New Tax Requirements for Nonqualified Deferred Compensation
In addition to or in lieu of broad-based tax-qualified retirement plans, employers often provide select executives or groups of executives with nonqualified deferred compensation arrangements. These "arrangements" may be in the form of a plan, a written agreement or even a clause in an employment agreement. Much like a "401(k)" tax-qualified retirement plan, these arrangements typically provide for an advance written election by the executive to defer the receipt of otherwise payable future compensation. However, unlike tax-qualified retirement plans, which by law must generally preclude the distribution of benefits prior to an event such as death, disability, retirement or separation from service with the employer maintaining the plan, many nonqualified deferred compensation arrangements have provided for far greater flexibility as to early access to plan funds. To date, the tax law has permitted nonqualified deferred compensation, along with the attendant deferral of tax revenues for the government, on the theory that it provided a tax-favored mechanism for the accumulation of additional savings for retirement. The implementation of nonqualified deferred compensation arrangements providing for distributions upon certain types of arguably foreseeable "hardships" (eg, to pay for college) or in return for a "haircut" forfeiture, cut against the notion that the revenue deferral effect on the government is outweighed by the benefit of permitting the accumulation of additional retirement funds, as these arrangements provide benefits which may not be used for purposes of retirement.
Quarterly State Compliance Review
This edition of the Quarterly State Compliance Review looks at some of the significant legislative enactments and court decisions from the last 3 months, including two Delaware Chancery Court decisions dealing with the duty of disclosure.
Understanding <i>Blakely's </i>Impact on Corporate Compliance and Ethics
Timing is everything. The U.S. Sentencing Commission's Revised Organizational Sentencing Guidelines, with their significant shift in focus from corporate compliance programs to a broader assessment of corporate efforts to create corporate to instill cultures of "compliance and ethics," took effect on Nov. 1, 2004. The Revised Sentencing Guidelines are published at 69 Fed. Reg. 28994, 29018-29024 (May 19, 2004). (A copy annotated with LRN's comments is available at www.lrn.com /news/ussc2.htm, as is LRN's testimony and comments to the Commission.) But even before their effective date, their future, particularly with respect to individual defendants, was in doubt. On Oct. 4, the Supreme Court heard oral argument, on an expedited basis, in two cases -- <i>Booker</i> and <i>Fanfan</i> -- that challenge the constitutionality of the basic structure of the Federal Sentencing Guidelines themselves.
PCAOB Proves It Has Teeth
While some companies are unfamiliar with the Public Company Accounting Oversight Board (PCAOB), it has recently been making its presence known. PCAOB is a private-sector nonprofit corporation created by the Sarbanes-Oxley Act of 2002 (SOX), whose stated purpose is to "oversee the audit of public companies that are subject to the securities laws, and related matters, in order to protect the interests of investors ... " Section 101(a). Although some questioned whether PCAOB would ultimately have any real-world impact on accounting firms and the public issuers they audit, PCAOB has proven that it has the authority, ability and appetite to shape the heightened environment in which companies now operate following passage of SOX and its focus on restoring investor confidence in companies' financial reporting.
The IRS Office of Professional Responsibility
As many criminal practitioners are acutely aware, the Internal Revenue Service has recently ramped up compliance and enforcement efforts with budget increases and enhanced resources. A lesser-known component of this revitalized enforcement is the IRS Office of Professional Responsibility (OPR), which is charged with regulating professionals - mostly lawyers and accountants -- who practice before the IRS. OPR enforces ethical rules that govern practice before the Service, commonly known as "Circular 230," and may sanction practitioners who violate those rules. Because OPR matters can interact with the criminal process in many respects, conscientious white-collar practitioners and corporate tax counsel should familiarize themselves with OPR and its power over tax professionals.
SOX Lowers the Bar for Barring Directors and Officers
Banishment from the public company world -- through the enforcement of a D&O bar - used to be an extreme remedy for management misconduct. Now, the trend has turned, with Sarbanes-Oxley (SOX) and the current enforcement climate leading to a flood of requests for bars. In 2000, the SEC asked federal courts to impose 38 D&O bars, 7.5% of the cases initiated that year. In 2001, the SEC asked for 51 D&O bars, or 10.5%. In 2002, in the wake of corporate scandals that gave rise to Sarbanes-Oxley, the SEC requested 126 D&O bars, in 21% of initiated actions. In 2003, that number shot up to 170, in 25% of cases. As Stephen Cutler, the head of the SEC's Enforcement Division, recently explained, the SEC is "aggressively" seeking D&O bars "in expanded ways." Practitioners are now finding D&O bars to be a routine component of settling an SEC action.
Should You Tell Employees How Their Company Can Get Immunity From Prosecution?
The landscape has changed for many senior executives and other employees of corporations subject to government investigation. Two recent cases show how prosecutors virtually forced companies to "turn in" suspect executives and other employees to avoid prosecution. Amendments to the Sentencing Guidelines, effective Nov. 1, 2004, incorporate this change in the way courts will assess a corporation's compliance program.
In The Courts
Recent rulings of importance to you and your practice.
