409A Guidance on Nonqualified Deferred Compensation Plans: Compliance Strategies

Current Tax Law Challenges, Definition of Payment, Exemptions, Permitted Payments, Remedies, and More

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

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Conducted on Wednesday, September 13, 2023

Recorded event now available

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Course Materials

This CLE course will provide employee benefits counsel and advisers with a detailed review of the regulations under 409A. In addition, the panel will outline the existing 409A regulations, address lingering questions under tax reform, and review compliance/exemption strategies.


IRC Section 409A establishes a sophisticated regime for regulating "nonqualified deferred compensation plans" which imposes strict requirements in order for a plan to be tax-deferred. Failure to adhere to such requirements results in the inclusion of deferred amounts in gross income as they vest as well as taxation at penalty rates.

To maintain the benefits of a nonqualified deferred compensation plan and avoid these consequences, counsel must understand: (1) the scope of Section 409A (and its relationship with related doctrines, such as the common law concept of construction receipt and Section 457A), (2) the exemptions under Section 409A (such as the short-term deferral exemption and the severance pay plan exemption), (3) the permitted payment events that comply with Section 409A (such as payments on death, a separation from service, change in control payments, and under certain earn-outs or escrows in mergers), and (4) the remedies or solutions available if an arrangement violates Section 409A and the deadlines for any such corrections.

Listen as our panel highlights the critical aspects of 409A regulations and strategies for compliance. Additionally, the panel will discuss unanswered questions 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
  • Structures that provide flexibility to accelerate or defer payments of deferred compensation
  • The available exemptions from 409A (including the rules governing common equity interests, such as stock options and RSUs)
  • The correction regime for 409A failures
  • The impact of recent tax reform
  • Unanswered questions in the 409A regime


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

Stephenson, Jonathan
Jonathan Stephenson

Fenwick & West

Mr. Stephenson advises on a broad range of executive compensation and employee benefits matters to support clients in...  |  Read More

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