Notice 2008-113 — Notice 2008-113

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Part III – Administrative, Procedural, and Miscellaneous

Relief and Guidance on Corrections of Certain Failures of a Nonqualified Deferred
Compensation Plan to Comply with § 409A(a) in Operation

Notice 2008-113

TABLE OF CONTENTS

I. Purpose

II. Background

III. Eligibility Requirements
A. In General
B. Avoidance of Recurrence of Operational Failures
C. Relief not Available to Service Providers Under Examination
D. Additional Eligibility Requirements
E. Required Repayments by the Service Provider
F. Eligibility for Relief for a Taxable Year in which the Service Recipient
Experiences a Financial Downturn or Other Financial Issue
G. Definition of Insider
H. Determining Certain Periods of Days
I. Adjustments for Earnings and Losses
J. References to the Internal Revenue Code

IV. Corrections of Certain Operational Failures in the Same Taxable Year as the Failure
Occurs
A. Failure to Defer Amount or Incorrect Payment of Amount Payable in a
Subsequent Taxable Year Corrected in the Same Taxable Year as the Failure
B. Incorrect Payment of Amount Payable in Same Taxable Year or Incorrect
Payment in Violation of § 409A(a)(2)(B)(i) Corrected in the Same Taxable Year
as the Failure
C. Excess Deferred Amount Corrected in the Same Taxable Year
D. Correction of Exercise Price of Otherwise Excluded Stock Rights

V. Corrections of Certain Operational Failures Involving Non-Insider Service Providers
in the Taxable Year Immediately Following the Taxable Year in which the Failure
Occurs
A. In General

B. Failure to Defer Amount or Incorrect Payment of Amount Payable in a
Subsequent Taxable Year Corrected in the Taxable Year Immediately Following
the Failure
C. Incorrect Payment of Amount Payable in Same Taxable Year or Incorrect
Payment in Violation of § 409A(a)(2)(B)(i) Corrected During Subsequent Taxable
Year
D. Excess Deferred Amount Corrected in the Taxable Year Immediately
Following the Year of the Failure
E. Correction of Exercise Price of Otherwise Excluded Stock Rights

VI. Relief for Certain Operational Failures Involving Limited Amounts
A. In General
B. Failure to Defer Limited Amount not Corrected in the Same Taxable Year and
Certain Erroneous Payments of Limited Amounts
C. Limited Excess Deferred Amount not Corrected in the Same Taxable Year

VII. Relief for Certain Other Operational Failures
A. General Requirements
B. Failure to Defer Amount not Corrected in the Same Taxable Year and Certain
Erroneous Payments
C. Incorrect Payment of Amount Payable in Same Taxable Year or Incorrect
Payment in Violation of § 409A(a)(2)(B)(i) not Corrected in the Same Taxable
Year as the Failure
D. Excess Deferred Amount not Corrected in the Same Taxable Year

VIII. Special Transition Rule for Non-Insiders

IX. Information and Reporting Requirements
A. Information Required with Respect to Correction of an Operational Failure in
the Same Taxable Year as the Failure Occurs
B. Information Required with Respect to Relief for Certain Operational Failures

X. Effect on Other Documents

XI. Request for Comments

XII. Paperwork Reduction Act

XIII. Drafting Information

I. PURPOSE

This notice provides procedures under which taxpayers can obtain relief from the
full application of the income inclusion and the additional taxes under § 409A with

respect to certain failures of a nonqualified deferred compensation plan to comply with
§ 409A(a) in operation (an operational failure), including:
š Methods for correcting certain operational failures during the service provider's
taxable year in which the failure occurs and, for certain service providers also
during the subsequent taxable year, to avoid income inclusion under § 409A(a).
š Relief limiting the amount includible in income under § 409A(a) for certain
operational failures during a service provider's taxable year that involve only
limited amounts.
š Relief limiting the amount includible in income under § 409A(a) for certain
operational failures regardless of whether the failure involves only limited
amounts, but subject to further required actions to correct the failure.
š Special transition relief for certain oper ational failures occurring before January 1,
2008.
Comments are also requested on whether procedures for the correction of a failure
of a plan to comply with the plan document requirements of §1.409A-1(c) should be
adopted. See § XI of this notice.
II. BACKGROUND

On December 3, 2007, the Treasury Department and the IRS issued Notice
2007-100, 2007-52 IRB 1243, setting forth guidance permitting the correction of certain
operational failures, and providing transition relief limiting the amount includible in
income under § 409A(a) for certain operational failures involving limited amounts.
Notice 2007-100 also described potential guidance that would limit the amount
includible in income under § 409A(a) for certain operational failures involving amounts

that exceeded the limit. Comments were requested with respect to all aspects of the
notice. The Treasury Department and the IRS have reviewed all of the comments
submitted, and are issuing this notice as a successor to Notice 2007-100. This notice
incorporates, clarifies and expands upon the guidance provided in Notice 2007-100, and
accordingly Notice 2007-100 is obsoleted. For further information, see § X of this
notice.
III. ELIGIBILITY REQUIREMENTS
A. In General
A taxpayer is not eligible for the relief provided in §§ IV through VIII of this notice
unless all of the applicable requirements of this § III are met, as well as the
requirements of the particular section providing the applicable relief and the notice and
the reporting requirements of § IX. In each instance, the taxpayer claiming the relief
has the burden of demonstrating that the taxpayer was eligible for the relief and that the
requirements of this notice have been met. Any application of the relief provided in this
notice is subject to examination by the IRS.
B. Avoidance of Recurrence of Operational Failure
The relief provided under §§ IV through VIII of this notice is not available unless,
in addition to meeting the applicable requirements of the relevant section, the service
recipient takes commercially reasonable steps to avoid a recurrence of the operational
failure. If the same or a substantially similar operational failure has occurred previously,
the relief is not available for any taxable year of the service provider beginning after
December 31, 2009, unless the service recipient or service provider demonstrates that
the service recipient had established practices and procedures reasonably designed to

ensure that such an operational failure would not recur and had taken commercially
reasonable steps to avoid a recurrence of the operational failure and that the
operational failure occurred despite the service recipient's diligent efforts.
C. Relief not Available to Service Providers Under Examination
The relief provided in §§ V through VIII is not available if a federal income tax
return of the relevant service provider for the service provider's taxable year in which
the operational failure occurred is under examination with respect to the plan. For this
purpose, an individual service provider is treated as under examination with respect to
the plan if the individual is under examination with respect to the individual's federal
income tax return (for example, Form 1040) for the taxable year.
D. Additional Eligibility Requirements
Sections IV through VIII of this notice do not provide relief for plan terms and
provisions that fail to meet the requirements of § 409A or for operational failures that are
not described in those sections.1 The Treasury Department and the IRS are requesting
comments as to whether an additional program to address plan document failures
would be feasible and advisable (see § XI of this notice). In addition, relief is not
available under §§ IV through VIII of this notice with respect to any exercise of a stock
right that otherwise would result in a failure to comply with § 409A. Relief otherwise
available under §§ IV through VIII of this notice is conditioned upon the timely filing and
providing of the information required by § IX of this notice. The relief provided by §§ IV

