Nonqualified Deferred Compensation Plans

By Mark P. Altieri

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Types of DCAs

There are two broad categories of DCAs: elective and nonelective. In an electve DCA an employee chooses to receive less current salary and bonus compensation than she would otherwise receive and defers receipt of the reduced amount to a future tax year. It is important that the election to defer income be made prior to the period that the income is actually earned. This has long been the ruling position of the IRS (see Revenue Procedure 71-19) and is current law as established by IRC section 409A (discussed below). The Department of Labor has ruled (Advisory Opinion Letter 90-14A) that elective DCAs are not subject to Labor Regulations Section 2510.3-102, which requires participant contributions to an ERISA pension or welfare plan to be held under a formal trust arrangement.

Because the employee is initiating the deferral of compensation that he would otherwise earn and receive, it would be inappropriate to impose a substantial risk of forfeiture (SROF) upon the DCA benefits. An SROF is a vesting mechanism requiring substantial future services before DCA benefits become nonforfeitable. Therefore, an elective DCA should be fully vested and payable in the event of an unexpected cessation of employment. Revenue Ruling 60-31 (as modified by Revenue Ruling 70-435, 1970-2 CB 100) specifically allows income tax deferral irrespective of an SROF.

Large employers often defer key employees’ compensation as a fringe benefit. It does not reduce current compensation; instead, this “nonelective” DCA is typically a post-termination salary continuation plan. Such nonelective DCAs’ purpose is to retain key employees; they usually incorporate an SROF [see Treasury Regulations section 1.83-3(c)] that requires a number of years of service before the DCA benefits become nonforfeitable.

ERISA Coverage and Non–Tax Compliance Issues

The Employee Retirement Income Security Act of 1974 (ERISA), as amended, covers all employee pension plans sponsored by an employer engaged in interstate commerce. The definition of an employee pension benefit plan in ERISA section 3(2) is extremely broad and encompasses any benefit oriented toward retirement or termination of employment. Thus, ERISA is generally applicable to any retirement plan, including a DCA. Compliance with the reporting, disclosure, participation, vesting, benefit accrual, funding, and fiduciary responsibility requirements of Title I of ERISA is extremely burdensome, time-consuming, and costly. Plans maintained by state, government, and church employers are exempt from ERISA requirements. Other employers can provide the benefits of a DCA while avoiding ERISA requirements through an “excess benefit plan” or “top-hat plan exemptions.”

Excess benefit plan. ERISA section 3(36) defines an excess benefit plan as a DCA maintained by an employer to provide benefits for certain employees in excess of the IRC section 415 limitations for qualified plans. Irrespective of whether the plan is funded or nonfunded, ERISA’s participation and vesting standards are not applicable. If the plan is funded, however, many other Title I requirements are applicable. A supplemental DCA that is structured (as is commonly the case) to make up for a limitation on qualified plan benefits due to the constraints of both section 415 and 401(a)(17) may not qualify as an ERISA excess benefit plan.

Top-hat plans. The “top-hat” plan is the most common approach for an ERISA exemption. A DCA that is “un-funded and is maintained by an employer primarily … for a select group of management or highly compensated employees” is exempted from most Title I requirements. The Department of Labor takes the position (Advisory Opinion Letter 90-14A) that the word “primarily” modifies the type of benefit being provided under the plan and not the participants, meaning that a top-hat plan may not cover any employees other than management or highly compensated employees.

A top-hat plan is, however, subject to Title I’s reporting and disclosure provisions. Labor Regulations section 2520.104-23(a) allows for an abbreviated compliance procedure. Failure to take advantage of this procedure will require an employer to file Form 5500, Annual Return/Report of Employee Benefit Plan, with requisite penalties for noncompliance. A copy of the DCA does not need to be included with the DOL filing unless specifically requested.

