our government could not make it into law so they called it a tax. They will take your retirement savings through some other name but it will still be gone. When has our government ever represented the people who are a majority? Name one government program that works. They posture and talk and talk, then hang their heads and say they did their best while exempting their selves. Not only has the governments program failed, our government has failed. They will say they stopped the takeover of all our savings but had to give up a percentage to keep from losing all of it. They know there’s always tomorrow and some other plan to get the rest.

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