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:
 In Re Rothko, 43 N.Y. 2d 305 (I have reversed the order of the quotes for the sake of clarity).
Revenue Procedure 92-64 contains model language for a “Rabbit Trust,” which is a trust a company can establish to set-aside funds for a NQDC plan. Companies routinely use these structures to allay employee concerns about actually receiving NQDC payments.
You can read the entire Procedure at this link on the Legal Bit Stream website.
This is cross-posted on the Wealth and Risk Management Blog
As I noted in my previous post, the NQDC statute specifically states there are six events when a NQDC plan can make a distribution, one of which is when the service provider “separates from service,” which is defined in the Treasury Regulations as:
An employee separates from service with the employer if the employee dies, retires, or otherwise has a termination of employment with the employer.
As with other aspects of this statute, there is little room for a liberal legal interpretation of the definition.
The statute further defines “termination of employment” as,
Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the employer and employee reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the employee would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the employer if the employee has been providing services to the employer less than 36 months).
The statute provides 2 tests. Either there is a complete termination of employment or an 80% reduction in the amount of work performed (as compared to the preceding three years) by the service provider. This is one of the few areas where a bit of definitional “play” exists in the statute.
Finally, the statute provides the following, non-exclusive set of factors to use in a “facts and circumstances” determination as to whether termination has in fact occurred:
1.) Whether the employee continues to be treated as an employee for other purposes (such as continuation of salary and participation in employee benefit programs),
2.) Whether similarly situated service providers have been treated consistently, and
3.) Whether the employee is permitted, and realistically available, to perform services for other service recipients in the same line of business.
Section 409A contains a very strict set of times when a NQDC plan can make distributions. They are:
(i) separation from service as determined by the Secretary (except as provided in subparagraph (B)(i)),
(ii) the date the participant becomes disabled (within the meaning of subparagraph (C)),
(iv) a specified time (or pursuant to a fixed schedule) specified under the plan at the date of the deferral of such compensation,
(v) to the extent provided by the Secretary, a change in the ownership or effective control of the corporation, or in the ownership of a substantial portion of the assets of the corporation, or
(vi) the occurrence of an unforeseeable emergency.
Death (iii) and a specified time (iv) are not legally debatable; they simply are.
Like other key provisions of 409(A), disabled is specifically defining in the statute:
(C) Disabled: For purposes of subparagraph (A)(ii), a participant shall be considered disabled if the participant--
(i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or
(ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the participant’s employer.
This term is tightly written, offering lawyers little interpretational wiggle room. It’s obvious that a formal medical opinion (and probably a second) is required for the client file.
Finally, there is the unforeseen emergency:
The term “unforeseeable emergency” means a severe financial hardship to the participant resulting from an illness or accident of the participant, the participant’s spouse, or a dependent (as defined in section 152(a)) of the participant, loss of the participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the participant.
The terminology strongly implies the “fortuity” element in an insurance contract, strongly hinting that the insured does not have the ability to take preventative measures to avoid the event. It’s also highly likely that a medical opinion will also be required.
Next, we’ll discuss the “separation from service” requirement.
Income for tax purposes is defined in the broadest possible terms. §61 states it as “income from whatever source derived.” The case law adds further clarification and detail. Glenshaw Glass defined income as “undeniable accessions to wealth, clearly defined, and over which the taxpayers have complete dominion.” The latter term is central to a properly structured non-qualified deferred compensation (NQDC) plan. If the taxpayer has any control over the plan’s income, he will have to include the total income in his annual income.
Therefore, all money in a NDQC plan must be subject to a substantial risk of forfeiture. “[E]ntitlement to the amount [must be] conditioned on the performance of substantial future services by any person or the occurrence of a condition related to a purpose of the compensation, and the possibility of forfeiture is substantial.” The future services must be performance based, and they cannot include “any amount or portion of any amount that will be paid either regardless of performance, or based upon a level of performance that is substantially certain to be met at the time the criteria is established.” These two conditions further support the requirement that the NQDC contract must be in writing. They also strongly allude to an employment law component in which the service recipient and provider agree on a basic compensation level and an additional layer, which will be paid for through the NQDC plan.