An unfunded top-hat plan for ERISA purposes generally conforms to an unfunded plan for tax purposes, as discussed below. Determining what constitutes a “select group of management or highly compensated employees” is more problematic. The DOL has formulated no definitive standard, but has indicated that the requisite top-hat group should be limited to individuals who, by virtue of their position or compensation level, have the ability to affect or substantially influence the design and operation of the DCA. Some tax advisors and courts have equated highly compensated employees for ERISA purposes with highly compensated employees under the IRC section 414(q) definition, even though the preamble to the section 414(q) regulation states that the definition should not be extrapolated for ERISA purposes [Plazzo v. Nationwide Insurance Company, 697 F. Supp. 1437 (N.D. Ohio 1988); rev'd on other issue, 892 F.2d 79 (6th Cir. 1989)]. Certain courts [see Carrabba v. Randalls Food Markets, 252 F.3d 721 (5th Cir. 2001)] have been more strict in factually discerning the DOL standard. Another recent decision [Demery v. Extebank Deferred Compensation Plan, 216 F.3d 282 (2nd Cir. 2000)] allowed the top-hat group to drift into mid-level management.

Even though the SEC has not formally clarified when DCAs are subject to security registration requirements, as long as the plan is a true top-hat plan, concerns about registration of the plan as a security should be mitigated under the private sale exemption. The SEC has issued a number of “no-action” letters with regard to DCAs.

Application of Federal Tax Law to DCAs

Actual receipt and cash equivalent doctrines. IRC sections 61 and 451 require a cash-method taxpayer to include all forms of compensation in gross income in the taxable year of receipt. In a properly structured DCA, however, all that the employee receives at inception is the employer’s unsecured contractual promise to pay DCA benefits in the future. If an employee could readily assign her contractual rights under the DCA, then such rights could become a cash equivalent currently includable in taxable income. Revenue Procedure 2003-3 requires for ruling purposes that the DCA provide that a participant’s rights to benefits cannot be anticipated, alienated, or otherwise encumbered. Furthermore, the Revenue Procedure calls for the terms of the plan to state that the parties intend for the DCA to be unfunded for tax and ERISA purposes.

Constructive receipt. The constructive receipt doctrine requires a taxpayer to currently include in gross income compensation that the taxpayer does not actually possess but that was under his dominion and control and that could have been readily obtained without incurring any substantial penalty or restriction [see Regulation section 1.451-2(a)].

The IRS had often but unsuccessfully attempted to invoke the constructive receipt doctrine in the context of a DCA. In Revenue Ruling 60-31, the IRS finally conceded that “a mere promise to pay [a DCA benefit], not represented by notes or secured in any way, is not regarded as a receipt of income within the intendment of the cash receipts and disbursement method.” A DCA payable only out of the employer’s general assets will not result in a taxable event to the employee until payment is received.

The key to avoiding application of the constructive receipt doctrine is to contractually enter into the DCA before the deferred income is earned. As noted above, this requirement has been codified in the new IRC section 409A (discussed below).

The IRS will not issue advance rulings on the tax consequences of a controlling shareholder/employee participating in a DCA. When the controlling shareholder’s participation is as an employee (rather than a shareholder), the courts, with acknowledgement from the IRS, have respected the DCA arrangement.

The economic benefit doctrine. The economic benefit doctrine would currently tax the value of property transferred by an employer to fund a DCA to the extent that the property transferred was legally set aside from the claims of creditors of the employer (e.g., under a secular trust or escrow arrangement) for the benefit of the employee under the DCA. This would be true even though the benefited employee has no current actual or constructive access to the money or property funding the trust.

A number of “informal funding” techniques have developed that do not invoke the economic benefit doctrine. The employer’s obligation may be financed through life insurance or annuity contracts. The policy must be the sole property of the employer and constitute a general asset subject to creditor claims.

Another well-known type of informal funding device is a “rabbi trust,” named after the case in Private Letter Ruling 8113017. A rabbi trust is established to provide an employee with some additional security that benefits will continue without accelerating taxation in the event of a hostile change in management. An employer makes contributions to an irrevocable trust to provide for deferred compensation payments. Although the employer’s contributions to the trust are generally irrevocable, the assets placed in the trust must remain subject to the claims of the employer’s general creditors. If the employee has no ownership rights in the trust assets, the same favorable tax treatment outlined above results. Additionally, the DOL will not consider this type of plan to be funded for ERISA purposes if contributions to the trust by the employer are not currently taxable to the employee for income tax purposes. The IRS has provided a model rabbi trust form to taxpayers (see Revenue Procedure 92-64, 1992-2 C.B. 422). Case law has reiterated and verified these government-established parameters. As noted below, off-shore rabbi trusts are not afforded this protection.