1 Reliance on the transition relief provided in Notice 2007-86, 2007-46 IRB 990, the preamble to the final
regulations under § 409A, 72 Fed. Reg. 19234, Notice 2006-79, 2006-43 IRB 763, the preamble to the
proposed regulations under § 409A, 70 Fed. Reg. 57930, or Notice 2005-1, 2005-1 CB 274, for the years
to which such transition relief applies, does not preclude a taxpayer from qualifying for the relief provided
in this notice with respect to operational failures occurring in taxable years beginning before January 1,
2009.

through VIII of this notice applies only to operational failures that are inadvertent and
unintentional. For this purpose, an inadvertent and unintentional operational failure
means a failure to comply with plan provisions that satisfy the requirements of
§ 409A(a), or an inadvertent unintentional failure to follow the requirements of § 409A(a)
in practice, due to one or more inadvertent and unintentional errors in the operation of
the plan. In addition, the relief provided in this section is not available if the failure is
directly or indirectly related to participation in any listed transaction under §1.6011-
4(b)(2)).
E. Required Repayments by the Service Provider
If to qualify for any applicable relief a serv ice provider is required to repay to the
service recipient an amount erroneously paid or made available to the service provider,
such as required in §§ IV.A, IV.B, V.B, V.C, VII.B and VII.C, the amount erroneously
paid or made available to the service provider refers to the gross amount paid to, or on
behalf of, the service provider, before the application of any withholding requirements
such as the Federal employment tax withholding requirements. The service provider
may satisfy the requirement to repay the service recipient the amount erroneously paid
to the service provider and interest (if applicable) by paying the service recipient the
equivalent amount on or before the applicable deadline. Alternatively, in lieu of such
repayment, the service recipient may reduce the service provider's compensation that
otherwise would have been paid on or before such applicable deadline by an equivalent
amount. To the extent that, in lieu of repayment, the service recipient reduces other
compensation that would have been paid to the service provider, the other
compensation that would have been paid to the service provider, but instead is used to

repay the erroneous payment or interest (if applicable), is includible in income (and
wages if the service provider is an employee).
The amount will not be treated as repaid by the service provider if, in connection
with such payment, the service recipient pays the service provider, or otherwise
provides a benefit (including an obligation to pay an amount or provide a benefit in the
future), intended as a substitute for all or part of the amount the service provider is
required to repay the service recipient.
F. Eligibility for Relief for a Taxable Year in which the Service Recipient Experiences a
Financial Downturn or Other Financial Issue

The relief provided in §§ IV through V III is not available with respect to any
erroneous payment occurring during any taxable year of the service provider in which
the service recipient experiences a substantial financial downturn, or otherwise
experiences financial or other issues, if such downturn or other issue indicates a
significant risk that the service recipient will not be able to pay the amount deferred
when the payment becomes due.
G. Definition of Insider
Certain sections of this notice provide additional eligibility requirements for relief,
or do not provide relief, if the affected service provider is an insider with respect to a
service recipient. For purposes of this notice, a service provider is an insider with
respect to a service recipient if the service provider is a director or officer of the service
recipient or is directly or indirectly the beneficial owner of more than 10% of any class of
any equity security of the service recipient, determined in accordance with the rules of
the Securities and Exchange Commission under § 16 of the Securities Exchange Act of
1934, as amended, 15 USC 78p, without regard to whether the service recipient has

any class of equity securities registered under § 12 of such Act, 15 USC 78l. See 17
CFR § 240.16a-1(a) (beneficial owner) and (f) (officer). In the case of a service
recipient that is not a corporation, such rules are applied by analogy.
H. Determining Certain Periods of Days
To apply the requirements of certain sections of this notice, a period of days
must be calculated and applied. For example, the number of days that a service
provider retained amounts erroneously paid to the service provider may be required to
be calculated. For purposes of counting days under this notice, the first day of the
period is disregarded and the last day is taken into account. For example, if on June 1,
2009, a service recipient erroneously paid a service provider an amount that the service
provider repaid on June 30, 2009, there would be 29 days from the date of payment
through the date of repayment. If the period of days required to be calculated ends
upon the service provider's repayment, and the repayment is made through a reduction
of the service provider's other compensation, the repayment date occurs on each date
the compensation otherwise would have been paid to the service provider.
I. Adjustments for Earnings and Losses

The relief provided in certain sections of this notice permits or requires that
deferred amounts be adjusted to reflect earnings and losses, provided that such
adjustments must be made by a specified deadline. If it is impracticable to make the
adjustment by the applicable deadline, the adjustment will be treated as made if, on or
before the applicable deadline, the service provider (in the case of earnings) or the
service recipient (in the case of losses) has a legally binding right to have such
adjustment made.

