PLR 1024011: IRS approved a state deferred compensation plan under § 457(b)

Plain-English summary

A state requested a ruling on its restated deferred compensation plan under § 457(b). The plan allowed certain deferrals from accumulated sick or vacation pay, transfers from other eligible § 457(b) plans, and distributions for specified unforeseeable emergencies. The IRS ruled that the amended plan was an eligible deferred compensation plan, that deferred amounts and related income would generally be taxed when paid, and that its associated trust met § 457(g) requirements and would be tax-exempt under § 501(a).

Ruling snapshot

• Question: Does the restated state deferred compensation plan satisfy the requirements for an eligible § 457(b) plan and its related trust?
• Outcome: Approved
• Key authorities: IRC §§ 457, 501, and 6110

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201024011 Third Party Communication: None
Release Date: 6/18/2010 Date of Communication: Not Applicable
Index Number: 457.00-00
Person To Contact:
----------------------- -----------------------, ID No. -------------------
------------------------ ---------------------------------------------------
--------------------------------------- Telephone Number:
------------------------------- ---------------------
----------------------- Refer Reply To:
------------------------------------ CC:TEGE:EB:QP2
PLR-138844-09
Date:
February 19, 2010

              TY: Calendar Year

Legend

State S = -----------------------

State Plan = ------------------------------------

Dear -----------------------:

This responds to your authorized representative's letter, on behalf of State S, requesting
a ruling concerning the restated deferred compensation plan (the "State Plan") which
State S intends to be an updated eligible deferred compensation plan for State S under
section 457(b) of the Internal Revenue Code (the “Code”), as amended under the
Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”). The State
Plan previously received a private letter ruling on August 11, 2006.

The State Plan is being amended to reflect changes made to the plan with respect to
certain provisions of section 457 of the Code. In addition, amendments were made to
the trust requirements of section 457(g).

Under the State Plan, the participant may elect to make deferrals into the State Plan
from any accumulated sick pay or accumulated vacation pay that is payable in
conjunction with the participant’s severance from employment. The participant’s
election must be entered into before the first day of the month in which such amounts
would otherwise be paid or made available, the amount must be paid by the later of 2 ½
PLR-138844-09 2

months after the participants severance date, or the end of the plan year in which the
participant’s severance occurred, and the amount must have otherwise been paid or
usable by the participant prior to the severance if the participant had continued in the
employment of State S.

The trustee may, at any time, on behalf of a participant who is actively employed or
during the first twelve months following the retirement or severance from employment of
any other participant who was formerly employed by State S, accept, administer, and
distribute an amount that is either: (i) a direct plan-to-plan transfer of funds held under
another eligible deferred compensation plan or trust described in section 457(b) of the
Code for a participant that is not an eligible rollover distribution; or (ii) an eligible rollover
distribution within the meaning of the State Plan from another eligible deferred
compensation plan described in section 457(b).

Under the State Plan, severe financial hardships of the participant shall constitute
unforeseeable emergencies (A) an illness or accident of the participant or the
participants spouse or dependents (as defined in section 152 of the Code without
regard to sections 152(b)(1), (b)(2), and (d)(1)(B)); (B) loss of the participant’s property
due to casualty; or (C) other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the participant (including, but not
limited to, imminent foreclosure of or eviction from the participant’s primary residence,
and the need to pay burial or funeral expenses of a participant’s deceased spouse or
dependent.

Section 457 of the Code provides rules for the deferral of compensation by an individual
participating in an eligible deferred compensation plan as defined in section 457(b).

Section 457(a)(1)(A) of the Code provides that in the case of a participant in an eligible
governmental deferred compensation plan, any amount of compensation deferred under
the plan and any income attributable to the amounts so deferred shall be includible in
gross income only for the taxable year in which such compensation or other income is
paid to the participant or beneficiary.

Section 457(b)(5) prescribes that an eligible deferred compensation plan must meet the
distribution requirements of section 457(d).

Section 457(d)(1)(A) provides that for a section 457 plan to be an eligible plan, the plan
must have distribution requirements providing that under the plan amounts will not be
made available to participants or beneficiaries earlier than i) the calendar year in which
the participant attains age 70 1/2, ii) when the participant has a severance from
employment with the employer, or iii) when the participant is faced with an
unforeseeable emergency as determined under Treasury regulations.
PLR-138844-09 3

Section 457(d)(2) requires a plan to meet the minimum distribution requirements of
section 401(a)(9) as described in §§ 1.409(a)(9)-1 thru 1.401(a)(9)-9.

Section 457(e)(1)(A) defines an eligible employer to be a state, political subdivision of a
state, and any agency or instrumentality of a state or political subdivision of a state.

Section 457(g) provides that a plan maintained by an eligible governmental employer
shall not be treated as an eligible deferred compensation plan unless all assets and
rights purchased with such deferred compensation amounts and all income attributable
to such amounts, property, or rights of the plan are held in trust for the exclusive benefit
of participants and their beneficiaries. Section 457(g)(2)(A) provides that a trust
described in section 457(g)(1) shall be treated as an organization exempt from tax
under section 501(a).

Based upon the information submitted and the representations made, we conclude as
follows:

1. The State Plan, as amended and restated effective January 1, 2008, constitutes
   an eligible deferred compensation plan as defined in section 457(b) of the Code, as
   amended, and the regulations thereunder.
2. Amounts of compensation deferred in accordance with the terms of the State
   Plan, including any income attributable to the deferred compensation, will be includible
   under section 457(a)(1)(A) in the recipient's gross income only for the taxable year or
   years in which the amounts are paid to a participant or beneficiary in accordance with
   the terms of the State Plan.

3. The trust associated with the State Plan satisfies all applicable requirements of
   section 457(g), and will be treated as an organization exempt from taxation under
   section 501(a).

   Except as expressly provided herein, no opinion is expressed or implied concerning
   the tax consequences of any aspect of any transaction or item discussed or referenced
   in this letter. If the State Plan is significantly modified, this ruling will not necessarily
   remain applicable.

This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) of the Code
provides that it may not be used or cited as precedent.

In accordance with the Power of Attorney on file with this office, a copy of this letter is
being sent to your authorized representative.
PLR-138844-09 4

The rulings contained in this letter are based upon information and representations
submitted by the taxpayer and accompanied by a penalty of perjury statement executed
by an appropriate party. While this office has not verified any of the material submitted
in support of the request for rulings, it is subject to verification on examination.

                                 Sincerely,



                                 Cheryl E. Press
                                 Senior Technician Reviewer, Qualified Plans
                                 Branch 2 (Employee Benefits)
                                 (Tax Exempt & Government Entities)

Enclosure
Copy for purposes of section 6110

cc: