IRS To Release 457 Plan Guidance

According to CCH, Cheryl Press, a senior attorney with the IRS associate chief counsel (Tax Exempt and Government Entities), noted that the IRS has not issued major guidance under Code Section 457 since it released final regulations in 2003.

She expects guidance about ineligible plans under Code Section 457(f); the definition of a governmental plan under Code Section 414(d); excess benefit plans under Code Section 415(d); and welfare benefit plans excluded from Code Section 457, such as bona fide sick and vacation leave, severance, and death benefit plans.

Press said that in the meantime, the IRS is issuing private letter rulings and responses to congressional inquiries about hardship issues, grandfathered plans, and other concerns. Press and Bill Bortz, Treasury associate benefits tax counsel, spoke at an American Law Institute-American Bar Association (ALI-ABA) conference about deferred compensation plans of tax-exempt and governmental employers.

Prior Guidance

Bortz noted that the 2003 regulations focused on eligible Code Section 457(b) plans and provided less guidance on the exceptions to Code Section 457 and ineligible 457(f) plans. CCH said he further noted that various legislative changes that have yet to be addressed under Code Section 457, include the enactment of Code Section 409A deferred compensation requirements; new rules expanding eligible rollovers to nonspouse beneficiaries; and rollovers of payments under Code Section 402(l) for retiree medical benefits.

Notice 2007-62 requested comments about a number of Code Section 457 issues that need guidance (see “Guidance Coming, Comments Requested on § 457: IRS”). Bortz said comments focused particularly on severance pay plans and whether the definition should incorporate elements of the 409A definition (benefits limited to twice final compensation; benefits conditioned on involuntary termination).