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EBECatty

409A "Linked" Nonqualified Plans

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I'm generally aware of the IRS position on "linked" nonqualified plans where a formula benefit under one NQDC plan would offset another NQDC plan, i.e., that they generally view any formula under a 409A-covered plan that can offset or change the amount, time, or form of payments under another 409A-covered plan as impermissible.

What about where one plan is (or both plans are) exempt from 409A? 

For example, an employee has a short-term deferral exempt from 409A that provides a lump sum of 10 times his current base salary of $250,000 if he is still working at age 65. The payment is reduced dollar-for-dollar by the amount of any other vested nonqualified plan benefits payable to the employee. Say the employee is age 64 when the employer gives the employee a fully vested 409A-covered plan that provides 10 annual installments of $225,000 each starting at age 65. The employee would receive a payment of $250,000 upon reaching age 65, then $225,000 a year for 10 years.

I don't see this as falling under the IRS's prohibition on "linking" nonqualified deferred compensation plans. For example, Section XI.B of Notice 2010-6, generally addressing the issue, speaks only in terms of a "nonqualified deferred compensation plan" linked to "another" "nonqualified deferred compensation plan." There's only one 409A-covered "nonqualified deferred compensation plan" that is not impacted by another one.

Alternatively, say you have the same lump sum agreement but it's offset by the value of any vested 409A-exempt stock options outstanding at age 65. The options can be exercised for 10 years following termination. In that case, neither one is subject to 409A, but the parties may arguably in a sense "defer" the lump sum by allowing the employer to give the employee options before reaching age 65 that the employee can exercise any time over the 10-year period. 

Apart from the linking, any argument that this is a change to the time/form of payment of the lump-sum benefit? Or an initial deferral of a short-term deferral? I don't see any explicit authority for this, except maybe general anti-abuse. 

Would appreciate any insight.

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