On
October 22, 2007, the Internal Revenue Service ("IRS") issued Notice
2007-86, which extends to December 31, 2008 the transition relief under
Internal Revenue Code Section 409A ("Section 409A") that was
scheduled to expire on December 31, 2007. The newly issued guidance revokes and
supersedes the limited expansion of transitional relief recently issued by the
IRS under Notice 2007-78. Notice 2007-86 fully extends operational compliance
to December 31, 2008.
General
Rule. During 2008, taxpayers continue to be required to operate a
nonqualified deferred compensation plan in compliance with the plan's terms, to
the extent consistent with Section 409A and the applicable IRS guidance.
However, full compliance with the final regulations issued earlier this year is
not required until January 1, 2009. To the extent an issue is not addressed in
the IRS guidance, taxpayers must apply a reasonable, good faith interpretation
of Section 409A. Reliance upon the final regulations is treated as applying a
reasonable, good faith interpretation of Section 409A. However, taxpayers will
not be able to demonstrate a reasonable good faith interpretation of Section
409A by relying on the proposed regulations for periods after December 31,
2007.
Amendment
and Operation of Plans Adopted on or Before December 31, 2008. A plan
adopted on or before December 31, 2008 (including plans amended to comply with
the final regulations during 2007) will not be treated as violating Section
409A if the plan is operated through December 31, 2008 in compliance with the
provisions of Section 409A and applicable provisions of Notice 2005-1 and any
other generally applicable guidance published with an effective date prior to
January 1, 2008 (except for reliance on the proposed regulations after December
31, 2007), and the plan is amended on or before December 31, 2008 to conform to
the provisions of section 409A and the final regulations under section 409A.
Change
in Payment Elections. With respect to amounts subject to Section
409A, a plan may provide, or be amended to provide, for new payment elections
on or before December 31, 2008, with respect to both the time and form of
payment. The election or amendment will not be treated as a change in the time
or form of payment or an acceleration of a payment provided that the plan is so
amended and elections are made on or before December 31, 2008. As is presently
the case for elections or changes made in 2007, elections or changes made in
2008 cannot apply to amounts that would otherwise be payable in 2008 and may
not cause an amount to be paid in 2008 that would not otherwise be payable in
2008.
Payments
Linked to Qualified Plans. The ability to continue to have the time and
form of payment under a qualified plan or a broad-based foreign plan dictate
the time and form of payment under a related nonqualified deferred compensation
plan has also been extended through 2008, provided that the determination of
the time and form of the payment is made in accordance with the terms of the nonqualified
deferred compensation plan that governs payment elections, as in effect on
October 3, 2004.
Substitutions
of Non-Discounted Stock Options and Stock Appreciation Rights
("SARs"). It will not be a material modification of
the stock option or SAR to replace a stock option or SAR otherwise providing
for a deferral of compensation under Section 409A with a stock option or SAR
that would not have constituted a deferral of compensation under Section 409A
if it has been granted upon the original date of grant of the replaced stock
option or SAR, provided that the cancellation and reissuance occurs on or
before December 31, 2008. Notice 2007-86 generally extends to December 31, 2008
the ability to cancel a discounted stock option or SAR and substitute a non-discounted
stock option or SAR not subject to Section 409A.
Conclusion. Notice
2007-86 provides employers and service providers with another year to
thoroughly consider how best to restructure and document their deferred
compensation programs to comply with the final Section 409A regulations. This
will allow employers and service providers time to analyze all of their plans
and make informed and reasoned decisions regarding the changes that may be
necessary to bring existing arrangements into compliance with Section 409A.
This extension by the IRS will likely be the final such extension and,
therefore, employers and service providers should be proactive and begin the
Section 409A compliance process as soon as possible. As we have previously
discussed in other Alerts, non-compliance with Section 409A creates the
potential for significant tax liability on behalf of the individual taxpayers
and employer sponsors of plans and/or programs subject to Section 409A.
On
a related note, on October 23, 2007, the IRS also issued Notice 2007-89, which
once again suspends employers' and payers' reporting requirements for calendar
year 2007 with respect to deferrals of compensation within the meaning of
Section 409A.
If
you have a question about this Alert or would like more information, please
contact group chair W. Michael Gradisek, John A. Reader, Jr., Lawrence I.
Davidson, or the attorney in the firm with whom you are regularly in contact.
As
required by United States Treasury Regulations, you should be aware that this
communication is not intended by the sender to be used, and it cannot be used,
for the purpose of avoiding penalties under United States federal tax laws.
This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.
Duane Morris LLP, one of the 100 largest law firms in the world, is a full-service firm of more than 600 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets in the United States and internationally, Duane Morris represents clients across the U.S. and around the world.