Mastering New IRC 457(f) Plan Guidance for ERISA Counsel: Structuring Deferred Comp Plans for Nonprofit Entities

Leveraging New IRS Guidance to Revive 457(f) Plans for Key Exempt Org Employees

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

Conducted on Wednesday, April 5, 2017
Recorded event now available

This CLE webinar will provide employee benefits and ERISA counsel with a thorough and practical guide to the new IRS guidance on deferred compensation for nonprofit and exempt organization executives and employees. The panel will discuss critical structuring changes to Section 457(f) and define the additional opportunities and challenges for exempt organization directors and professionals to consider in structuring deferred compensation plans.


In July 2016, the IRS released long-awaited guidance on deferred compensation for exempt organization employees. The proposed regulations under Section 457(f) provide both clarity and planning opportunities for nonprofit entities in structuring deferred compensation plans for executives, while offering some deviation from Section 409A rules on recognition events.

The proposed regulations update and supersede the prior guidance in key areas related to determining when a substantial risk of forfeiture (SRF) occurs that would require an employee with a deferred compensation plan to recognize income. The new rules decouple 457(f) SRF events from stricter Section 409A provisions and provide for a “rolling risk of forfeiture,” which allows employees to add or extend the deferral period for SRF purposes.

Additional components of the new regulations include more lenient standards than those found in Section 409A for determining whether a noncompete covenant represents a lapse in SRF requiring income recognition, as well as permitting short-term deferrals in some circumstances. These new rules provide exempt organization employers with a flexibility in structuring deferred compensation plans that is not available for their for-profit counterparts.

Listen as our experienced panel provides a critical first look at the new Section 457(f) regulations and offers practical guidance on leveraging the opportunities found in the latest IRS guidance to structure executive compensation plans for exempt organizations.


  1. Previous 457(f) guidance
  2. New guidance deviation from Section 409A treatment
    1. Noncompete covenants
    2. “Rolling risk of forfeiture”
    3. Benefit exchanges
    4. Deferral of base salary
  3. Evaluating existing plan documents to determine conformance to new regulations
  4. Structuring bona fide severance plans


The panel will review these and other key issues:

  • How do the new regs interpret participation in a noncompete covenant in terms of whether an SRF exists?
  • How do the new regulations differ from Section 409A rules on “rolling risk of forfeiture?”
  • What provisions do the new regs make for short-term deferrals on existing plans?
  • How do the new regulations allow for deferral of current base salary and under what circumstances?
  • Evaluating whether a plan falls under both 409A and 457(f)


Andrew L. Oringer, Partner
Dechert, New York

Mr. Oringer is co-chair of his firm's ERISA and Executive Compensation group, and leads the firm’s national fiduciary practice in New York. He counsels clients on their employee benefit plans and programs, benefits-related tax matters and fiduciary issues arising in connection with the investment of employee benefit plan assets. His practice includes advising clients regarding ERISA and employee benefits generally, including 401(k) and other retirement plans as well as medical and other welfare plans. His advice to clients encompasses all aspects of corporate transactions and initial public offerings in which benefits and compensation issues play a central part.

Stefan P. Smith, Partner
Locke Lord, Dallas

Mr. Smith has extensive experience in employee benefits and executive compensation law. He works with both public and private entities to establish and ensure the continued compliance of tax-qualified defined contribution and defined benefit retirement plans, including 401(k)/profit sharing plans, traditional defined benefit plans, money purchase plans, employee stock ownership plans, and cash balance plans. In addition, he assists with employee benefit matters arising during mergers and acquisitions and works with all forms of health and welfare plans and executive and equity-based compensation, including incentive and non-qualified stock options, restricted stock awards, stock appreciation rights, employee stock purchase plans, phantom equity, performance unit and bonus plans, SERPs and other excess benefit plans, and non-qualified deferred compensation plans.

J. Marc Fosse, Director
Trucker Huss, San Francisco

Mr. Fosse focuses on all the tax, securities, corporate and accounting issues related to executive and equity compensation arrangements. He works with publicly traded, private, non-profit and government clients in the design, implementation and operation of domestic and international executive nonqualified and supplemental deferred compensation plans, as well as equity-based and other long-term incentive compensation arrangements. He regularly advises clients regarding handling employee benefit matters in corporate mergers, acquisitions, divestitures, initial public offerings and other corporate transactions.

Jeffrey W. Kroh, Principal
Groom Law Group, Washington, D.C.

Mr. Kroh works with the firm's Executive Compensation and Plan Design and Taxation practice groups. His practice focuses on counseling plan sponsors and financial institutions regarding the design and administration of executive deferred compensation plans, equity compensation plans, and qualified retirement plans for large public and private companies. He works extensively on executive and nonqualified deferred compensation issues, including the design of traditional deferred compensation plans, supplemental executive retirement plans, annual and long-term bonus plans, change in control and severance arrangements, employment agreements, and equity awards in compliance with Internal Revenue Code sections 83, 162(m) and 409A, compliance with TARP restrictions on executive compensation, and other "top-hat" plan and rabbi trust design and compliance issues.


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Customer Reviews

The seminar reinforced information and explained issues in a clear manner without being either too elementary or too technical.

Mary Bowden

SC&H Group

The webinar addressed exactly what I needed for this area of my practice. Very useful information and very impressive program.

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Williams Mullen

The best seminar I have attended on this topic! The speakers did an outstanding job making the topic understandable. 

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Great overall summary of ERISA issues.

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