Mastering IRC 457(f): Guidance for ERISA Counsel in Structuring Deferred Compensation Plans for Nonprofit Entities

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

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Conducted on Tuesday, October 29, 2019

Recorded event now available

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Course Materials

This CLE course will provide employee benefits and ERISA counsel with a thorough and practical guide to deferred compensation for nonprofit and exempt organization executives and employees. The panel will discuss critical changes in tax reform impacting the structuring of deferred compensation plans and define additional opportunities and challenges for exempt organization directors and professionals.


The regulations under Section 457(f) provide planning opportunities for nonprofit entities in structuring deferred compensation plans for executives. This has become particularly important with the passage of new tax reform legislation that adds a 21% tax penalty on most tax-exempt organizations that pay their "covered employees" compensation that either exceeds $1 million for the taxable year or is treated as an "excess parachute payment."

Compensation that is no longer subject to a substantial risk of forfeiture (i.e., vested) as defined under IRC Section 457(f) will be included for calculating these amounts in the year the compensation vests, even if paid or taxed in a subsequent year.

Employee benefits and ERISA counsel for nonprofit entities will need to master the ins and outs of IRC Section 457(f) and the proposed 457 regulations to advise their clients on structuring compensation arrangements to maximize tax benefits for the executives and the organization, and to minimize the amounts that will exceed the $1 million threshold or be treated as excess parachute payments.

A powerful tool for counsel is to defer compensation to a later period when the executive may have lower taxable wages. However, once a covered employee, always a covered employee, so post-termination payments may not even escape the new penalties.

Counsel must understand when compensation is subject to a substantial risk of forfeiture and when that risk lapses. The proposed regulations provide some available tools when the risk of forfeiture lapses, such as during a post-termination noncompete period, a provision adding a "rolling risk of forfeiture."

The proposed regulations also created specific compensation arrangements exempt from the requirements of IRC Section 457(f), such as separation pay plans or short-term deferrals. In drafting these agreements, counsel must understand the relationship between IRC Sections 457(f) and 409A, so executives aren't subject to severe penalties for either a document or operational failure under the plan.

Listen as our experienced panel provides a critical analysis of IRS Section 457(f) regulations and implications of tax reform, as well as offers guidance on opportunities and limitations in structuring executive compensation plans for exempt organizations.



  1. Introduction to IRC Section 457
  2. Exceptions to application of 457(f)
  3. Interaction between 457(f) and 409A guidance
  4. What are substantial risk of forfeiture and deferred compensation
    1. Noncompete covenants
    2. "Rolling risk of forfeiture"
    3. Separation pay plans
  5. The 21% excise tax on payments over $1 million or excess parachute payments
    1. Who is a covered employee
    2. What is an excess parachute payment
  6. Evaluating practical applications of 457(f) regulations


The panel will review these and other key issues:

  • Analyzing the new rules that trigger the 21% excise tax on compensation in excess of $1 million or excess parachute payments to covered employees
  • Noncompete covenants regarding whether a substantial risk of forfeiture exists
  • Planned vesting schedules and timing of cash payouts
  • When is deferral of current base salary permitted
  • Evaluating whether a plan falls under both 409A and 457(f)
  • Opportunities and limitations in structuring compliant executive compensation plans for nonprofit organizations


Fosse, J. Marc
J. Marc Fosse

Trucker Huss

Mr. Fosse focuses on all the tax, securities, corporate and accounting issues related to executive and equity...  |  Read More

Oringer, Andrew
Andrew L. Oringer


Mr. Oringer is co-chair of his firm's ERISA and Executive Compensation group, and leads the firm’s...  |  Read More

Smith, Stefan
Stefan P. Smith

Locke Lord

Mr. Smith has extensive experience in employee benefits and executive compensation law. He works with both public and...  |  Read More

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