Monday, August 6, 2012
FOCUS ON BENEFITS: Year-End Deadline for Employers to Remove Noncompliant Release Provisions in Section 409A-Covered Plans
Depending on the specific terms of the agreement and timing of the payments that have already been made (if any), correcting an invalid release term may only require a simple amendment or an administrative correction.
Now is a good time for employers to review their employment, severance, and other deferred compensation agreements which are covered by Section 409A. (Many employment and severance agreements are exempt because they, among other conditions, require all payments to be made by the end of the second year after termination.) If any of these agreements require an employee to sign a release or other agreement before payments are made, contact the attorney with whom you regularly work to determine whether corrective action is necessary and what steps must be taken.
In addition, if you have any employment, severance, or other deferred compensation arrangements that were not prepared (or at least reviewed) by counsel in recent years, it would be a good idea to have them reviewed. The IRS has created a program that generally allows employers to voluntarily bring their documents into compliance with reduced or no tax penalties. While some errors may still be corrected after this year, others require action this year to take full advantage of this program.
A copy of the IRS Notice containing this relief can be found here: http://www.irs.gov/pub/irs-drop/n-10-80.pdf.