Internal Revenue Code Section 409A Special Considerations: Unique Challenges Facing Tax-Exempt Organizations under the New Deferred Compensation Rules

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1 Internal Revenue Code Section 409A Special Considerations: Unique Challenges Facing Tax-Exempt Organizations under the New Deferred Compensation Rules Part II, Bulletin 3 Introduction Starting in 2005, new deferred compensation income tax rules place a regulatory burden on all types of business and civic organizations and on the individuals who perform services for them. The United States Treasury Department has now published proposed regulations that interpret these new rules (the Section 409A rules, named for the tax code section where they are located). The Section 409A rules apply with equal force to all types of organizations, but appear to create more practical problems for certain types of businesses and organizations (and their workers). This particular bulletin profiles taxexempt organizations and the special challenges that the Section 409A rules present for them and those who work for such organizations. Note: While governmental entities struggle with many of the same challenges posed by the Section 409A rules that non-governmental tax-exempt organizations face, governmental entities are subject to other, fundamentally different regulations due to the unique Constitutional relationship that exists between the federal government and the several states (and their political subdivisions). As such, the challenges facing governmental entities are not addressed in this Alert. Overview of the New Deferred Compensation Income Tax Rules Subject to certain limited exceptions, 1 the new Section 409A rules apply to all compensation deferred from one calendar year at least to the next, if it is first earned or becomes 1 Certain arrangements are not subject to the new rules. For example, amounts deferred under so-called taxqualified pension, profit-sharing and annuity plans, including 401(k) plans and 403(b) annuities, are exempt. Also exempt are short-term deferrals (paid within 2½ months after the worker s or the employer s year ends); death benefits; tax-free fringe benefits; and severance benefits (generally paid within a twocalendar-year period and not collectively exceeding the lesser of two times the worker s taxable compensation or $420,000 (with the dollar figure indexed for cost of living)). Our Executive Compensation Team Baker & Hostetler utilizes a coordinated, multioffice, collaborative approach to enable executives and organizations to focus on the strategic value and taxeffectiveness of compensatory arrangements. Our attorneys have significant experience in all aspects of tax law, employee benefits law, employment law, corporate fiduciary and securities law, intellectual property law, creditors rights, domestic relations law, and general business law. We use this experience to fashion well-conceived and tax-effective solutions to challenging compensation and compensation-related projects and complicated stakeholder relationships. The Section 409A rules also do not apply to compensatory property transfers and certain related arrangements that are not viewed as involving an actual deferral of compensation. Accordingly, transferring property to a worker, such as stock (i.e., restricted stock), is not subject to the new rules. Likewise, stock options and stock appreciation rights (SARs) are not required to comply with the Section 409A rules, so long as the options or SARs do not involve a discount or contain a deferral feature and satisfy a number of other rules relating to valuation and type of stock involved. BAKER&HOSTETLER LLP November 2005

2 B AKER & HOSTETLER LLP non-forfeitable on or after January 1, The new rules generally require those organizations that receive personal services from a cash-basis taxpayer (a worker for purposes of this discussion) to 1. document, in advance of the services, any arrangement used to defer receipt of any of the compensation earned by the worker, and follow strict rules when making any election to further defer that compensation (the deferral rules); 2. document, in advance, when such deferred compensation can be paid, and follow strict rules that limit the circumstances under which the worker can be paid such deferred compensation (the payment rules); and 3. limit the types of funding arrangement(s) that can be used to make payment more certain (the funding rules). Failure to comply with the Section 409A rules causes a 20% tax penalty, and potentially substantial interest penalties (for failure to timely pay related income taxes), to be imposed on the workers who participate in the noncomplying arrangement (the penalty provisions). For a general discussion of the Section 409A rules, readers can review the firm s Part I series on this topic; Part I is available in hard-copy or on line at Special Considerations Applicable to Tax-Exempt Organizations Tax-exempt organizations ( tax-exempts ) consist of a broad range of diverse organizations, such as most hospitals, charitable organizations, private foundations, trade associations, rural cooperatives, and religious institutions. All face similar challenges when compensating their workers, primarily due to special tax rules that apply to compensation arrangements of tax-exempts. These special rules exist because, unlike taxable employers, tax-exempts are not concerned with the timing or amount of any tax deduction they may take for the compensation. Thus, the tax-driven tension that circumscribes arrangements taxable employers make with their executives does not exist for tax-exempts. As a result, the tax law currently imposes penalties for excessive compensation arrangements and dollar limits on certain types of deferred compensation of tax-exempts. Similar penalties and restrictions do not generally apply to taxable employers. Now, tax-exempts have one more constraint on their ability to compensate their workers in the Section 409A rules. The interplay of the Section 409A rules with the existing restrictions on deferred compensation applicable to taxexempts creates a unique challenge for tax-exempts sponsoring deferred compensation arrangements and, in many instances, will require a complete overhaul of the design and structure of their plans. Increased Government Scrutiny Earlier this year, the Internal Revenue Service ( IRS ) commenced an audit program targeting tax-exempts, focusing in particular on whether compensation paid to their executives is reasonable. This targeted audit program has resulted in increased scrutiny of taxexempts reporting on their Form 990s, which the IRS ties back to the wages reported on executives W-2s. The current Form 990 has been revised from prior years to focus on compensation paid to executives, including fringe benefits, perquisites, and loans. A work plan recently released by the IRS Tax-Exempt and Government Entities Division specifically focuses on executive pay practices of nonprofit hospitals. Therefore, taxexempts will need to review their compensation practices in general to ensure compliance with the Section 409A rules, as well as all other applicable laws. Deferred Compensation Challenges As noted above (see Footnote 1), tax-qualified pension, profit-sharing and annuity plans under Code Sections 401(a) and 403(b) are exempt from the Section 409A rules. In addition to qualified plans, tax-exempts frequently sponsor nonqualified deferred compensation plans as well. The tax rules of Code Section 457 specifically

