Executive Benefits

IRC Section 409A governs the timing of elections, distributions, and funding of nonqualified deferred compensation plans. Under 409A, deferral elections must generally be made before the beginning of the year in which the compensation is earned, and distributions can only occur upon specific permissible events such as separation from service, disability, death, change in control, an unforeseeable emergency, or a specified date. Violations of 409A result in immediate taxation of all vested deferred amounts plus a 20 percent penalty tax and premium interest charges. ALKEME ensures all deferred compensation arrangements are documented and administered in strict compliance with 409A requirements.

A rabbi trust is an irrevocable trust established by the employer to informally fund deferred compensation obligations, but the trust assets remain subject to the claims of the employer's general creditors in the event of bankruptcy or insolvency. Because participants have no greater right to the assets than unsecured creditors, the trust arrangement preserves the desired tax deferral. A secular trust provides participants with a secured interest in the trust assets, meaning the funds are protected from employer creditors. However, this security triggers current taxation to the participant when contributions vest. Most employers use rabbi trusts for NQDC plans to maintain the tax deferral advantage. ALKEME advises on the appropriate trust structure based on the employer's financial stability and participant expectations.

Yes. Nonqualified deferred compensation plans, SERPs, and executive bonus plans are specifically designed for a select group of management or highly compensated employees and are exempt from most ERISA requirements, including vesting, funding, and fiduciary standards that apply to qualified plans. However, the select group must be limited to a top-hat group of employees who have the ability to negotiate their compensation, typically the top 5 to 15 percent of the workforce by position or pay. If the plan covers too broad a group, it may lose its top-hat exemption and become subject to full ERISA compliance. ALKEME helps define the eligible group and documents the selection criteria to withstand regulatory scrutiny.