An employee may designate a nonbinding preference regarding the investment of employer assets used to finance a DCA, but the employee remains an unsecured creditor of the employer (PLR 8648011). The unsecured contractual guarantee of a third party has been found not to result in a currently taxable economic benefit. Examples of this, found in PLRs 9040050 and 8741078, Berry v. United States, 760 F. 2d 85 (4th Cir. 1985), would be a guarantee by a parent of a subsidiary’s deferred compensation promise, or by the team owner of the employer-team’s promise to pay a ballplayer’s deferred compensation.

Employer’s deduction from the DCA. The employer’s ability to derive a tax deduction for payments of DCA benefits often makes the DCA palatable to the employer. Under IRC section 404(a)(5), the employer’s deduction is permitted (subject, of course, to IRC section 162 reasonable compensation limitations) in the taxable year in which the employee (or independent contractor) recognizes income from the DCA.

Formally funded DCAs. A funded DCA is one in which an employer sets aside funds (in a nonqualified trust, a custodial account, or an escrow arrangement) to meet future deferred compensation obligations. Either the funds are beyond the reach of the employer’s general creditors, or the employee has an interest in the funds which is prior to the employer’s general creditors.

This arrangement intentionally invokes the economic benefit doctrine detailed above. The employee recognizes compensation income (in an amount equal to the value of the contribution) in the first taxable year in which her interest in the fund becomes substantially vested within the meaning of IRC section 83—that is, not subject to an SROF—or transferable free of such risk. As in the case of an unfunded DCA, the employer’s deduction may be taken in the year in which the employee recognizes the income. Because the employee’s taxable event is accelerated, so is the timing of the employer’s deduction.

Funded DCAs are often referred to as “secular” trust arrangements. In some cases, the employee is willing to incur current taxation in order to obtain the security that the secular trust arrangement provides. Additionally, an employer may be more willing to set up this type of funded deferred compensation arrangement because its deduction for contributions to the plan are accelerated. However, severe ERISA problems may result. A DCA (other than a true excess benefit plan) formally funded by a trust or other funding vehicle must comply with minimum coverage, participation, and other burdensome Title I ERISA requirements. These ERISA compliance requirements make the secular trust arrangement less appealing to employers.

Social Security Taxation of DCAs

Generally, nonqualified deferred compensation will be subject to FICA and FUTA at the later of when the related services are performed or when there is no SROF of the right to receive the compensation [IRC section 3121(v)(2)(A)]. SROF has the same meaning as under IRC section 83. The SROF on elective deferrals would typically be nonexistent, while the SROF would be typical and long-term for nonelective DCAs.

Thus, if the employee’s other wages are already at or exceed the maximum taxable wage base, generally no substantial additional FICA and FUTA taxation will result from the DCA. However, the 2.9% combined employer and employee Medicare portion (which has no maximum base) will result in additional Medicare taxation, as the vested deferred compensation benefit falls into the wage base. Once deferred compensation has been taken into account as wages for FICA and FUTA purposes, neither it nor any income attributable to it will thereafter be treated as wages [see IRC section 3121(v)(2)(B)].

Social Security taxation of DCAs has been refined and delineated by Treasury Regulations sections 31.3121(v)(2)-1 through 31.3121(v)(2)-2(a), which address the Social Security taxation of DCAs. According to the preamble, the regulations are designed to be workable, to minimize complexity, and to provide appropriate flexibility in that they permit the use of any reasonable assumptions; establish a reasonably ascertainable rule; provide flexibility with respect to withholding; and provide reasonable, good faith, transitional relief.

Maintenance of DCAs by S Corporations and Partnerships

There is little distinction between an S corporation and a partnership with regard to nonqualified deferred compensation. The logic of DCAs discussed above applies to employees that are not shareholders or partners of such entities. When a partner or a shareholder attempts to defer compensation (e.g., guaranteed payments, wages), this logic often breaks down because the end result increases residual net operating income, which is passed through to the owners on Schedule K-1.

