NQDC adopted in final 6 months of performance period

[Guest mae.c]

Does anyone have any insight on the following question:

Under Section 409A, where a company initially adopts a deferred compensation plan (never having had a plan in the past), may members of the group of employees designated as eligible elect within 30 days of adoption of the plan to defer portions of performance-based incentive bonuses pursuant to Reg 1.409A-2(a)(7), or would the initial deferral election provision of Reg. 1.409A-2(a)(8) apply, meaning there could be no deferrals if the plan were adopted during the final six months of the performance period?

Thanks in advance!

[XTitan]

Since this is the first year of eligibility, 1.409A-2(a)(7) seems on point:

For compensation that is earned based upon a specified performance period (for example, an annual bonus), where a deferral election is made in the first year of eligibility but after the beginning of the performance period, the election must apply only to the compensation paid for services performed after the election. For this purpose, an election will be deemed to apply to compensation paid for services performed after the election if the election applies to no more than an amount equal to the total amount of the compensation for the performance period multiplied by the ratio of the number of days remaining in the performance period after the election over the total number of days in the performance period.