J. References to the Internal Revenue Code
For purposes of this notice, references to sections of the Internal Revenue Code
include references to any applicable guidance thereunder.
IV. CORRECTIONS OF CERTAIN OPERATIONAL FAILURES IN THE SAME
TAXABLE YEAR AS THE FAILURE OCCURS

A. Failure to Defer Amount or Incorrect Payment of Amount Payable in a Subsequent
Taxable Year Corrected in the Same Taxable Year as the Failure

1. Relief for Amounts to which § IV.A Applies
This § IV.A applies if during a service provider's taxable year an operational
failure occurs that is described in § IV.A.2(a) and the requirements of § IV.A.2(b)
through (d) and § IV.A.4 are met. An amount to which this § IV.A applies is treated as
having been timely deferred in accordance with the terms of the plan and any applicable
deferral election (or as having continued to be deferred under the terms of the plan).
2. Amounts to which § IV.A Applies
(a) A failure is described in this § IV.A.2(a) if an amount of nonqualified deferred
compensation that, under the terms of the plan and any applicable deferral election, and
§ 409A, should not have been paid or made available to a service provider in a taxable
year of the service provider, was erroneously paid or made available to the service
provider in that year, other than a payment that fails to meet the requirements of
§ 409A(a)(2)(B)(i) (requirement to delay for six months payments to a specified
employee upon separation from service). For rules relating to correction of certain
payments that fail to meet the requirements of § 409A(a)(2)(B)(i), see § IV.B of this
notice.

(b) The service provider repays to the service recipient the amount that was
erroneously paid or made available to the service provider on or before the last day of
the service provider's taxable year in which such amount was erroneously paid or made
available. If the service provider was not an insider (as defined in § III.G) at any time
during the taxable year in which such amount was erroneously paid or made available,
and if repayment of such amount would cause an immediate and heavy financial need
as defined in §1.401(k)-1(d)(3)(iii), in lieu of immediate repayment the service recipient
and the service provider may enter into a legally binding agreement to have such
amounts repaid over a specified period that ends not later than 24 months from the due
date (without extensions) for the federal income tax return for the service provider's
taxable year during which the amount was erroneously paid or made available to the
service provider, provided that the service provider must also pay interest on the
amount repaid to the service recipient. For this purpose, the interest rate must be no
less than the short-term applicable Federal rate (AFR) under § 1274(d)(1), based on
annual compounding, for the month in which the erroneous payment was paid or made
available. If the amount paid or withheld on a repayment date is less than the entire
erroneous payment, for each repayment date the interest calculation is applied by
substituting the unpaid balance immediately before the repayment for the amount of the
erroneous payment. The repayment requirement of this § IV.A.2(b) will not be met
unless all payments (including interest) are made by the end of the period specified in
such agreement.
(c) Immediately after such repayment (or agreement to repay) the service
provider has a legally binding right under the plan to be paid the amount that would

have been due if such amount had not been erroneously paid or made available to the
service provider during such taxable year, at the same time and in the same form of
payment that the amount would have been payable if such amount had not been
erroneously paid or made available to the service provider during such taxable year.
(d) If the total of all amounts to which this § IV.A applies that are erroneously paid
or made available under a plan (as defined for purposes of § 409A) in a service
provider's taxable year exceeds the limit on elective deferrals that would apply to a
qualified plan under § 402(g)(1)(B) for the year in which the erroneous payment was
made and the service provider was an insider (as defined in § III.G of this notice) with
respect to the service recipient at any time during the taxable year in which the
erroneous payment was made, the service provider pays interest to the service recipient
at the time the service provider repays the amount to the service recipient equal to the
amount of the erroneous payment (E) multiplied by an interest rate that is no less than
the short-term applicable Federal rate (AFR) under § 1274(d)(1) (r) multiplied by a
fraction, the numerator of which is the number of days from the erroneous payment date
to the repayment date (n
1) and the denominator of which is the number of days in such
taxable year (n2), or (E x r x n1/n2). For purposes of the preceding sentence, r is the
short-term AFR, based on annual compounding, for the month in which the erroneous
payment was paid or made available to the service provider. If the amount paid or
withheld on a repayment date is less than the entire erroneous payment, for each
repayment date the interest calculation is applied by substituting the unpaid balance
immediately before the repayment for the amount of the erroneous payment. For rules
regarding the counting of days, see § III.H of this notice.

3. Reporting and Withholding Requirements
The amount erroneously paid to the service provider that is repaid by the service
provider to the service recipient is not required to be included in income by the service
provider, or reported as income to the service provider on a Form W-2 or Form 1099 by
the service recipient. To the extent employment taxes have been withheld and paid
with respect to such payment and would not otherwise have been due absent such
payment, appropriate adjustments should be made in accordance with the applicable
rules under § 6413. To the extent that, in lieu of repayment, the service recipient
reduces other compensation that would have been paid to the service provider, the
other compensation that would have been paid to the service provider, but instead is
used to repay the erroneous payment or to pay any required interest on the erroneous
payment, is includible in income (and wages if the service provider is an employee);
however, any employment taxes withheld and paid with respect to the original
erroneous payment may be applied to satisfy the requirement to withhold and pay
employment taxes on such compensation, in which case no adjustment to the
employment taxes previously withheld and paid should be made.
4. Adjustments for Earnings
For purposes of this § IV.A, the service provider's account balance or other
amount of deferred compensation under the plan may be adjusted for earnings (or
losses) retroactive to the date the amount should have been credited to the service
provider's account or otherwise deferred (or if the amount should have otherwise
remained deferred compensation after the end of the service provider's taxable year,

retroactive to the date the amount was paid or made available), provided that such
adjustment must be made on or before the last day of such taxable year.
5. Examples
In each of the following examples, it is assumed that Employee is an individual
whose taxable year is the calendar year and Employee and Employer both satisfy the
applicable requirements of §§ III and IX of this notice.
Example 1: Employee, who is not an insider with respect to Employer, makes a
timely election to defer 50% of a bonus payable in 2009 pursuant to an account balance
plan maintained by Employer. The bonus is $100,000. Employer erroneously defers
only 10% of the bonus, or $10,000, and pays Employee the other $90,000 in 2009
(including the $40,000 that should have been deferred). The deferral is treated as
made in accordance with the terms of the plan and the deferral election if, on or before
December 31, 2009, the additional $40,000 is credited to Employee's account balance
and Employee pays Employer $40,000. The $40,000 erroneously paid to Employee is
not required to be included in income by Employee or reported as income by Employer
on Form W-2. Alternatively, in lieu of the $40,000 repayment by Employee to Employer,
compensation otherwise payable to Employee in 2009 (such as salary payments) may
be reduced by $40,000, provided that the $40,000 reduction in Employee's
compensation used to repay the amount (but not the $40,000 erroneous payment) is
included in income by Employee and reported as wages by Employer on the 2009 Form
W-2. Employer may also adjust Employee's account to reflect the earnings (or losses)
that would have been allocated to Employee's account had the amount been timely
deferred and credited to Employee's account balance, if such adjustment for earnings

