Sections 409A and 457: Answers to 250 Frequently Asked Questions
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New and important developments have emerged in the form of IRS guidance and case law since the first edition was published in 2011. This edition provides significantly more guidance on questions regarding procedures for correcting errors in documentation that resulted from the release of IRS Notices 2010–6 and 2010–80 and questions regarding administrative error corrections arising from the operation of nonqualified deferred compensation plans under the complex and often confusing guidance under Section 409A. Since then, in June 2016, the IRS released additional proposed Section 409A Regulations and also the long-overdue proposed regulations for Section 457 relating to non-qualified plans of tax-exempt organizations.
In addition to providing correction procedures, the IRS Notices provide guidance on drafting documents subject to Section 409A by high-lighting language that gives rise to documentary errors under Section 409A. Of course, with that guidance came a host of additional questions.
Even though more than 10 years have passed since the enactment of Section 409A, little or no official guidance has yet been issued with respect to some parts of the law. For example, the IRS and the Depart-ment of the Treasury (Treasury) have not issued proposed regulations with respect to the funding rules under Section 409A(b). Important Section 409A regulations governing the calculation of the tax in case of a violation have not been finalized, even though the proposed regulations were released in 2008 (amendments to the proposed regulations regard-ing Section 409A income inclusion principles were issued in 2016). So, much guidance is yet to come on Section 409A from the government, and case law will undoubtedly proliferate as disputes relating to Section 409A arise. Each release of new guidance and each new opinion will inevitably lead to additional questions.
This third edition is another helpful step toward addressing the important questions routinely raised by this complicated and broadly applicable law.
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