With the approach of 2008, there is a renewed sense of urgency surrounding executive benefit plans’ compliance with the ?409A “Final Regulations” issued by the IRS this spring. That’s because December 31, 2008 marks the deadline for adhering to the new regulations–with potentially large penalties hanging in the balance.
Surprisingly, though, these penalties are not a risk faced by the companies that drafted the executive benefit plans in question. The participants themselves are running the risk of a 20% tax penalty simply for taking part in arrangements that don’t comply with the new rules.
Do these participating executives know of this potential liability? That’s a question every producer should now be asking his or her clients. The answer may save the client from a severe financial blow and lay the groundwork for productive discussions about broader retirement planning issues.
Quiet law, big penalty
When Congress passed ?409A as part of the American Jobs Creation Act of 2004, providing guidance on how certain types of nonqualified executive benefits should be structured, the news was of interest mainly to producers working in that arena. After all, most of ?409A and the final regulations that followed address the requirements for designing, drafting, implementing and operating nonqualified executive deferral arrangements.
Yet, within its pages, was the potential 20% tax penalty for participants of out-of-compliance plans. This is disconcerting since these participants are the least likely to have knowledge of the new rules and have the least ability to make sure arrangements comply with the new rules.
There is a significant chance that every financial advisor or life insurance professional has clients who participate in these arrangements. So even those who haven’t worked in the area of executive benefits may be in a position to raise this issue with clients and, in the process, enter the executive benefits business.
As an advisor, you can play a crucial role in helping clients determine whether they are at risk of running afoul of ?409A and the final regulations. How can you identify which clients might be affected? Try asking them these questions:
o Do you have the right to defer some of your income each year?
o Are you able to defer some or all of any bonuses you earn?
o Do you have a salary continuation plan or a supplemental executive retirement plan?
o Will you be paid benefits after retirement based on years of service with your employer?
o Do you participate in a 401(k) mirror plan or a 401(k) look-alike plan?
o Do you participate in a split-dollar arrangement (other than a death-benefit-only arrangement)?
o Do you participate in a 457(f) plan?