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Second Opinion: New Tax Requirements for Nonqualified Deferred Compensation

By Dana Scott Fried
January 26, 2005

In addition to or in lieu of broad-based tax-qualified retirement plans, employers often provide select executives or groups of executives with nonqualified deferred compensation arrangements. (See article by Philip Berkowitz.) These “arrangements” may be in the form of a plan, a written agreement or even a clause in an employment agreement. Much like a “401(k)” tax- qualified retirement plan, these arrangements typically provide for an advance written election by the executive to defer the receipt of otherwise payable future compensation. However, unlike tax-qualified retirement plans, which by law must generally preclude the distribution of benefits prior to an event such as death, disability, retirement or separation from service with the employer maintaining the plan, many nonqualified deferred compensation arrangements have provided for far greater flexibility as to early access to plan funds. To date, the tax law has permitted nonqualified deferred compensation, along with the attendant deferral of tax revenues for the government, on the theory that it provided a tax-favored mechanism for the accumulation of additional savings for retirement. The implementation of nonqualified deferred compensation arrangements providing for distributions upon certain types of arguably foreseeable “hardships” (eg, to pay for college) or in return for a “haircut” forfeiture, cut against the notion that the revenue deferral effect on the government is outweighed by the benefit of permitting the accumulation of additional retirement funds, as these arrangements provide benefits which may not be used for purposes of retirement.

The American Jobs Creation Act (the “Act”) was passed by the House of Representatives on Oct. 7, 2004, and received final approval from the Senate on Oct. 11, 2004. President Bush was expected to sign the Act into law before the end of 2004. The Act enumerates an array of requirements intended to curb perceived abuses in the realm of executive compensation. In many ways, the thrust of the new requirements is to conform a number of aspects of the operation of nonqualified deferred compensation arrangements to those applicable to tax-qualified “401(k)” plans. Consequently, to be tax-effective under the new requirements of the Act, deferred compensation arrangements will need to operate in a fashion more akin to true retirement arrangements.

New IRC Section 409A

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