Additionally, if some, but not all, of the owners participate in the DCA, the current-year Schedule K-1 taxable event will be allocated according to ownership (not DCA participation), which would ultimately reverse out in the year of payment of the deferred compensation when more income would be taxed to the DCA beneficiary with a corresponding deduction allocable to the other owners.

DCAs Maintained by Tax-Exempt Employers

Eligible plans. IRC section 457(b) provides that DCAs of tax-exempt employers are generally subject to the rules applicable to similar state and local governmental plans under IRC section 457. As in other types of private employer DCAs, however, the employee’s interest in the deferred compensation benefits must be unsecured. The employee has only the employer’s unsecured contractual promise to pay.

The annual tax-deferred amount may not exceed the lesser of 100% of includible compensation [participant compensation as defined in IRC section 415(c)(3)] or the “applicable dollar limit,” which is $14,000 in 2005 and $15,000 in 2006. Cost of living adjustments will be made in $500 increments thereafter.

An IRC section 457(b) plan maintained by a tax-exempt employer may also provide for catch-up contributions in one or more of the participating employee’s last three taxable years before attaining normal retirement age under the plan. The catch-up rules additionally available to section 457(b) plans maintained by governmental employers are not available for a tax-exempt employer plan. In addition, the contribution limits no longer need to be coordinated with the section 402(g) limits on elective deferrals under section 401(k) and 403(b) plans. Thus, employees may contribute up to a combined $28,000 to both plans in 2005.

The IRC section 457(b) plan must meet the distribution requirements of a qualified plan under IRC section 401(a)(9) and additionally must meet other unique requirements under section 457.

Ineligible plans. If the tax-exempt employer and participating employee desire a deferral of income that exceeds the maximums, the parties could structure the excess deferrals as an ineligible IRC section 457 plan under section 457(f). Amounts deferred each year will be immediately taxable to the employer to the extent that such amounts are not subject to an SROF. The SROF for section 457 purposes has the same meaning as under IRC section 83.

Treasury Regulations section 1.83-3(c) gives examples of SROF situations in a postretirement setting. For example, a covenant not to compete will ordinarily not be considered to result in an SROF unless the particular facts and circumstances indicate that it will be substantively meaningful. Additionally, payment of the deferred compensation being contingent upon a retiring employee’s rendering consulting services upon request of the former employer does not constitute the creation of an SROF unless the employee is in fact expected to perform substantial postretirement consulting services. Other authorities (Revenue Ruling 75-448, 1975-2 C.B. 55; PLR 9010080 and 9030025) help isolate fact situations that create an SROF. The clearest example of an SROF is the loss of all benefits upon premature termination of employment for reasons other than death or permanent disability. The fact that benefits are lost if the employee commits a crime does not create an SROF [see Burnetta v. Comm., 68 T.C. 387 (1977)].

IRC section 457(e)(11) specifically excludes from the auspices of section 457(f) “bona fide” severance pay, disability pay, and death benefit plans not constituting disguised deferred compensation. Certain financial advisors have focused on the severance pay plan exception to circumvent section 457. Labor Regulations section 2510.3-2(b) indicates that a postemployment payout of no more than 200% of the employee’s pretermination annualized compensation that is fully paid out within 24 months after the employee’s termination of service generally constitutes severance pay for DOL purposes. The IRS differentiates between a severance pay plan under the above DOL definition and a plan of deferred compensation.

If a tax-exempt entity has for-profit affiliates, and an employee for whom a DCA is desired renders meaningful services to the for-profit affiliate, the benefit may legitimately be routed through the taxable employer if it is properly documented.

Section 457 and ERISA. Section 457 plans maintained by governmental employers are exempt from ERISA compliance. Section 457 plans maintained by a private tax-exempt employer must seek exemption from ERISA, as would a taxable private employer–maintained DCA. The top-hat exemption discussed above is typically relied upon.

Church-Maintained Pension Plans and Tax-Sheltered Annuity Plans

Even though church-maintained pension plans and tax-sheltered annuity plans constitute tax-qualified plans from the perspective of the plan participant, in deference to religious freedom from government regulation, such plans are relatively free of the nondiscrimination, vesting, reporting, and disclosure requirements imposed by the IRC and ERISA. Churches and church-affiliated organizations can structure an ideal tax-favored retirement benefit, yet implement it on a relatively selective basis.

