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When 401 (k) plans were introduced in 1984, most executives took full advantage of the opportunity to defer current income (then taxed at marginal rates of over 50%) into the future, usually until retirement, when tax rates were expected to be much lower. These plans were important investment opportunities because executives could invest a significant amount of income on a pretax basis. However, since their introduction, Congress--almost on an annual basis--has passed laws to reduce the amount of 401 (k) and other qualified plan benefits (profit sharing, money purchase pension, defined benefit) that companies can provide to highly compensated and midlevel executives. As a result of those legislative changes, qualified plans, while still attractive, are only a starting point in successful executive retirement benefit planning.
Nonqualified deferred compensation plans often are the benefit of choice to supplement qualified plan benefits. Regulations issued by the Department of Labor, the Internal Revenue Service and the Securities and Exchange Commission as well as several high-profile court cases have had a significant impact on the design, taxation and structure of nonqualified plans. As a result of these developments, many employers have unwittingly put their nonqualified plans in danger of incurring undesired tax and legal consequences. To help ensure compliance with the applicable rules, CPAs--both inside and outside a company--must assume an increasing responsibility for the design, development and oversight of nonqualified retirement plans.
THE USES OF NONQUALIFIED PLANS
Companies use nonqualified plans for a variety of reasons. The principal one is to allow a select group of executives to defer income beyond the limits imposed by Congress on qualified plans. Some examples of these limitations are summarized in exhibit 1, page 48. Other reasons companies offer nonqualified plans include avoiding discrimination testing, providing new or additional incentive compensation and targeting benefit dollars to a select group of executives. It …