TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, September 21, 2007

Hussey on A Critical Analysis of § 409A

Michael J. Hussey (Widener) has posted Has Congress Stopped Executives From Raiding the Bank? A Critical Analysis of I.R.C. § 409A, 75 U.M.K.C. L. Rev. 437 (2006), on SSRN.  Here is the abstract:

In October 2004 Congress passed the American Jobs Creation Act (“AJCA”). Among other things, the AJCA created § 409A to address perceived abuses of nonqualified deferred compensation. Section 409A contains detailed and restrictive provisions relating to nonqualified deferred compensation including rules on when distributions may be made, when the arrangement may be renegotiated, and new penalties applicable if a plan fails to qualify under § 409A.

This paper focuses on how § 409A began largely as a reaction to the sizeable distributions to Enron executives from their nonqualified deferred compensation accounts shortly before Enron's collapse. The paper discusses how § 409A represents a major shift in nonqualified deferred compensation planning but does little to remedy the exact problem at Enron that gave rise to § 409A.

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