Pension plans. Church-maintained pension plans are pension, profit-sharing, and other qualified retirement plans maintained and sponsored by an appropriate “church.” If the sponsor of the pension plan meets the church definition under IRC section 414(e) and the identical church definition found at section 3(33) of ERISA, the plan is exempt from all IRC and ERISA tax and nontax requirements. Pre-ERISA law, however, remains applicable. The pool of participants and benefits provided are determined under the less arduous pre-ERISA rules.

Any church (or convention or association of churches) exempt from tax under IRC section 501 may sponsor and maintain a church pension plan. Additionally, an incorporated or unincorporated church pension board controlled by (through its governing board) or associated with (sharing common religious bonds and convictions) a church may sponsor and maintain a church pension plan.

Ministers and employees of the sponsoring church may participate. Employees of tax-exempt incorporated or unincorporated organizations controlled by or associated with (under the same standard mentioned above) a sponsoring church may participate also. For example, employees of a tax-exempt hospital controlled by or associated with a church may not directly establish an IRC section 414(e) plan, but may participate in one sponsored by the affiliated church.

Section 403(b) tax-sheltered annuity plans. IRC section 403(b) tax-sheltered annuities (TSA) may be purchased by IRC section 501(c)(3) employers or public school employers for the benefit of their employees. Annuities sponsored by churches are not subject to participation and nondiscrimination requirements generally applicable to non-church section 403(b) annuities and qualified retirement plans.
A “church,” for purposes of exemption from the IRC section 403(b) nondiscrimination requirements, is defined as an entity described in section 3121(w)(3). This definition is different from the church definition under IRC section 414(e) and ERISA section 3(33) noted above.

Any tax-exempt church (or convention or association of churches), or an elementary or secondary school controlled, operated, or principally supported by a church, is exempt from the TSA nondiscrimination requirements. Additionally, a tax-exempt organization controlled by a church is exempt, unless it normally receives more than 25% of its support from governmental sources or receipts from the public for performance of services or furnishing of its facilities [IRC section 3121(w)(3)]. Congress intentionally meant to narrow this church definition in order to exclude many church-affiliated organizations that, as part of their normal tax-exempt function, sell goods or services to the public, such as hospitals and colleges.

Only employees of a proper sponsoring entity described above may participate in an exempt church TSA plan. Thus, a church-affiliated hospital’s employees may participate in an IRC section 414(e) pension plan sponsored and maintained by the church, but may not participate in a TSA arrangement exempt from the section 403(b)(12) nondiscrimination requirements. In addition, a proper sponsor of an exempt TSA under section 3121(w)(3), if it does not qualify as a church under the ERISA 3(33) definition [such as an elementary or secondary school or a nonchurch section 3121(w)(3)(B) church affiliate], may be exempt from the section 403(b) nondiscrimination rules without being exempt from ERISA nontax requirements. This is a very complex area, due to the different definitions of a church outlined above.

Nonqualified Deferred Compensation Rules

Overview. Section 885 of the American Jobs Creation Act of 2004 added IRC section 409A. The new rules are generally applicable to compensation deferred under a DCA after December 31, 2004. These new rules generally do not apply to amounts deferred under a DCA before January 1, 2005, providing that the plan has not been materially modified after October 3, 2004. IRS Notice 2005-1 (issued on December 20, 2004) is the first of a series of IRS notices that will provide additional guidance as to IRC section 409A.

A DCA under section 409A means any plan that provides for deferral of compensation except a qualified employer retirement plan (e.g., a qualified pension, profit-sharing, section 401(k) plan, section 403(b) tax-deferred annuity and a section 457(b) eligible plan for state, government, or tax-exempt employees) or a bona fide vacation, sick leave, disability pay, or death benefit plan. Certain equity incentive plans, such as stock appreciation rights or nonstatutory (nonqualified) stock options, could be DCAs if the exercise or measuring price is less than the fair market value of the underlying stock on the date of grant.

