Deferred Compensation, Part 1: Introductory Concepts

           Certain sections of the tax code (such as §1031 like-kind exchanges and §482 transfer pricing) have become their own mini-specialty.  §401-§420 (deferred compensation) is another such area of the code.  In the following posts, I’ll go over the “high points” of these code provisions, starting with today’s general introduction to the topic.
            The opening sentence of §401 contains a large amount of important information:
A trust created or organized in the United States and forming part of a stock bonus, pension, or profit-sharing plan of an employer for the exclusive benefit of his employees or their beneficiaries shall constitute a qualified trust under this section— 
Here are that sentence’s key provisions:

• “A trust:” trust law has over 500 years of common law history, dating back to Britain. There is an entire restatement on trusts which has been adopted by all U.S. states.  The legal tome Scott on Trusts is the leading academic treatise on the topic.  For an attorney, the word trust immediately leads to the phrase “fiduciary obligation,” which is best explained by these two phrases: “Alleged good faith on the part of the fiduciary forgetful of his duty is not enough…he must not have “honesty alone, but the punctilio of an honor the most sensitive.”[1] This is a very long and well-developed common law doctrine that has no wiggle room for legal shenanigans.  This is the duty placed on the company forming the plan regarding plan assets.  It’s also a primary reason why most companies outsource this task to third parties.

• “organized in the United States – self-explanatory, but it should be noted
• “forming part of a stock bonus, pension or profit-sharing plan:” Like “trust,” these words are also terms of legal art, each connoting specific concepts under the law. 
• “for the exclusive benefit of his employees:” “exclusive” is the key word, which, according to the online Merriam-Webster dictionary, means, “excluding other from participation.” Management can only use trust assets for employees.  Put another way, management can’t use the funds for company purposes like funding ongoing operations or acquisitions.
• “qualified trust” is a trust that complies with section 401(a) (Treas. Reg. 1-401(0)) which has 33 different sub-sections. Some are very broad while others are very situation specific.  Regardless, it’s a very technical section of the code, which further explains why compliance is usually outsourced to third parties.
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In 2009, F. Hale Stewart, JD. LL.M. graduated magna cum laude from Thomas Jefferson School of Law’s LLM Program.  He is the author of three books: U.S. Captive Insurance Law, Captive Insurance in Plain English and The Lifetime Income Security Solution.  He also provides commentary to the Tax Analysts News Service, as well as economic analysis to TLRAnalytics and the Bonddad Blog.  He is also an investment adviser with Thompson Creek Wealth Advisors. 










[1] In Re Rothko, 43 N.Y. 2d 305 (I have reversed the order of the quotes for the sake of clarity).