Trust Requirement for 457(b) - Applicable to 457(f) as well?

[Christine Roberts]

Does the requirement that 457(B) plans of governmental entities be held in a trust or its equivalent prevent governmental entities from establshing "ineligible" 457(f) plans holding assets in a rabbi trust only?

My thinking is the answer is "no," but seeking confirmation

[Guest Brent Rowell]

I agree with you.

Sorry moral support only

I am not an authority:)

[Carol V. Calhoun]

I agree with you. The requirement of a trust is found in 457(g), which applies only to 457(B) plans, and therefore would not apply to a 457(f) plan.

At the same time, some employers may want to set up trusts under 457(f) plans. (Or perhaps it would be considered a 402(B) plan if it had a trust.) The thinking is that if you have to impose forfeitability requirements to avoid taxation anyway, why not give the participant the additional security of a funded plan?

[Kirk Maldonado]

Carol:

Would funding the Section 457(f) plan result in the participant being taxed on those contributions under the economic benefit doctrine?

[Carol V. Calhoun]

I don't think so, so long as the benefit remains forfeitable (as it has to be for a 457(f) plan). Under section 402(B)(1),

Contributions to an employees' trust made by an employer during a taxable year of the employer which ends with or within a taxable year of the trust for which the trust is not exempt from tax under section 501(a) shall be included in the gross income of the employee in accordance with section 83 (relating to property transferred in connection with performance of services), except that the value of the employee's interest in the trust shall be substituted for the fair market value of the property for purposes of applying such  section.

Under section 83,

If, in connection with the performance of services, property is transferred to any person other than the person for whom such services are performed, the excess of--

[*]the fair market value of such property (determined without regard to any restriction other than a restriction which by its terms will never lapse) at the first time the rights of the person having the beneficial interest in such property are transferable or are not subject to a substantial risk of forfeiture, whichever occurs earlier, over

[*] the amount (if any) paid for such property[/list=1]shall be  included in the gross income of the person who performed such  services in the first taxable year in which the rights of the person having the beneficial interest in such property are transferable or are not subject to a substantial risk of forfeiture, whichever is applicable. The preceding sentence shall not apply if such person sells or otherwise disposes of such property in an arm's length transaction before his rights in such property become transferable or not subject to a substantial risk of forfeiture.

Thus, the participant should not be taxed on these accruals until the rights in the trust become transferable or not subject to a substantial risk of forfeiture--which is exactly when rights in a 457(f) plan would become taxable.

[Kirk Maldonado]

Carol:

I concur in your reasoning.