(or losses) is made on or before December 31, 2009. For example, if the original
$10,000 deferral would have been credited with 10% in deemed investment earnings,
the deferral plus earnings would be $11,000. This amount must be increased by the
$40,000 repaid by Employee and may also be increased by an additional $4,000
($40,000 multiplied by 10%), to result in the $55,000 account balance that would have
been reflected had the amount been properly deferred. If the original incorrect deferral
would have been charged with 10% in deemed investment losses, the deferral less
losses would be $9,000. This account balance must be increased by the $40,000, but
may also be reduced by $4,000, for a net increase of $36,000, to result in the $45,000
account balance that would have been reflected had the amount been properly
deferred.
Example 2
: Employee, who is an insider with respect to Employer, makes a
timely election to defer 80% of a $100,000 bonus payable on July 1, 2010, pursuant to
an account balance plan maintained by Employer. Employer erroneously defers only
10% of the bonus, or $10,000, and pays Employee the other $90,000 (including
$70,000 that should have been deferred) on July 1, 2010. Assume for purposes of this
example that the short-term AFR, based on annual compounding, for July 2010 is 4.0%.
Employer notifies Employee of the error and Employee pays Employer $70,705.75 on
October 1, 2010, consisting of the $70,000 erroneous payment plus interest equal to
$705.75 ($70,000 x .04 x 92/365) (because the erroneous payment exceeds the limit on
elective deferrals that would apply to a qualified plan under § 402(g)(1)(B) for 2010 and
Employee is an insider). The $70,000 is not required to be included in income by
Employee or reported as income by Employer on Form W-2. Alternatively, in lieu of the

$70,705.75 payment by Employee to Employer, compensation otherwise payable to
Employee in 2010 (such as salary payments) may be reduced by $70,000 plus
applicable interest, in which case the reduction in Employee's compensation used to
repay the amount plus applicable interest (but not the erroneous $70,000 payment)
must be reported by Employer as wages on the 2010 Form W-2 issued to Employee
and included in Employee's income for 2010. Employer may also adjust Employee's
account to reflect the earnings that would have been allocated to Employee's account
had the amount been timely deferred and credited to Employee's account balance, if
such adjustment for earnings is made on or before December 31, 2010. Employer must
include in income any interest paid to Employer.
B. Incorrect Payment of Amount Payable in Same Taxable Year or Incorrect Payment
in Violation of § 409A(a)(2)(B)(i) Corrected in the Same Taxable Year as the Failure

1. Relief for Amounts to which § IV.B Applies
With respect to an amount to which this § IV.B applies, the service provider will
not be treated as having failed to comply with § 409A(a)(2)(B)(i) (if applicable) and the
terms of the plan and any applicable deferral election as a result of the amount being
paid or made available at the earlier date.
2. Amounts to which § IV.B Applies
This § IV.B applies if during a service provider's taxable year an operational
failure occurs that is described in § IV.B.2(a) and the requirements of § IV.B.2(b) and
§ IV.B.4 are met.
(a) A failure is described in this § IV.B.2(a) if an amount of nonqualified deferred
compensation that, under the terms of the plan and any applicable deferral election,
should not have been paid or made available to a service provider until a later date in

the same taxable year, was erroneously paid or made available to the service provider
more than 30 days before such later due date, or an amount of nonqualified deferred
compensation that, under the terms of the plan and any applicable deferral election, and
§ 409A(a)(2)(B)(i) (requirement to delay for six months payments to a specified
employee upon separation from service) and the applicable guidance, (i) would have
been payable during the six months following the service provider's separation from
service if the service provider had not been a specified employee, (ii) because the
service provider was a specified employee the amount should not have been paid or
made available to a service provider within the six months after the service provider's
separation from service, and (iii) such amount was erroneously paid or made available
to the service provider during such six-month period.
(b) On or before the last day of the service provider's taxable year in which the
amount was paid or made available, the service provider repays to the service recipient
the amount that was erroneously paid or made available to the service provider, and
immediately after such repayment the service provider has a legally binding right to
receive such amount from the service recipient on the date that (i) if the repayment is
made on or before the date the amount would otherwise have been payable under the
terms of the plan and the applicable deferral election, is the same number of days after
the date the amount would otherwise have been payable as the number of days from
the date the service recipient made the erroneous payment to the service provider
through the date the service provider repaid the erroneous payment to the service
recipient, and (ii) if the repayment is made after the date the amount would otherwise
have been payable under the terms of the plan and the applicable deferral election, is

the same number of days after the date the amount is repaid as the number of days
from the date the service recipient made the erroneous payment to the service provider
through the date the amount would otherwise have been payable under the terms of the
plan and the applicable deferral election. For rules regarding the counting of days, see
§ III.H of this notice.
3. Reporting and Withholding Requirements
If the requirements of this § IV.B are met, the original payment from the service
recipient to the service provider that has been repaid to the service recipient is not
required to be reported as income on Form W-2 or Form 1099, as applicable. To the
extent employment taxes have been withheld and paid with respect to such payment,
and would not otherwise have been due absent such payment, appropriate adjustments
should be made under the applicable rules under § 6413. However, the subsequent
payment of the amount by the service recipient to the service provider is required to be
reported appropriately as income on Form W-2 or Form 1099, as applicable, and
subject to the applicable employment taxes. If the payment is deductible by the service
recipient, the taxable year in which such deduction is allowable will be determined in
accordance with § 404(a)(5) and the service recipient's method of accounting.
4. Adjustment for Earnings
For purposes of this § IV.B, the service provider's account balance or other
amount of deferred compensation under the plan may not be adjusted for earnings, but
may be adjusted for losses, retroactive to the date the amount was erroneously paid or
made available, provided that such adjustment must be made on or before the
applicable deadline for repayment.