3 Executive Alert regulate nonqualified arrangements offered by taxexempts. 457 plans may include traditional nonqualified deferred compensation plans, supplemental employer retirement plans (SERPs), excess benefits plans, and 401(k)/403(b) mirror or wrap plans. Other benefits may fall within the Section 409A definition of deferred compensation, including retention arrangements, severance arrangements, and bonus and other incentive compensation programs. Sabbaticals are a common benefit offered by educational institutions. So is tenure, and some institutions provide for the systematic purchase of such contract and property rights, which may or may not cause such arrangements to come within range of the Section 409A rules. It is a facts-and-circumstances determination whether such benefits fall within the Section 409A rules broad definition of deferred compensation. In short, a broad array of common compensation practices will need to be reviewed for 409A compliance. Ineligible 457 Plans Not all plans established under Section 457 are affected by the Section 409A rules. So-called eligible 457 plans (those established under Section 457(b)) are exempt from the requirements of Section 409A under the same exemption excluding plans qualified under Code Section 401(a) and Code Section 403(b). Only plans that are subject to Code Section 457(f) (otherwise known as 457(f) or ineligible 457 plans ) fall squarely within the domain of the Section 409A rules. Application of Section 409A to an ineligible 457 plan can be quite complex and, to date, the IRS has provided little guidance. An ineligible 457 plan must be assessed separately under both regulatory schemes: 457(f) and 409A. Therefore, application of the Section 409A rules must be coordinated with the sometimes conflicting provisions of Code Section 457(f). Challenges facing ineligible 457(f) plans include: Most ineligible 457 plans will not be grandfathered under the Section 409A rules. Once amounts deferred under an ineligible 457 plan are vested (i.e., they are no longer subject to a substantial risk of forfeiture), those amounts must be included in a worker s income. As a result, the amounts are often paid out to the worker when a substantial risk of forfeiture lapses. Therefore, amounts currently deferred under an ineligible 457 plan will not typically be vested. This means that many 457(f) plans in effect on December 31, 2004, will not qualify for grandfathered treatment under 409A. As a result, amounts deferred under 457(f) plans will generally be subject to the 409A rules unless they otherwise qualify for an exemption. Some 457(f) plans may qualify for the short-term deferral exception from 409A. As noted above, because 457(f) plans generally pay benefits to participants when those benefits vest, an exemption from the 409A rules may apply if the benefits are distributed to participants within the 2½ month short-term deferral exception. Note, however, that this will be true only if the vesting provisions meet 409A s definition of substantial risk of forfeiture. Many 457(f) plans include a substantial risk of forfeiture provision that will not meet the Section 409A definition of substantial risk of forfeiture. o Section 457(f) provides a more expansive definition of substantial risk of forfeiture. Amounts deferred under an ineligible 457 plan may be considered to be subject to a substantial risk of forfeiture, and thereby avoid income inclusion under Code Section 457, if such amounts are subject to a non-compete restriction, or the plan provides for a rolling risk of forfeiture under which a worker may extend the deferral of amounts set aside on his behalf prior to the lapse of an initial vesting period. o Rolling risks of forfeiture and non-compete clauses are not considered to be substantial risks of forfeiture under 409A, despite being fully enforceable as contractual provisions. The Section 409A rules do not recognize an obligation to refrain from performing services as a risk of forfeiture. In addition, the Section 409A rules do not recognize rolling risks of forfeiture.

