CMC Posted July 19, 2020 Posted July 19, 2020 When participants in a deferred comp plan elect to receive installments over 5, 10, 15 or 20 years, they have been permitted to choose whether those installments will be calculated using a "Level Payment Method" or "Percentage of Retirement Account Method." Where a participant wants to change from one calculation method to the other without changing either the commencement date of the installments or the number of years over which the installments will be paid, does anyone think 409A's usual rules about changes in time and form of payment -- including the 5-year delay -- would need to be observed?
XTitan Posted July 20, 2020 Posted July 20, 2020 I would say you do need to observe the 5 year delay, since at the time of deferral you would not have a single objective, non-discretionary formula to calculate payments. - There are two types of people in the world: those who can extrapolate from incomplete data sets...
Luke Bailey Posted July 20, 2020 Posted July 20, 2020 One of these (most likely the percentage method, unless the percentages increase over time) is going to result in an acceleration, the other in a deferral. The former is generally a violation of 409A, the latter typically is OK if, as Xtitan points out, you comply with the 5-year rule. The analysis will also be affected by whether the plan says that the entire installment scheme is one payment, or each installment is a payment. Luke Bailey Senior Counsel Clark Hill PLC 214-651-4572 (O) | LBailey@clarkhill.com 2600 Dallas Parkway Suite 600 Frisco, TX 75034
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