Tuesday, November 16, 2010

Beware! Is Your Nonqualified Deferred Compensation Plan Linked to a Qualified Plan

The regulations under Code Section 409A have some strange rules related to "linking" nonqualified and qualified retirement plans, or linking multiple nonqualified retirement plans together. Once upon a time, a fairly typical retirement benefit structure include these plans for executives:

  • A qualified defined benefit plan
  • An "excess plan" with the same formula as the qualified plan, but designed to provide for benefits above the 415 limit and on pay above the pay cap
  • A SERP with a different, usually more generous formula, offset by benefits under the other 2 plans
Often, the SERP had different early retirement benefits and different or more subsidized optional forms of benefit available.

This structure can be particularly problematic under 409A (you can read about it in my article here: http://www.aon.com/attachments/jpm_409a.pdf ).

If you have such a structure, the IRS and Treasury is saying that you cannot fix the problem under the documentary correction programs in Notice 2010-6. Currently, the regulatory position is that linked nonqualified plans can be fixed, but nonqualified plans impermissibly linked to qualified plans cannot be fixed penalty free.

Any advice I would give would vary from situation to situation, but if you do have problematic plans, you will want to fix them sooner rather than later.

This blog does not provider legal, tax, or accounting advice which can only come from a qualified provider.

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