Section 409A

Section 409A is a section of the United States Internal Revenue Code enacted in 2004 as part of the American Jobs Creation Act and applies to compensation that a worker earns in one year, but that is paid in a... more +
Section 409A is a section of the United States Internal Revenue Code enacted in 2004 as part of the American Jobs Creation Act and applies to compensation that a worker earns in one year, but that is paid in a future year. If deferred compensation meets the requirements of Section 409A, then the earner's tax liability is the same as it would be for other types of compensation. If deferred compensation does not meet the requirements of Section 409A, then the earner is subject to certain additional taxes.  less -
News & Analysis as of

Escaping the Clutches of 409A

Employers often use non-qualified deferred compensation (“NQDC”) arrangements to motivate or reward executive and management employees. These NQDC arrangements, if properly structured, enable key employees to defer income...more

IRS Issues Final Regulations on Property Transferred for Services Under Section 83

The Treasury Department (Treasury) and Internal Revenue Service (IRS) have issued final regulations clarifying the forfeiture provisions under Section 83 of the Internal Revenue Code of 1986, as amended, for transactions...more

Compensation Clawbacks and Code Section 409A Acceleration

When the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) became law in 2010, it included a requirement for public companies to recoup, or “clawback,” incentive compensation from executives in the event...more

The “Relocation Costs” Reimbursement Arrangement: A Section 409A Trap for the Unwary.

When an employer requires an employee to move his or her primary residence to work, or continue working, for the employer, oftentimes the employer, as an inducement for the employee to accept the offer employment or continue...more

2013 End of Year Plan Sponsor “To Do” List Part 1 – Executive Compensation

As 2013 comes to an end, we are pleased to present you with our traditional End of Year Plan Sponsor “To Do” Lists. This year we are presenting our “To Do” Lists in three separate Employee Benefits Updates. Part one of the...more

The ERISA Litigation Newsletter; November 2013

In This Issue: - Labor and Employment and ERISA Class Actions After Wal-Mart and Comcast — Practice Points for Defendants (Part I – Commonality)* - Agencies Release Guidance on HRAs, FSAs, and Employer Payment...more

California Reduces Section 409A Tax Penalty from 20% to 5%

Section 409A of the Internal Revenue Code of 1986, as amended (“Federal Section 409A”), imposes strict administrative and operational requirements on non-qualified deferred compensation arrangements, such as supplemental...more

Sutardja v. The United States: The Federal Claims Court Applies Code Section 409A to Discontinued Stock Options

Earlier this year, the U.S. Court of Federal Claims addressed the application of Section 409A of the Internal Revenue Code ("409A") to discounted stock options in Sutardja v. The United States. As expected, the court...more

California Enacts 409A Legislation Reducing State Tax Penalty

California Governor Jerry Brown signed into law AB1173 on Oct. 4, 2013, reducing the California 409A tax penalty from 20% to 5% for taxable years beginning January 1, 2013. The bill, a victory for California businesses and...more

California Reduces Rate of Section 409A State Excise Tax

In a positive development for employees, California recently reduced its excise tax rate for failures to comply with the California analog to Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”)....more

California Reduces Additional Tax on Section 409A Noncompliance

On October 4, 2013, Governor Jerry Brown signed into law Assembly Bill (“AB”) 1173, which reduces from 20 percent to 5 percent the additional California tax on nonqualified deferred compensation that fails to comply with...more

Executive Compensation and Employee Benefits Alert: Update on California's Additional Tax Relating to Noncompliant Deferred...

On October 4, 2013, California reduced the additional California state income taxes levied on deferred arrangements that violate Section 409A of the Internal Revenue Code. For taxable years beginning on January 1, 2013,...more

California Reduces Section 409A Penalty

In a victory for California employers and employees, on October 4, 2013, Governor Edmund G. Brown Jr. signed into law California Assembly Bill 1173 (“Bill 1173”), which reduces California’s additional tax on income for...more

California Governor Signs New Law Reducing State Tax Penalty for Section 409A Violations

California Governor Jerry Brown has signed into law a measure that will reduce the California income tax penalty for violations of Section 409A of the Internal Revenue Code of 1986, as amended, (“Section 409A”) from 20% to...more

"Executive Compensation and Benefits Alert: California Reduces Its 409A Income Tax"

In a rare piece of good news relating to Section 409A of the Internal Revenue Code, on October 4, 2013, California reduced its additional state tax on income failing to comply with Section 409A from 20 percent to 5 percent....more

The Section 409A Valuation: Do You Really Need One?

Yes. You do. That was easy. But perhaps we have gotten ahead of ourselves and we should start at the beginning of the story. While Section 409A is a tax provision, its genesis was the perceived abuse of deferred compensation...more

Setting the Exercise Price of Stock Options

While there are many differences between large and small employers when it comes to executive compensation, one common issue confronted by employers of varying sizes is how to set the exercise price of stock options....more

When Does Optionee Have A Legally Binding Right To Shares – Vesting Or Exercise?

Congress enacted Section 409A of the Internal Revenue Code in 2004. Given the statute’s complexity, the expense associated with compliance and its iron-fisted results, I’ve been amazed that there hasn’t been a greater clamor...more

Continued Vigilance Required for Nonqualified Deferred Compensation Arrangements

The newness of the IRC Section 409A regulations governing deferred compensation is long-gone, but the complexities of this regulatory scheme remain burdensome and all should be vigilant to ensure compliance as penalties can...more

A Cautionary Tale Under Code § 409A: Case Evidences IRS' Willingness To Seek 409A Penalties For Discount Options

The United States Court of Federal Claims recently issued an opinion confirming that § 409A of the Internal Revenue Code of 1986 applies in the context of discount stock options. The case, Sutardja v. United States, is one of...more

Court Of Federal Claims Upholds 409A "Gotcha"

If your company has been cavalier about Internal Revenue Code Section 409A, you should reconsider. In a recent opinion by the United States Court of Federal Claims, the IRS scored the first points – more than $5 million of...more

Court Affirms Discounted Stock Options Are Deferred Compensation Subject to Section 409A

Court of Federal Claims agrees with the IRS position that section 409A applies to discounted stock options; holding is important for compensatory stock option grants. On February 27, the U.S. Court of Federal Claims...more

More On Discounted Stock Options Under Section 409A

My colleague Jeff Cairns blogged about a recent court case confirming the IRS’s position that discounted stock options can be considered noncompliant nonqualified deferred compensation arrangements under Section 409A of the...more

Section 409A Tax Assessed An Discounted Stock Options – Taxpayer Sues For Refund In Federal Court Of Claims

Code Section 409A which was effective in January 1, 2005, provides strict rules that must be applied to most deferred compensation arrangements accruing benefits after the effective date. Failure to comply with the Code and...more

California Doubling Of 20% Federal Tax Increase Under IRC Section 409A

Originally published in State Bar of California Taxation Section 2013 Sacramento Delegation in February 0f 2013. Executive Summary - Under Internal Revenue Code Section 409A (“Section 409A”), all amounts deferred...more

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