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EBECatty

409A / 457(f) - Voluntary Termination After Change in Control

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In what would otherwise be a clear short-term deferral plan under 409A and 457(f), is there any exception from 409A and 457(f) with a vesting/payment trigger based on a voluntary termination (for any reason, not just good reason) at any time within one year following a change in control?

The identical form (one lump sum within 30 days) and amount (fixed dollar amount) of payment is available under several other situations (employment until stated date; death; disability; good reason termination; involuntary termination without cause).

Unless I'm missing something, the right to payment is no longer subject to a SROF upon a change in control, even if the employee remains employed. The one-year timeframe rules out a short-term deferral. 

The only thing I can think of is some type of separation pay window program, but I'm not sure it would meet the requirements where the same payment is available in several other circumstances (and, for 409A, exceeds 2x base pay/401(a)(17)). 

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Agreed, but am more concerned about the 457(f) impact on what seems to be a vesting event followed by a walk right. The concept was presented to me as still intending to defer tax until payment under (or outside of, to be more precise) 457(f). 

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I see. Well, without having seen the documents and based solely on your description, it would seem like it would be vested on the date of the C-in-C unless there is some risk of forfeiture that persists after that event.

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