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Correction of 409A Failure in Year of Vesting Does Not Work: Time to Consider IRS Correction Programs
Chiesa Shahinian & Giantomasi PCLink to more items from this source
[Guidance Overview]
May 18, 2015
"If deferred compensation that violates Section 409A vests in 2015 but the vesting date has not occurred ... the IRS correction program immediately should be considered -- otherwise, there is a substantial risk that the IRS would consider the 'fix' to be invalid. Immediate action is particularly important for severance payments scheduled to be made pursuant to the terms of an existing employment agreement, where the terms of such agreement violate Section 409A.... For 2016, reviewing documents ... now for Section 409A compliance is imperative -- it may be possible to correct certain Section 409A violations in 2015, without going through the applicable IRS correction program, and avoid the adverse tax consequences altogether."

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