5. Examples
In each of the following examples, it is assumed that Specified Employee is an
individual whose taxable year is the calendar year, at all relevant times Specified
Employee is a specified employee of Employer for purposes of § 409A(a)(2)(B)(i), and
Specified Employee and Employer both satisfy the applicable requirements of §§ III and
IX of this notice.
Example 1
: Under a nonqualified deferred compensation plan sponsored by
Employer, Specified Employee has a legally binding right to a payment of deferred
compensation on the first day of the seventh month following Specified Employee's
separation from service. Specified Employee separates from service on December 15,
2008, so that the payment is due on July 1, 2009. Employer erroneously pays Specified
Employee the amount of deferred compensation on March 1, 2009 (122 days before the
original payment due date). Employer discovers the error on May 1, 2009, and
Specified Employee repays the amount to Employer on June 1, 2009 (92 days after the
erroneous payment). Provided that immediately after such repayment Specified
Employee has a legally binding right to receive the amount from Employer on
October 1, 2009 (92 days after the July 1, 2009 original payment due date) and
Employer does not repay the amount to Specified Employee before that date, Specified
Employee will not be treated as having failed to comply with § 409A(a)(2)(B)(i) and the
terms of the plan and the applicable deferral election solely as a result of the early
payment.
Example 2
: Under a nonqualified deferred compensation plan sponsored by
Employer, Specified Employee has a legally binding right to a payment of deferred

compensation payable as a lump sum payment December 1, 2009 (and so not subject
to the six-month delay requirement of § 409A(a)(2)(B)(i)). Employer erroneously pays
Specified Employee the amount of deferred compensation on September 1, 2009 (91
days early). Employer discovers the error and Specified Employee repays the amount
to Employer on November 1, 2009 (61 days after the erroneous payment). Provided
that immediately after such repayment Specified Employee has a legally binding right to
receive the amount from Employer on January 31, 2010 (61 days after the original
payment due date) and Employer does not repay the amount to Specified Employee
before that date, Specified Employee will not be treated as having failed to comply with
the terms of the plan and the applicable deferral election solely as a result of the early
payment. The erroneous payment is not includible in Specified Employee's income,
and is not required to be reported as income on the 2009 Form W-2. Such amount is
includible in Specified Employee's income in the year in which the amount is repaid by
Employer to Specified Employee, and is required to be reported as income on that
year's Form W-2 and subject to applicable income taxes.
C. Excess Deferred Amount Corrected in the Same Taxable Year

1. Relief for Amounts to which § IV.C Applies
An excess amount to which this § IV.C applies is not treated as an amount
deferred under the plan.
2. Amounts to which § IV.C Applies
This § IV.C applies if during a service provider's taxable year an operational
failure occurs that is described in §§ IV.C.2(a) and the requirements of § IV.C.2(b) and
(c) and § IV.C.3 are met.

(a) A failure is described in this § IV.C.2(a) if, under the terms of a plan and an
applicable deferral election, and § 409A, an amount that should not have been deferred
compensation under the plan is erroneously credited to the service provider's account
or otherwise treated as deferred compensation under the plan, and such excess amount
otherwise would have been paid to the service provider during the service provider's
taxable year in which the excess amount was incorrectly credited to the service
provider's account or otherwise treated as deferred compensation under the plan.
However, a service recipient's failure to timely pay in the proper taxable year of a
service provider amounts that were deferred in one or more previous taxable years of
the service provider is not a failure described in this § IV.C.2(a), but see § 1.409A-3(d)
for certain circumstances under which such payments may be treated as made in
accordance with a designated payment date.
(b) The excess amount is paid to the service provider on or before the last day of
the service provider's taxable year in which the excess amount was incorrectly treated
as deferred compensation.
(c) The amount to which the service provider has a legally binding right under the
plan at the end of the year is adjusted to reflect the payment (for example, through a
reduction in the account balance). The service recipient may (but is not required to) pay
reasonable interest to (or otherwise reasonably compensate) the service provider to
reflect the time value of money with respect to the late payment, provided that such
interest or other compensation is paid or made available by the end of the service
provider's taxable year in which such amount was incorrectly treated as deferred
compensation under the plan.

3. Adjustment for Earnings
If the service provider was an insider with respect to the service recipient (as
defined in § III.G of this notice) at any time during the service provider's taxable year
during which the failure occurred, the remaining account balance (or other deferred
compensation under the plan) is adjusted for earnings retroactive to the date the excess
amount was incorrectly credited to the service provider's account or otherwise
incorrectly treated as deferred under the plan, provided that such adjustment must be
made on or before the last day of the service provider's taxable year in which such
amount was incorrectly treated as deferred compensation under the plan. If the service
provider was not an insider, such adjustment may be made (but is not required). If the
amount was subject to losses, the remaining account balance (or other deferred
compensation under the plan) is not required to be adjusted, but may be adjusted for
such losses retroactive to the date the excess amount was incorrectly credited to the
service provider's account or otherwise incorrectly treated as deferred under the plan,
provided that such adjustment must be made on or before the last day of the service
provider's taxable year in which such amount was incorrectly treated as deferred
compensation under the plan.
4. Example
In the following example, it is assumed that Employee is an individual whose
taxable year is the calendar year and Employee and Employer both satisfy the
applicable requirements of §§ III and IX of this notice.
Example
: Employee, who is an insider with respect to Employer and whose
taxable year is the calendar year, makes a timely election pursuant to an account

balance plan to defer 10% of a bonus otherwise payable in 2008. The bonus is
$100,000. Employer erroneously defers 50% of the bonus, or $50,000, and pays
Employee $50,000 (instead of deferring $10,000 and paying Employee $90,000). The
excess $40,000 will not be treated as deferred under the plan if on or before December
31, 2008, Employer pays Employee $40,000 of the account balance under the plan.
The remaining account balance must be adjusted for earnings and may be adjusted for
losses that were allocable to such amount under the plan. Employer may (but is not
required to) pay Employee reasonable interest on the $40,000 erroneous deferral
provided such payment is made by December 31, 2008.
D. Correction of Exercise Price of Otherwise Excluded Stock Rights
1. Relief for Amounts to which § IV.D Applies
If this § IV.D applies to a stock right, t he stock right is treated from the date of
grant as not providing for a deferral of compensation for purposes of § 409A.
2. Amounts to which § IV.D Applies.
This § IV.D applies if during a service provider's taxable year a failure occurs that
is described in § IV.D.2(a) and the requirements of § IV.D.2(b) are met.
(a) A failure is described in this § IV.D.2(a) if, under the terms of a stock right,
the stock right would not provide for a deferral of compensation under § 1.409A-
1(b)(5)(i)(A) (excluded stock options) or § 1.409A-1(b)(5)(i)(B) (excluded stock
appreciation rights), except that the exercise price of the stock right is erroneously
established at less than the fair market value of the underlying stock on the date of
grant.

(b) Before the stock right is exercised and not later than the last day of the
service provider's taxable year in which the service recipient granted the service
provider the stock right, the exercise price is reset to an amount not less than the fair
market value of the underlying stock on the date of grant.
3. Example
In the following example, it is assumed that Employee is an individual whose
taxable year is the calendar year and Employee and Employer both satisfy the
applicable requirements of §§ III and IX of this notice.
Example: On January 1, 2009, Employer grants Employee a stock option to
purchase 100 shares of stock, and the stock option otherwise would not provide for a
deferral of compensation for purposes of § 409A except that due to an error the
exercise price is set at an amount below the fair market value of the stock on January 1,
2009. On July 1, 2009, Employee partially exercises the stock option and purchases 40
shares, but retains a stock option to purchase 60 shares. Provided that before the
earlier of January 1, 2009 or the exercise of the remaining stock option to purchase 60
shares, the exercise price of the stock option to purchase 60 shares is reset to a price at
or above the fair market value of the underlying stock on January 1, 2009, the stock
option to purchase 60 shares may qualify for the relief provided in this section. Because
the exercise price was not reset before the exercise on July 1, 2009, the portion of the
stock option that was exercised to purchase 40 shares is not eligible for the relief
provided in this section.

V. CORRECTIONS OF CERTAIN OPERATIONAL FAILURES INVOLVING NON-
INSIDER SERVICE PROVIDERS IN THE TAXABLE YEAR IMMEDIATELY
FOLLOWING THE TAXABLE YEAR IN WHICH THE FAILURE OCCURS

A. In General

The relief provided in this § V is available only with respect to service providers
that are not insiders as defined in § III.G of this notice at any time during the service
provider's taxable year in which the operational failure occurs, or at any time during the
immediately following taxable year. The relief is available with respect to such service
providers regardless of whether the same or a substantially similar failure occurred with
respect to a service provider that is an insider, but in no case is the relief available with
respect a service provider that is an insider at any time during either taxable year. For
example, if an operational failure under an arrangement results in two erroneous
$10,000 payments, one to a service provider that is an insider and one to a service
provider that is not an insider, the relief provided in this § V may be available with
respect to the service provider that is not an insider (provided that all other requirements
are met), but is not available with respect to the service provider that is an insider. The
relief provided in this § V may be available regardless of whether relief is also available
under § VI or VII of this notice, so that the relief provided in this section may be utilized
in lieu of the relief otherwise available under § VI or VII of this notice.
B. Failure to Defer Amount or Incorrect Payment of Amount Payable in a Subsequent
Taxable Year Corrected in the Taxable Year Immediately Following the Failure

1. Relief for Amounts to which § V.B Applies
An amount to which this § V.B applies is treated as having been timely deferred
in accordance with the terms of the plan and any applicable deferral election (or as
having continued to be deferred under the terms of the plan).

2. Amounts to which § V.B Applies
This § V.B applies if during a service provider's taxable year an operational
failure that is described in § V.B.2(a) and the requirements of § V.B.2(b) through (d) and
§§ V.B.3 and 4 are met.
(a) A failure is described in this § V.B.2(a) if an amount of nonqualified deferred
compensation that, under the terms of the plan and any applicable deferral election, and
§ 409A, should not have been paid or made available to a service provider in a taxable
year of the service provider, erroneously was paid or made available in that year, and
such payment is not a payment that fails to meet the requirements of § 409A(a)(2)(B)(i)
(requirement to delay for six months payments to a specified employee upon separation
from service).
(b) The service provider repays to the service recipient the amount that was
erroneously paid or made available to the service provider during the service provider's
taxable year immediately following the taxable year in which such amount was
erroneously paid or made available. If repayment of such amount would cause an
immediate and heavy financial need as defined in §1.401(k)-1(d)(3)(iii), the service
recipient and the service provider may enter into a legally binding agreement to have
such amounts repaid over a specified period that ends not later than 24 months from
the due date (without extensions) for the federal income tax return for the service
provider's taxable year during which the amount was erroneously paid or made
available to the service provider. However, the repayment requirement of this
§ IV.B.2(d) will not be met unless all payments are made by the end of the period
specified in such agreement. If the amount erroneously paid or made available to the

service provider is otherwise payable under the terms of the plan during the subsequent
taxable year during which repayment would be required under this § V.B.2(b), no
repayment is required. However, the service provider must pay the interest payment
set forth in § V.B.2(d) below assuming that the first date during the subsequent taxable
year at which the amount otherwise could have been paid in compliance with the plan
terms is the date of repayment.
(c) Immediately after such repayment (or agreement to repay), the service
provider has a legally binding right under the plan to be paid the amount that would
have been due if such amount had not been erroneously paid or made available to the
service provider during such taxable year, at the same time and in the same form of
payment that the amount would have been payable if such amount had not been
erroneously paid or made available to the service provider during such taxable year.
(d) The service provider pays interest to the service recipient at the time the
service provider repays the amount to the service recipient with interest at a rate not
less than the short-term applicable Federal rate (AFR) under § 1274(d)(1), based on
annual compounding, for the month in which the erroneous payment was paid or made
available, compounded as of the end of the service provider's taxable year. For this
purpose, the interest rate is the short-term AFR for the month in which the erroneous
payment was paid or made available. If the amount paid on a repayment date is less
than the entire erroneous payment, for each repayment date the interest calculation is
applied by substituting the unpaid balance immediately before the repayment for the
amount of the erroneous payment.
3. Reporting and Withholding Requirements

