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Business Preservation Planning

409 Executive Benefit

The 409 is an executive benefit plan — a type of nonqualified deferred compensation plan that lets select, highly compensated employees enjoy tax advantages by deferring a greater percentage of their compensation (and current income taxes) than is allowed by the IRS in a qualified retirement plan.

IRC Sec. 409(p) is an antiabuse provision introduced by the Economic Growth and Tax Relief Reconciliation Act of 2001 to close a loophole that allowed disproportionate benefits to a select few and eliminate perceived abuse of the law. The 2001 legislation imposed stringent testing to determine who benefits from the ESOP at certain levels.

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