Section 409A of the United States Internal Revenue Code regulates nonqualified deferred compensation paid by a "service recipient" to a "service provider" by generally imposing a 20% excise tax when certain design or operational rules contained in the section are violated. Service recipients are generally employers, but those who hire independent contractors are also service recipients. Service providers include executives, general employees, some independent contractors and board members, as well as entities that provide services (an LLC, for example, could be a service provider).
History
Section 409A was added to the Internal Revenue Code, effective January 1, 2005, under Section 885 of the American Jobs Creation Act of 2004. The effects of Section 409A are far-reaching, because of the exceptionally broad definition of "deferral of compensation." Section 409A was enacted, in part, in response to the practice of Enron executives accelerating the payments under their deferred compensation plans in order to access the money before the company went bankrupt, and also in part in response to a history of perceived tax-timing abuse due to limited enforcement of the constructive receipt tax doctrine.
Basic summary
Section 409A generally provides that "non-qualified deferred compensation" must comply with various rules regarding the timing of deferrals and distributions. Under regulations issued by the IRS, Section 409A applies whenever there is a "deferral of compensation," which occurs whenever an employee has a legally binding right during a taxable year to compensation that is or may be payable in a later taxable year. There are various exceptions, excluding from the Section 409A rules compensation that would otherwise fall within this definition, including: qualified plans like the pension and 401(k) plans, and welfare benefits including vacation leave, sick leave, disability pay, or death benefit plan. Other exceptions include those for "short-term deferrals" (i.e. payments made within 2.5 months of the year in which the deferred compensation is no longer subject to a substantial risk of forfeiture), certain stock option and stock appreciation rights and certain separation pay plans.
Qualified and non-qualified deferred compensation
Section 409A makes a distinction between deferred compensation plans and deferral of compensation. The term "plan" includes any agreement, method, program, or other arrangement, including an agreement, method, program, or other arrangement that applies to one person or individual.
Section 409A specifies that unless any deferred compensation falls into a specified set of "qualified deferred compensation" categories, the IRS will automatically consider it unqualified deferred compensation. The qualified deferred compensation categories are: Qualified employer plans (these are basically employer retirement plans) Certain foreign plans Section 457 plans Certain welfare benefits Stock options
Timing restrictions
Section 409A's timing restrictions fall into three main categories:
restrictions on the timing of distributions
restrictions against the acceleration of benefits
restrictions on the timing of deferral elections
Distributions under a nonqualified deferred compensation plan can only be payable upon one of six circumstances:
the employee's separation from service
the employee's becoming disabled
the employee's death
a fixed time or schedule specified under the plan
a change in ownership or effective control of the corporation, or a change in the ownership of a substantial portion of the assets of the corporation the occurrence of an unforeseeable emergency
In addition, Section 409A provides that with respect to certain "key employees" of publicly traded corporations, distributions upon separation from service must be delayed by an additional six months following separation (or death, if earlier). Key employees are generally the top 50 employees with pay above $150,000.
The rules restricting the timing of elections as to the time or form of payment under a nonqualified deferred compensation plan fall into two categories: