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November 12, 2004
New Law Changes Rules for Nonqualified Deferred Compensation

President Bush has signed into law the American Jobs Creation Act of 2004, which makes changes to rules covering nonqualified deferred compensation programs.

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Under the legislation (H.R. 4520), elections under nonqualified deferred compensation plans must be made in the calendar year before the year in which the services are performed. In the case of any performance-based compensation based on services performed over a period of at least 12 months, such election may be made no later than 6 months before the end of the period.

In addition, payments made under nonqualified deferred compensation programs cannot be accelerated before the time specified or the schedule chosen at the time of the deferral.

The law defines a "nonqualified deferred compensation plan" as any plan that provides for the deferral of compensation, excluding a qualified employer plan, any bona fide vacation leave, sick leave, compensatory time, disability pay, or death-benefit plan.

In general, the law applies to amounts deferred after December 31, 2004.

The Treasury Department is expected to issue regulations for the legislation soon.

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