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Minding the Compliance Requirements of An NQDC Plan

To maintain their lifestyles in retirement, many top execs would like to set aside more dollars annually than is allowed under a qualified plan, such as a 401(k). One way an employer can help them do so is by setting up a nonqualified deferred compensation (NQDC) plan.

Many benefits

NQDC plans are contracts that defer a certain amount of compensation to a future point in time, such as retirement. They do not have to comply with the nondiscrimination rules or contribution limits that apply to qualified plans.

Because the promised compensation has not been transferred to your executives, it is not yet counted as earned income, and therefore it is not currently taxed. This reduces current taxes and allows the compensation to grow tax-deferred.

There is a catch

Although NQDC plans are not subject to many of the qualified plan requirements, they are subject to Internal Revenue Code Sections 409A and 451, which do not apply to qualified plans.

Section 451 sets the parameters for income taxation of NQDC, and Section 409A imposes strict requirements on the timing and form of NQDC payments and of any subsequent change in their timing or form.

Three points to remember

Here are three specific compliance points to keep in mind:

  1. The timing must be right. Employees must make the initial deferral election before the year they perform the services for which the compensation is earned. So, for instance, an employee who wishes to defer part of their 2019 compensation to 2020 or beyond must have made the election by the end of 2018. There are exceptions for new employees and certain performance-based compensation.
  2. There must be an end point. Benefits must be paid on a permissible payment date specified at the time of the deferral. Common examples include death, disability, separation from service, change in ownership or control of the employer, or unforeseeable emergency.
  3. The money may come later, but probably not sooner. The timing of benefits may subsequently be delayed subject to specific rules within Section 409A, but it generally cannot be accelerated except in special circumstances — such as plan termination or compliance with legal requirements. Elections to change the timing or form of a payment must be made at least 12 months in advance of a scheduled payment, and the election may be effective no earlier than 12 months after it is made.

Also, any postponement must be at least five years. Distributions because of death, disability, or unforeseeable emergency may be postponed for shorter periods.

An effective way

Penalties for noncompliance with NQDC plan rules are harsh for the recipient. They may include taxation of any vested benefits at the time of the deferral plus a 20 percent excise tax and a ‘bump-up’ in the tax underpayment interest rate.

When the rules are followed, however, these plans allow executives to amass greater savings for later in life, while their employers continue to benefit from their leadership skills. Our firm can provide more information and help you design and implement the right NQDC plan.

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