The amount erroneously paid to the service provider that is repaid by the service
provider to the service recipient is required to be included in income by the service
provider, and reported as income to the service provider on a Form W-2 or Form 1099
by the service recipient, for the year in which the erroneous payment is made. As part
of the relief provided by this section, the service provider is permitted to take a
deduction in determining adjusted gross income equal to the repayment to the service
recipient (but not including any interest payment), but is required to include the
subsequent payment in income (and the service recipient is required to report the
amount as income on Form W-2 or Form 1099). To the extent that, in lieu of
repayment, the service recipient reduces other compensation that would have been
paid to the service provider, the other compensation that would have been paid to the
service provider but that instead is used to repay the erroneous payment or to pay any
required interest on the erroneous payment, is includible in income (and wages if the
service provider is an employee); however, with respect to the amount repaid (excluding
any interest payment), the service provider is permitted to take a deduction in
determining adjusted gross income for the amount of the repayment.
4. Adjustment for Earnings
For purposes of this § V.B, the service provider's account balance or other
amount of deferred compensation under the plan may be adjusted for earnings (or
losses) retroactive to the date the amount should have been credited to the service
provider's account or otherwise deferred (or if the amount should have otherwise
remained deferred compensation after the end of the service provider's taxable year,
retroactive to the date the amount was paid or made available), provided that such

adjustment must be made on or before the last day of the taxable year in which the
repayment is made.
5. Example
In the following example, it is assumed that Employee is an individual whose
taxable year is the calendar year, at all relevant times Employee is not an insider as
defined in § III.G of this notice, and Employee and Employer both satisfy the applicable
requirements of §§ III and IX of this notice.
Example: Employee makes a timely election to defer 20% of a $100,000 bonus
payable on July 1, 2010, pursuant to an account balance plan maintained by Employer.
Employer erroneously defers only 10% of the bonus, or $10,000, and pays Employee
the other $90,000 (including $10,000 that should have been deferred) on July 1, 2010.
Assume for purposes of this example that the short-term AFR for July 2010 is 4.0%.
Employer notifies Employee of the error and Employee pays Employer $10,582.01 on
October 1, 2011, consisting of the $10,000 erroneous payment plus $505.73 interest.2
The deferral is treated as made in accordance with the terms of the plan under this §
V.B. For 2010, the $10,000 payment is required to be included in income by Employee
and reported as wages by Employer on the 2010 Form W-2. For 2011, Employee may
take a deduction with respect to the $10,000 repayment in determining adjusted gross
income, but may not deduct the interest payment. Alternatively, in lieu of the
$10,582.01 payment by Employee to Employer, compensation otherwise payable to
Employee in 2011 (such as salary payments) may be reduced by $10,000 plus
applicable interest, in which case the reduction in Employee's compensation used to

2 Interest during 2010 = ($10,000 x (183/365) x 4.0%) = $200.55. Interest during 2011 = ($10,200.55 x
(273/365) x 4.0%) = $305.18. Total interest = $200.55 + $305.18 = $505.73.

repay the amount plus applicable interest must be reported by Employer as wages on
the 2011 Form W-2 issued to Employee and included in Employee's income for 2011.
In such a case, Employee may take a deduction with respect to the $10,000 repayment
in determining adjusted gross income, but may not deduct the interest payment.
Employer may also adjust Employee's account to reflect the earnings that would have
been allocated to Employee's account had the amount been timely deferred and
credited to Employee's account balance, if such adjustment for earnings is made on or
before December 31, 2011.
C. Incorrect Payment of Amount Payable in Same Taxable Year or Incorrect Payment
in Violation of § 409A(a)(2)(B)(i) Corrected During Subsequent Taxable Year

1. Relief for Amounts to which § V.C Applies
With respect to an amount to which this § V.C applies, the service provider will
not be treated as having failed to comply with § 409A(a)(2)(B)(i) (if applicable) and the
terms of the plan and any applicable deferral election as a result of the amount being
paid or made available as described in § V.C.2(a) of this notice.
2. Amounts to which § V.C Applies
This § V.C applies if during a service provider's taxable year an operational
failure occurs that is described in § V.C.2(a) and the requirements of § V.C.2(b) and (c)
and §§ V.C.3 and 4 are met.
(a) A failure is described in this § V.C.2(a) if an amount of nonqualified deferred
compensation that, under the terms of the plan and any applicable deferral election,
should not have been paid or made available to a service provider until a later date in
the same taxable year, was erroneously paid or made available to the service provider
during such taxable year but more than 30 days before such later due date, or an

amount of nonqualified deferred compensation that, under the terms of the plan and any
applicable deferral election, and § 409A(a)(2)(B)(i) (requirement to delay for six months
payments to a specified employee upon separation from service), (i) would have been
payable during the six months following the service provider's separation from service if
the service provider had not been a specified employee, (ii) because the service
provider was a specified employee the amounts should not have been paid or made
available to a service provider within six months after the service provider's separation
from service, and (iii) such amount was erroneously paid or made available to the
service provider before the expiration of such six-month period.
(b) On or before the last day of the service provider's taxable year immediately
following the taxable year in which the amount was paid or made available, the service
provider repays to the service recipient the amount that was erroneously paid or made
available to the service provider.
(c) Immediately after such repayment the service provider has a legally binding
right to receive such amount from the service recipient on the date that is the same
number of days after the date the amount is repaid as the number of days from the date
the service recipient made the erroneous payment to the service provider through the
date the amount would otherwise have been payable under the terms of the plan and
the applicable deferral election. For rules regarding the counting of days, see § III.H of
this notice.
3. Reporting and Withholding Requirements
If the requirements of this § V.C are met, the original payment from the service
recipient to the service provider that has been repaid to the service recipient is required

to be reported as income on Form W-2 or Form 1099, as applicable. If the repayment
by the service provider to the service recipient and the subsequent payment from the
service recipient to the service provider both occur within the same taxable year of the
service provider, the service provider is not permitted to deduct the repayment, but also
is not required to include the subsequent payment in income (and the service recipient
is not required to report the amount as income on Form W-2 or Form 1099). As part of
the relief provided in this section, if the repayment by the service provider to the service
recipient and the subsequent payment from the service recipient to the service provider
do not occur within the same taxable year of the service provider, the service provider is
permitted a deduction in determining adjusted gross income equal to the amount of the
repayment, but is required to include the subsequent payment in income (and the
service recipient is required to report the amount as income on Form W-2 or Form
1099). To the extent that, in lieu of repayment, the service recipient reduces other
compensation that would have been paid to the service provider, the other
compensation that would have been paid to the service provider, but instead is used to
repay the erroneous payment is includible in income (and wages if the service provider
is an employee); however, with respect to the amount repaid, the service provider is
permitted a deduction in determining adjusted gross income equal to the amount of the
repayment.
4. Adjustment for Earnings
For purposes of this § V.C, the service provider's account balance or other
amount of deferred compensation under the plan may not be adjusted for earnings, but
may be adjusted for losses, retroactive to the date the amount was erroneously paid or

