The Section 409A rules cast a very wide net when it comes to the definition of what constitutes a nonqualified deferred compensation plan (NDCP). Accordingly, employers need to regularly inventory and review their various compensation and benefits agreements in order to determine if any existing or new arrangements are structured in a manner that creates a Section 409A NDCP. This article highlights points to consider when conducting a Section 409A “to be or not to be” determination process.

This article originally appeared in the Autumn 2019 edition of Benefits Law Journal.