Finally, the “substantial risk of forfeiture” element can’t be met if the service provider is the sole owner of the company. The underlying rationale is simple: he or she will not use their management position to not pay themselves – it’s simply not going to happen. The examples in the Treasury Regulations imply that a 20% ownership stake is the maximum amount the service provider can own of the company and still benefit from the NQDC plan. But this same section also says the ultimate determination is based on the “facts and circumstances.”
 26 U.S.C. §61
 Comm’r v. Glenshaw Glass, 348 U.S. 426 (1955)
 Treas. Reg. 1.409-1(a)(d)(1)
 Treas. Reg. 1.409A-1(e)(1)
 See also Treas. Reg. 1.409(A)-1(e)(“The term performance based compensation means compensation that amount of which, or the entitlement to which, is contingent on the satisfaction of preestablished organizational or individual performance criteria relating to a performance period of at least 12 consecutive months.”)
 Treas. Reg. 1.409(A)-1(d)(3)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. 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.
This is cross-posted at the Wealth and Risk Management Blog
In this post, I’ll take a look at several more definitions related to non-qualified deferred compensation (NQDC) plans, beginning with the definition of “plan:”
“The term plan includes any agreement, method, program or other arrangement, including an agreement, method, program or other arrangement that applies to one person or individual.”
Here, we see the Treasury using the standard definitional tactic of using several words that, while moderately different, convey the same idea. However, the commonplace definition of the word “plan” (“a method for achieving an end.”) along with its synonyms would have sufficed.
The plan must be in writing. While not explicitly stated, it is strongly implied in the regulations.
“…a plan is established on the latest of the date on which it is adopted, the date on which it is effective, and the date on which the material terms of the plan are set forth in writing. The material terms of the plan may be set forth in writing in one or more documents.”
In addition, because of the sheet complexity of NQDC, it’s best to have a governing document. (I googled the search term “NQDC sample plan and found several online examples, here, here and here).
There are only six events that allow the plan to distribute assets:
 Treas. Ref. 1.409(A)(c)(1)
 Id (“arrangement, blueprint, design, game, game plan, ground plan, master plan, program, project, roadmap, scheme, strategy, system”)
 Treas. Reg. §1.409(A)(3)(i):
 26 U.S.C. 409(A)(2)(i)-(vi)
This is cross-posted at the Wealth and Risk Management Blog
It’s doubtful that anybody in the Financial Services industry is unaware of qualified retirement plans such as 401(k)s and IRAs. Knowledge of them is required to pass licensing exams and every firm includes them in sales literature. Non-qualified plans (NQDC), however, are less well-known, largely because they are more complex and appeal to a far smaller group of potential buyers. Although their application is narrower, in the right circumstances they can provide clients with tremendous advantages.
This post begins a series on NQDC. We will be spending a large amount of time with the tax code and accompanying treasury regulations; this is necessary due to NQDC’s complexity and numerous regulations. But before delving into the code, let’s use basic statutory analysis and analyze the “plain meaning” of the words, beginning with “non-qualified.” The primary difference between NQDC and qualified plans is that the former don’t comply with §401’s safe harbors – especially the rules relating to “highly compensated individuals” and the plan funds not being subject to the plan sponsor’s general creditors. In fact, the treasury regulations define NQDC as much by what it isn’t as what it is. Moving onto the other words, the Merriam Webster online dictionary defines the word “deferred” as “withheld for or until a stated time” and “compensation” as “payment.” Combining these two definitions, we get: payment for services that is withheld until specifically enumerated events.
