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Employer has an NQDC plan in the form of "appreciation units." Executive wants any payments under the plan to be paid to a trust, of which he and his wife are the trustees, instead of to him directly. My understanding is this does not avoid taxation for him, but he wants the trust to hold all of his assets. Plan currently does not permit the assignment of rights under the plan. My question is this: Does amending the plan to allow a participant to assign his/her right to payment to a trust present problems under 409A? Any right to payment is still subject to forfeiture. Any thoughts on this would be much appreciated.
