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    New Laws for Non-qualified Deferred Compensation
    By: Lance Wallach


    This regulation is now under IRC Section 409(a).  The
    employees had until December 31, 2008 to make their
    elections for compensation to be received in 2009.

    In the first year in which a participant is eligible to participate
    in a plan, they may make an election within 30 days after the
    date of eligibility, but only with respect to compensation
    earned subsequent to the election.  In addition, in the case of
    any performance-based compensation covering a period of at
    least 12 months, a participant may make an election no later
    than six months before the end of the covered period.

    A plan may allow a participant to elect to delay a scheduled
    distribution from a plan if the new election is made at least 12
    months in advance and delays the distribution at least five
    years.  Within the five years, a premature distribution may
    only be made on account of death, disability or unforeseeable
    emergency.

    A plan may permit the acceleration of a payment in only a few
    circumstances listed below.

  • To pay employment taxes imposed on compensation deferred
    under the plan

  • To comply with a domestic relations order

  • To pay income taxes due upon a vesting event under a plan
    subject to IRC Section 457(f)

  • To comply with a conflict-of-interest divestiture requirement
    (see IRC Section 1043)

  • To reflect inclusion in income under IRC Section 409(a)

  • To terminate a participant’s interest in a plan:

  • Where the payment is not greater than the elective deferral
    limit under IRC Section 402(g)(1)(B) ($15, 5000 in 2008, $16,5000
    in 2009)

  • In the 12 months following a change in control event

  • Where all arrangements of the same type are terminated

  • Upon a corporate dissolution or bankruptcy

  • To end a deferral election following an unforeseen     
    emergency

    A non-qualified deferred compensation plan is retroactively
    taxable to the participant as of the time of the initial deferral.  
    In addition to the normal income tax on the compensation, the
    participant must pay an additional 20-percent tax, as well as
    interest at a rate 1 percent higher than the normal
    underpayment rate.  *For further information, or to contact this
    author, please leave a comment and your e-mail address in
    the forum below.


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    ---------------------------------------------------------------

    Lance Wallach, CLU, ChFC, CIMC, speaks and writes about
    benefit plans, tax reductions strategies, and financial plans. He
    has authored numerous books for the AICPA, Bisk Total tape,
    and others. He can be reached at (516) 938-5007 or
    lawallach@aol.com. For more articles on this or other subjects,
    feel free to visit his website at www.vebaplan.com. Lance
    Wallach, the National Society of Accountants Speaker of the
    Year, speaks and writes extensively about retirement plans,
    Circular 230 problems and tax reduction strategies. He speaks
    at more than 40 conventions annually, writes for over 50
    publications, is quoted regularly in the press, and has written
    numerous best-selling AICPA books, including Avoiding
    Circular 230 Malpractice Traps and Common Abusive Business
    Hot Spots. He does extensive expert witness work and has
    never lost a case.  

    Contact Lance at 516.938.5007 or lawallach@aol.com  

    The information provided herein is not intended as legal,
    accounting, financial or any other type of advice for any specific
    individual or other entity.  You should contact an appropriate
    professional for any such advice.

SMALL BUSINESS TAX NEWS
New Laws for Non-qualified
Deferred Compensation
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