A properly implemented NQDC plan requires that the client does not formally receive income before certain events or else he will become liable for the accompanying taxes at inopportune times (along with penalties). Therefore, we need to know when a taxpayer recognizes income to avoid attribution from these events. This naturally leads to a discussion of the two accounting methods. The cash method stipulates that “all items which constitute gross income … are to be included for the taxable year in which actually or constructively received.” The most obvious example occurs when the taxpayer’s account increases by a specific amount of money. The accrual method is the second system. It has two factors: all events have occurred that fix the right to receive the income and the amount of the income can be determined with reasonable accuracy. For example, once the taxpayer has done the agreed upon work and sent an invoice, he can book the income under the accrual method.
The client must also avoid constructively receiving income, which is defined in §1.451-2(a):
Income although not actually reduced to a taxpayer’s possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. However, income is not constructively received if the taxpayer’s control of its receipt is subject to substantial limitations or restrictions.
The service provider cannot reach, attach, pledge, or be credited with all or any portion of the money set aside under the plan. This requires that all funds in the NQDC plan be subject to a substantial risk of forfeiture, which is discussed in treasury regulation §1.83-3(a).
a substantial risk of forfeiture exists only if rights in property that are transferred are conditioned, directly or indirectly, upon the future performance (or refraining from performance) of substantial services by any person, or upon the occurrence of a condition related to a purpose of the transfer if the possibility of forfeiture is substantial.
The most commonly used situations in NQDC contracts are continued performance by the service provider or the occurrence of a major corporate event such as a merger or acquisition, specific sales goals, going public, and the like.
This post only covers the surface of several key NDQC components. However, it should provide the reader with a basic overview of these key elements.
Next, we’ll dig deeper into the definition of an NQDC plan.
 26 U.S.C. 401(a)(4)
 See 26 U.S.S. 401(a)(2)
 The Treasury regulations define NQDC by what it isn’t. See generally Treas. Reg. §1.409A-1(a)(2)(i) through Treas. Reg. §1-409A-1(2)(ix)
 26 U.S.C. 409(A)(2)(A)(i)-(vi)
 Treas. Reg. §1.446-1(c)(i)
 Treas. Reg. §1.446-1(c)(ii)
Over the last few months, I’ve documented a series of cases where courts forced grantors of a foreign asset protection trusts to disgorge assets despite placing this fund into a “bulletproof” offshore structure. Those who continue using FAPTs offer the following rebuttals to the case law.
First, offshore trust proponents point to the unsavory character of the grantors in the case law. This is entirely accurate; the cases involve people convicted of fraud, securities laws violations and other crimes. The implication of this observation is that a client using a FAPT who isn’t a criminal would stand a better chance of surviving a creditors attack. This argument is unconvincing. The case's judicial reasoning was made independent of the facts, instead resting on public policy.
Second, offshore trust promoters argue that these cases largely involve “super-creditors” (primarily government agencies) who used their statutory powers to achieve a result unavailable to non-governmental actors. This is also unconvincing, largely for the reason given above: courts ruled against debtors based on public policy. Judges did not want to be seen as allowing debtors to “have their cake and eat it, too.” This conclusion could just as easily be reached for a private actor.
Third, offshore trust proponents note that these decisions occurred long past the point when most other creditors would have given up or settled. This is a good argument. The FAPT failures (as I call them) occurred at the end of 7, 8 and 10-year cases, largely undertaken by government agencies whose goal was to make victims whole. This explains why they were more than willing to engage in protracted and complex litigation. It’s distinctly possible that private creditors would have settled these cases long before the government actors.
And this is a key takeaway. FAPTs failures only occurred after extensive, complex and expensive litigation. Not all creditors will pursue a debtor this aggressively, opting instead to settle for a lower dollar amount. But the tables aren’t exactly pro-debtor either, because, should a creditor take aggressive action, he can refer to the FAPT failure cases to eventually force a debtor to repatriate funds.
So, should you still use FAPTs? Only as the very last piece of an asset protection plan. And then, only with a smaller percentage of the client’s assets – probably 25% at the most.
