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Section 409A of the Internal Revenue Code was enacted on Oct. 22, 2004 in an effort to regulate executive pay practices through the federal tax system. Failure to account for ' 409A's impact can seriously and adversely affect the economics of employment agreements, severance agreements, and other similar plans or other arrangements providing for a deferral of compensation. Consequently, this article details how ' 409A applies to these arrangements.
What Is ' 409A?
What is ' 409A and why does it warrant such special attention? Section 409A sets forth new rules regulating nonqualified deferred compensation. It warrants special attention for two reasons. First, ' 409A regulates deferred compensation through a large number of detailed rules. This is in sharp contrast to the state of the law prior to ' 409A, when there were few specific tax rules in this area. The proposed regulations interpreting ' 409A total 240 pages. Final regulations may be longer. Some of the rules are difficult to apply; others are not. Regardless of difficulty, though, these rules must be considered in designing and drafting employment and severance arrangements.
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