4 B AKER & HOSTETLER LLP Bottom Line: Many 457(f) plans will be exempt from 409A because they qualify for the short-term deferral exception. Others will not. Those that do not must meet both 409A and 457(f). The 457(f) rules will still determine when the benefit is taxable, unless the arrangement violates 409A. If taxation occurs before payment, 409A does permit distributing enough to cover the tax withholding without violating the anti-acceleration rules. Severance Arrangements True severance pay plans are generally exempt from the application of Code Section 457 and are not considered to be a deferral of compensation. However, the Section 409A rules specifically do apply to many severance arrangements as providing for a deferral of compensation. This means that tax-exempts that previously avoided Code Section 457 with their severance pay programs may now have to bring such programs into compliance with the Section 409A rules unless another exemption applies. o One option is to design a severance pay arrangement to fit within the severance pay exemption set forth in the Section 409A rules (i.e., payable only on involuntary termination and with benefits that do not exceed the lesser of two years pay or $420,000 (in 2005), $440,000 (in 2006), and a similar indexed amount in later years). o A second option is to design the severance pay program to qualify for the short-term deferral exception (amounts payable within 2½ months of the later of the worker s or the employer s taxable year-end). Finally, note that while the Section 409A rules permit distributions to be made from deferred compensation arrangements upon a separation from service with or without cause and for good reason, the severance pay exemption under the Section 409A rules only applies if the separation from service on which severance benefits are payable is due to an involuntary termination. This means that if an arrangement permits severance payments to be made upon a separation from service for good reason, that arrangement will generally be subject to Section 409A. As long as payment is only made on some termination, the practical impact of this may not be significant, however. 457 Grandfathered Plans Amounts deferred by workers of tax-exempts into an unfunded plan prior to January 1, 1987, may not be subject to Code Section 457 under special grandfathered rules ( 457 grandfathered plans ). Likewise, amounts deferred under a 457 grandfathered plan after January 1, 1987, will continue to be exempt from 457 as long as certain conditions are met. One of these is that such plans may not be materially modified, or grandfathered treatment will be lost. Thus, tax-exempt organizations sponsoring 457 grandfathered plans are severely limited in their ability to amend such plans without losing the 457 grandfathered status. Such plans may be subject to the Section 409A rules. The question becomes, How does a tax-exempt amend its 457 grandfathered plan for the Section 409A rules, without losing its 457 grandfathered status? The IRS has been silent on this issue. Until further guidance is received, tax-exempts with 457 grandfathered plans will have to carefully consider how and to what extent they will amend such plans for compliance with the Section 409A rules. Developing an Appropriate Action Plan 2005 Tax-exempts must carefully review the terms of all of their deferred compensation plans and other arrangements to determine whether the Section 409A rules apply. Where the Section 409A rules do apply, tax-exempts must determine whether they will terminate such plans or amend them to comply with the Section 409A rules.

5 BAKER & HOSTETLER LLP If a tax-exempt decides to terminate a plan or individual workers deferrals, this must be decided and documented no later than December 31, Review 990 reporting and ensure such reporting complies with workers W-2 s Operate plans identified as being covered by the Section 409A rules with good faith compliance. Conclusion Tax-exempts now face heightened scrutiny of their compensation practices due to the IRS audit initiatives. To compound matters, tax-exempts must now also deal with the Section 409A rules. Accordingly, now is the time for all tax-exempts to scrutinize their compensation plans and practices to ensure best practices are followed, plans are in shape for potential audits, and plans are in compliance with the Section 409A rules. Amend plans that are subject to the Section 409A rules no later than December 31, Please contact any of the following attorneys if you want more information or have questions about this particular Alert: CLEVELAND Richard H. Bamberger (216) rbamberger@bakerlaw.com Raymond M. Malone (216) rmalone@bakerlaw.com Ruth Ann Maloney (216) rmaloney@bakerlaw.com John J. McGowan, Jr. (216) jmcgowan@bakerlaw.com William M. Toomajian (216) wtoomajian@bakerlaw.com Corinne M. Tyler (216) ctyler@bakerlaw.com COLUMBUS Georgeann G. Peters (614) gpeters@bakerlaw.com Sandra Parks Faulkner (614) sfaulkner@bakerlaw.com Jeanne A. Griffin (614) jgriffin@bakerlaw.com Baker & Hostetler LLP Executive Alerts are intended to inform our clients and other friends of the Firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. [Florida Rule 4-7.2(d)] 2005 Baker & Hostetler LLP Cincinnati Cleveland Columbus Costa Mesa Denver Houston Los Angeles New York Orlando Washington, D.C. International Affiliates: São Paulo, Brazil Juárez, Mexico