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Nonqualified Plan for NHCE's

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Sure, there is always a way to pay anybody money. The issue is whether you can do it in a tax efficient manner. A pension promise to an NHCE generally must be funded under Title I of ERISA (ignoring 415 excess plans). To be funded, it must be exempt from the claims of the employer's creditors. If it is exempt from the claims of creditors, the amount set aside for the employee is taxable under either section 83 or 402(B).

Unfunded, tax-deferred pension promises to lower-paid employees are basically nos-nos under ERISA.

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