457(f) and Retirement as Substantial Risk of Forfeiture

[Guest awea]

I am trying to determine if the following provision related to retirement is a valid risk of forefeiture under Code Section 83 and therefore 457(f). The plan makes payment within the short-term deferral period and I am aware of the IRS's intentions to publish guidance defining a SOF under 457(f) as it is defined under 409A. Assume the participant is 54 and has no plans to retirement anytime in the near future.

Participants will become vested in contributions credited to their Accounts on the earliest to occur of the following events:

(a) death;

(b) termination of employment due to a Total and Permanent Disability;

© termination of employment in connection with a Retirement (defined as a termination of employment on or after age 65); or

(d) the fifth anniversary of the date the contribution was made to the Account.

If a Participant’s employment terminates for any other reason before one of the above events occurs, any contributions which were not previously vested will be forfeited so that no benefit will be payable under the Plan.

[jpod]

No, unless you make it attainment of age 65 rather than retirement on or after age 65. Or, to put it another way, once the employee attains age 65 the SRF ends whether or not he retires.