As I have documented (here, here, here, here, and here) there are several cases where courts have ruled against the grantors of a foreign asset protection trust, thereby nullifying the asset protection benefit. In this post, I want to briefly sum up the judicial reasoning used by the courts to thwart these trusts.
Some offshore jurisdictions have amended their code to include provisions such as shortening the fraudulent transfer statute of limitations or not recognizing foreign judgments. Seeking to take advantage of these debtor-friendly rules, drafting attorneys typically add a choice of law provision to trust documents, stating that the haven’s rules will apply to their trust and its interpretation. This drafting tactic is supported by Scott on Trusts, which states that the grantors choice of law designations should generally be respected.
But as the Portnoy court observed, the Restatement of the Conflict of Laws allows courts to overturn a trust’s choice of law clause if, “…required by the policy of a state.” The court continued, “application of Jersey’s substantive law would offend strong New York and bankruptcy policies if it were applied,” followed by this intellectual coup de grace: New York would not “permit a debtor to shield from creditors all of his assets because ownership is technically held in a self-settled trust, where the settlor beneficiary nonetheless retains control over the assets and may effectively direct disposition of those assets.”
The policy is clear: courts won’t allow debtors to run up large obligations, default, and then not provide creditors a legal avenue to be made whole. Not only is this ethically and politically unsavory, its economically inefficient and poor public policy. Courts will not allow themselves to be a party to a transaction that allows debtors to “have their cake and eat it too.”
Long ago, attorneys recommending foreign assets protection trusts (FAPT) realized that courts might hold grantors in contempt because they wouldn’t repatriate assets from a foreign jurisdiction. To theoretically thwart this possibility, drafters included a “duress clause” in trust indentures. When a “duress” event occurs (such as a judge forcing the grantor to repatriate assets), the grantor will either be stripped of all his trust benefits or the trustee will be allowed to deny the request.
The cases contain the following general fact pattern: the court threatens the grantor with contempt; the grantor asks the trustee for a distribution; the trustee uses the duress clause to deny the distribution; the grantor than tells the court, “I tried to comply but couldn’t.” But judges have read the relevant literature and are fully aware this is a case of artful drafting. Therefore, they impose a very high burden on the grantor when he creates the “impossible” situation. The court in Affordable Media observed:
With foreign laws designed to frustrate the operation of domestic courts and foreign trustees acting in concert with domestic persons to thwart the United States courts, the domestic courts will have to be especially chary of accepting a defendant's assertions that repatriation or other compliance with a court's order concerning a foreign trust is impossible. Consequently, the burden on the defendant of proving impossibility as a defense to a contempt charge will be especially high
In effect, the courts treat the grantors pre-planned failed compliance effort as kabuki theater. There is always a possibility that a grantor could overcome the court’s “especially high” bar. But it seems doubtful.
In the final installment of this series on foreign asset
protection trusts, I’ll look at if and when someone should use these structures.
From Wealth Management.com
In a report issued on Oct. 2, 2017, Treasury Secretary Steven Mnuchin recommended that the proposed Internal Revenue Code Section 2704 regulations be withdrawn. Those regs would have restricted the use of partnerships and other entities to generate valuation discounts. The Internal Revenue Service had released a proposal in August 2016 in an attempt to limit what it perceived as an erosion of the applicability of Section 2704 and the creation of artificial valuation discounts. A hearing was held on on Dec. 1, 2016. Almost 30,000 formal comments were submitted to the Treasury.
The report states: “Treasury and the IRS now believe that the proposed regulations’ approach to the problem of artificial valuation discounts is unworkable…. The proposed regulations could have affected valuation discounts even where discount factors, such as lack of control or lack of a market, were not created artificially as a value-depressing device.” It goes on to say that: “Treasury and the IRS plan to publish a withdrawal of the proposed regulations shortly in the Federal Register.”
Link From Our Previous Blog
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