409A Guidance on Nonqualified Deferred Compensation Plans: Compliance Strategies

Implications of Tax Reform, Definition of Payment, Exemptions, Permitted Payments, Remedies and More

Note: CPE credit is not offered on this program

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Tuesday, September 3, 2019

Recorded event now available

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Program Materials

This CLE webinar will provide employee benefits counsel and advisers with a detailed review of the regulations under 409A. The panel will outline the existing 409A regulations, lingering questions under tax reform, and compliance strategies.


IRC Section 409A establishes a sophisticated regime for regulating nonqualified deferred compensation plans with strict requirements to be tax-deferred. Failure to adhere to such requirements results in deferred amounts being included in gross income to the extent not subject to forfeiture and not previously included in gross income.

To maintain the benefits of a nonqualified deferred compensation plan and avoid additional tax and penalties, counsel must have knowledge relating to all of the below : (1) the reach of Section 409A, (2) the exemptions under Section 409A (such as relaxed rules under the short-term deferral exemption and clarifications under the severance pay plan exemption), (3) the permitted payment events that comply with Section 409A (such as payments on death, separation from service, change in control payments, and under certain earn-outs or escrows in mergers), and (4) the remedies or solutions available, or unavailable, if an arrangement violates Section 409A.

Benefits counsel must understand the impact of Section 409A to advise their clients on compliance best practices.

Listen as our panel highlights the critical aspects of 409A regulations and strategies for compliance. Additionally, the panel will discuss questions that remain unanswered and new questions that may arise under tax reform.



  1. An overview of Section 409A regulations and impact on benefit plans
  2. Existing practices that violate Section 409A
  3. Compliance strategies for employee benefits counsel


The panel will review these and other key issues:

  • Best practices to avoid Section 409A violations and common pitfalls
  • The flexibility to accelerate or defer payments of deferred compensation
  • The available exemptions from 409A (including the rules governing stock options and RSUs)
  • The correction regime for 409A failures
  • The impact of recent tax reform
  • Unanswered questions in the 409A regime


Andersson, Hans
Hans Andersson

Fenwick & West

Mr. Andersson focuses his practice on a broad variety of corporate matters to support clients in the high technology...  |  Read More

Mort, Marshall
Marshall Mort

Fenwick & West

Mr. Mort focuses his practice on representation of public and private technology and life sciences companies in a wide...  |  Read More

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