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Bonus Out PS Forfeitures to Terminated Participant


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In a profit-sharing only plan, is anyone aware of a problem with paying a terminated participant an amount equal to any account forfeitures upon termination? For example, a company hires a "turnaround" CEO with all parties planning on, say, a three-year employment period with immediate eligibility in a PS-only plan with a six-year graded vesting schedule. As an incentive, the company offers to pay the employee a bonus upon termination of an amount equal to the unvested portion of the employee's PS account that is forfeited upon termination. 

The payment would be taxable and entirely outside the plan. The forfeitures would stay in the plan and be used according to its terms. There are no deferrals (or elections not to defer) so the contingent benefit rule would not come into play. I don't think the BRF rules would apply as the payment would take place entirely outside the plan. All contributions, vesting schedules, etc. are applied according to the plan's nondiscriminatory terms. 

The bonus payment itself would become nonqualified deferred compensation subject to 409A, but one payment upon termination is straightforward. On a quick pass, the linked plan rules seem manageable.  

Am I missing anything that would make this problematic?

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I think you're OK, and if the deferred bonus does not vest until the end of the 3-year contract and is paid at timely thereafter (within 2 1/2 months or tax year-end), you have a short-term deferral and don't really have to deal with 409A at all.

Kenneth M. Prell, CEBS, ERPA

Vice President, BPAS Actuarial & Pension Services


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