The new law under section 409A imposes a significant tax acceleration and penalty to the extent that the DCA experiences a “plan failure” and the plan benefits to be paid in the future are vested (not subject to an SROF) in that year. Not only will all deferred compensation (plus any earnings attributable to it) be accelerated into income, but a 20% penalty tax and interest will be imposed that year.

Early distribution. Plan failures under the new rules can take a variety of forms. The first would be on an improper early distribution under the DCA. An improper early distribution would occur if the plan paid benefits prior to 1) the date of the participating employee's separation from service, or before that participant became disabled or died; 2) the time initially specified in the plan for payout; 3) the time of a change in the ownership or effective control of the employer, (or in the ownership of a substantial portion of the assets of the employer); or 4) the occurrence of an unforeseen emergency. An unforeseen emergency is a severe financial hardship to the participating employee resulting from an illness or accident to the participant, the participant’s spouse, or a dependent of the participant not compensated or reimbursed through insurance or otherwise. An unforeseen emergency also includes a loss of the participant’s property due to casualty or a similar extraordinary and unforeseeable circumstance.

Subsequent deferral. A plan failure also includes an election to again defer payments due to be made under the terms of the DCA. The plan may permit subsequent elections to delay or change the form of payments if the new election cannot take effect until at least 12 months after it is made. Furthermore, an election to further defer a distribution due to be made after the participant’s separation from service, upon a predetermined date or schedule, or upon a change in ownership of the employer, must defer the delayed payment for at least an additional 5 years.

Initial deferral election. Another major category of plan failure relates to the initial deferral election. Section 409A codifies the IRS’s prior position in Revenue Procedure 71-19 by requiring that a participant's election for deferral is effective only if it is made before the tax year in which the deferred compensation will be earned. If the deferred compensation is based on performance criteria or services performed over a period of at least 12 months, the election must be made no later than 6 months before the end of the measurement period. With regard to a new participant (for example, a new officer hired during the plan year), the election must be made within 30 days after the date that new participant becomes eligible to participate in the DCA.

Funding arrangements. As discussed above, “formally” funding a nonqualified deferred compensation obligation has always accelerated the taxable event to the participating employee. To the extent that the participant has a vested, non-forfeitable interest in any trusteed or segregated money to be used to satisfy deferred compensation payments, taxation on the deferred compensation is accelerated.

As was also detailed above, an important and frequently used device to somewhat enhance the likelihood that deferred compensation will be paid without accelerating the taxable event is through “informal” funding of the obligation in a rabbi trust. In a rabbi trust, the employer irrevocably contributes money to the trust to satisfy the deferred compensation obligations. Yet that wealth remains subject to the employer’s general and secured creditors in the event of legal insolvency or bankruptcy. Because of this contingency in a rabbi trust, the IRS has long acknowledged that employee taxation is not accelerated.

The new law does not change this result, except in the rarest situations. Under the new rules, employee taxation through the use of a rabbi trust is accelerated only if the trust is an off-shore trust (thus providing a practical impediment to employer creditors reaching the trust assets) or if it is a “springing” arrangement under which the rabbi trust would be funded only upon a negative change in the employer’s financial health (but short of legal insolvency or bankruptcy).

Significance. More sophisticated pre-2005 DCAs (those allowing manipulation of the timing of benefit payments) require immediate attention under the new law. IRS Notice 2005-1 provides very helpful elaboration and critical transition rules on when necessary amendments need be made. For many, if not most, DCAs maintained by privately-held companies, the new rules do not cause problems nor require old plans to be amended, because the terms of existing plans typically follow the requirements laid out under the new rules—that is, payments under the plans will not occur until separation from service, death, or disability, and there is no mechanism under the plans to either accelerate or further defer the payment of the scheduled deferred compensation. Nevertheless, individuals with DCAs should consider amending existing arrangements because the new rules do provide for flexibility that may not have been present under an unamended plan. For example, the ability to accelerate benefits in the event of an unforeseen emergency might be a welcome addition to the plan from the prospective of the participating employee. Both employer and participating employees in DCAs should be aware of the new rules and, if an occurrence contemplated under the new rules materializes, a previously unamended DCA should be changed to ensure compliance with the new rules.

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