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Long-Term Bonus Plan - 409A Exempt vs. Non-Exempt


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Would appreciate a sanity check here. Employer has a long-term bonus plan. Company and individual performance from, say, 1/1/21 - 12/31/23 determine the amount of bonus paid after 12/31/23. Generally participants must be employed on the last day of the performance period to be eligible. Participants who die, become disabled, retire (at a fixed age/service), or are involuntarily terminated during the performance period will receive pro rata payments at the same time as all other participants. Employer does not calculate the final amounts until after March 15 of the year following the end of the performance period, so all payments are subject to 409A. 

What practical impact does this have if the plan uses the year following the end of the performance period as a fixed payment date (as opposed to trying to pay before 3/15/24)? 

It would not allow payments to be made earlier than, or later than, 2024, which is fine. There are no opportunities to further defer the payment. The substitution rules would apply, which can be managed. The six-month delay would apply, but no payments are triggered by a separation from service, only a fixed date. The plan could be aggregated with other plans for plan termination rules.  

It also seems that these rules would apply to participants terminating prior to 2023, even if the payments were made by 3/15/24 in the ordinary course (e.g., a participant who retired in 2022 would not meet the short-term deferral timeline in any event if payment was 3/15/24). 

None of these strike me as particularly difficult as long as the employer is aware they are constraining themselves in some ways. 

Am I missing something that would make this impractical?

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