409A

[Guest lvegas]

The board of a plan sponsor of a non-elective 457(f) top-hat which provides benefits lost under a qualified plan (due to compensation limits) wishes to push out the 457(f) vesting date (assume that this would be legit for the moment) -- and the employee has no discretion or involvement in the decision. Would doing so be considered a "deferral election" that is subject to the 1 year in advance/5 years down the line rule under 409A even though the employee is not making any election?

[jpod]

You may not need an answer to your question. Look at the transition rule opportunities available during 2007 under Notice 2006-79.

[namealreadyinuse]

Outside of the transition rule, I believe the answer is yes if it is ok under 457(f) (which it should be). The final regs put the distribution election provisions for employers in nonelective plans on par with those for the participants in elective plans. 457(f)s have to comply with 457(f) and 409A.