Commission Payments -- NQDC?

[HCE]

I'm having trouble determining whether commission payments constitute nonqualified deferred compensation ("NQDC").

Under the arrangement, employees build a book of business.  After they leave employment, they continue to receive commission payments for a set number of years based on the book of business they built.  Is this not NQDC?

From my view, the compensation is earned before employment ends.  A participant in the arrangement has a "legally binding right" to the compensation at the time the employee terminates employment.  It does not cease to be a "legally binding right" at the end of employment, since whether or not they get paid depends on the set terms of the arrangement (rather than discretion of the employer).  One might argue there is a substantial risk of forfeiture, but that seems tenuous here, since most customers will continue receiving services from the employer, so the risk of forfeiture is not substantial.

I know there are special rules for commission payments that allow you to treat the payment as "earned" when it is paid to the company by the customer.  But those special rules specifically apply with respect to when a payment is treated as "earned" for purposes of making deferral elections (not the case here).

So, give the above, aren't the post-termination commission payments NQDC?

[EBECatty]

Try Chief Counsel Advice 200813042, which addresses this issue pretty extensively in the context of post-termination insurance renewal premiums for retired agents:

POSTU-140193-05_WLI02 (irs.gov)

 

[CuseFan]

On 5/5/2023 at 11:21 AM, EBECatty said:

Try Chief Counsel Advice 200813042

So funny - yesterday I saw HCE post basically the same question but in a slightly different context, did a quick Google and found and posted this exact item in response to that question. Great minds, right?