409A Issues In Executive Compensation Contracts And Employment Agreements

409A Basics

Section 409A of the Internal Revenue Code of 1986, as amended (409A), was enacted into law in 2004 to impose statutory requirements on "nonqualified deferred compensation plans, programs or arrangements" (collectively referred to herein as a "plan" or "plans"). In general, 409A requires all nonqualified deferred compensation plans to specify in writing, upon the inception of the plan, the "time" and "form" of payment and, except in limited circumstances, prohibits the acceleration or subsequent deferrals after a "plan" has been established. A violation of these requirements results in all vested (whether or not paid) amounts becoming immediately taxable as compensation income, subject to all applicable income and payroll tax withholding and an additional 20% penalty tax on the compensation income.