280G Issues

I'm having a lot of trouble with the 280G rules.

I have a Disqualified Person who is 100% vested in separation pay.  If the DP leaves for any reason, she gets a big payment.  She also gets the same big payment (same $ amount) if she is terminated within 6 months of a change in control.  We are going to have a change in control and she is going to be terminated.  I don't know if the separation payment should be included in the parachute payment calculation.

• On one hand, she is already vested in the total amount of the payment and would have received the payment upon termination regardless of the CIC.
• On the other hand, she is being terminated in connection with the CIC, so the payment is contingent on an event related to the CIC.

The question is, does the payment go into the parachute payment calculation?  Since she was already fully vested in the payment, is there some discount on how much is included in the parachute payment calculation.  I know the regulations provide rules for "vested" amounts that are accelerated due to the CIC, but I don't know if that applies here -- and even if it does apply, we have no idea how much the payment was accelerated, since we have no idea when termination would have occurred if not for the CIC (would she have worked 5 more years?  15?).

Unfortunately, it gets more complicated than that, but the above is the "easy" version of the issue.

I would really appreciate any insight (with the recognition that no one is providing legal advice).

Have you looked at Q/A 24(b) and example 2? Might get you close to where you need to be, particularly if the time/amount of the future payment is not reasonably ascertainable. 

Or whether there is an exemption available, including a shareholder vote? If the shareholder vote is available, just list the full account balance and have them approve the payment. A few extra pieces of paper but solves any calculation misstep.