made available, provided that such adjustment must be made on or before the
applicable deadline for repayment.
5. Example
In the following example, it is assumed that Employee is an individual whose
taxable year is the calendar year, Employee is not an insider as defined in § III.G of this
notice at all relevant times, and Employee and Employer both satisfy the applicable
requirements of §§ III and IX of this notice.
Example: Under a nonqualified deferred compensation plan sponsored by
Employer, Employee has a legally binding right to a payment of deferred compensation
on the specified date of July 1, 2009. Employer erroneously pays Employee the amount
of deferred compensation on May 1, 2009 (61 days before the original payment due
date). Employer discovers the error on August 1, 2010, and Employee repays the
amount to Employer on August 1, 2010. Provided that immediately after such
repayment Employee has a legally binding right to receive the amount from Employer
on October 1, 2010 (61 days after the August 1, 2010 repayment date) and Employer
does not repay the amount to Employee before that date, Employee will not be treated
as having failed to comply with the terms of the plan and the applicable deferral election
solely as a result of the early payment.
D. Excess Deferred Amount Corrected in the Taxable Year Immediately Following the
Year of the Failure

1. Relief for Amounts to which § V.D Applies
An excess amount to which this § V.D applies is not treated as an amount
deferred under the plan.
2. Amounts to which § V.D. Applies

This § V.D applies if during a service provider's taxable year an operational
failure occurs that is described in § V.D.2(a) and the requirements of § V.D.2(b) through
(d) and § V.D.3 are met.
(a) A failure is described in this § V.D.2(a) if, under the terms of a plan and an
applicable deferral election, and § 409A, an amount that should not have been deferred
compensation under the plan is erroneously credited to the service provider's account
or otherwise treated as deferred compensation under the plan, and such excess amount
otherwise would have been paid to the service provider during the service provider's
taxable year in which the excess amount was incorrectly credited to the service
provider's account or otherwise treated as deferred compensation under the plan.
(b) The excess amount is paid to the service provider during the service
provider's taxable year immediately following the taxable year in which the excess
amount was incorrectly treated as deferred compensation.
(c) The amount to which the service provider has a legally binding right under
the plan at the end of such immediately following taxable year is adjusted to reflect the
payment (for example, through a reduction in the account balance).
(d) The service recipient does not pay interest to (or otherwise compensate) the
service provider to reflect the time value of money with respect to the late payment.
3. Adjustment for Earnings
The remaining account balance (or other deferred compensation under the plan)
must be adjusted for earnings and may be adjusted for losses retroactive to the date the
excess amount was incorrectly credited to the service provider's account or otherwise
incorrectly treated as deferred under the plan, provided that such adjustment must be

made on or before the last day of the service provider's taxable year in which such
amount was incorrectly treated as deferred compensation under the plan.
4. Example
In the following example, it is assumed that Employee is an individual whose
taxable year is the calendar year, at all relevant times Employee is not an insider as
defined in § III.G of this notice, and Employee and Employer both satisfy the applicable
requirements of §§ III and IX of this notice.
Example: Employee makes a timely election pursuant to an account balance
plan to defer 10% of a bonus otherwise payable in 2010. The bonus is $100,000.
Employer erroneously defers 20% of the bonus, or $20,000, and pays Employee
$80,000 (instead of deferring $10,000 and paying Employee $90,000). Employer pays
Employee $10,000 of the account balance under the plan on July 1, 2011. Provided
that Employee includes in income the $10,000 payment in 2011, Employee is not
required to include any amount in income under § 409A. The remaining account
balance must be adjusted for earnings and may be adjusted for losses that were
allocable to such $10,000 amount under the plan. However, Employer may not pay
Employee interest on the $10,000 erroneous deferral or otherwise compensate
Employee for the loss of the use of such funds.
E. Correction of Exercise Price of Otherwise Excluded Stock Rights

1. Relief for Amounts to which § V.E Applies
If this § V.E applies to a stock right, the stock right is treated from the date of
grant as not providing for nonqualified deferred compensation for purposes of § 409A.
2. Amounts to which § V.E. Applies

This § V.E applies if during a service provider's taxable year a failure occurs that
is described in § V.E.2(a) and the requirements of § V.E.2(b) are met.
(a) A failure is described in this § V.E.2(a) if, under the terms of a stock right, the
stock right would not provide for a deferral of compensation under § 1.409A-1(b)(5)(i)(A)
(excluded stock options) or § 1.409A-1(b)(5)(i)(B) (excluded stock appreciation rights),
except that the exercise price of the stock right is erroneously established at less than
the fair market value of the underlying stock on the date of grant.
(b) Before the stock right is exercised and not later than the last day of the
service provider's taxable year immediately following the service provider's taxable year
in which the service recipient granted the service provider the stock right, the exercise
price is reset to an amount equal to or exceeding the fair market value of the underlying
stock on the date of grant, and at all times before such increase in the exercise price the
stock right otherwise would not have provided for a deferral of compensation for
purposes of § 409A.
3. Example
In the following example, it is assumed that Employee is an individual whose
taxable year is the calendar year, Employee is not an insider as defined in § III.G of this
notice at all relevant times, and Employee and Employer both satisfy the applicable
requirements of §§ III and IX of this notice.
Example. On January 1, 2009, Employer grants Employee a stock option to
purchase 100 shares of stock, and the stock option otherwise would not provide for a
deferral of compensation under § 409A except that due to an administrative error the
exercise price is set at an amount below the fair market value of the stock on January 1,

2009. On July 1, 2010, Employee partially exercises the stock option and purchases 40
shares, but retains a stock option to purchase 60 shares. Provided that before the later
of January 1, 2011 or the date the remaining stock option to purchase 60 shares is
exercised, the exercise price of the stock option to purchase 60 shares is reset to a
price at or above the fair market value of the underlying stock on January 1, 2009, the
stock option to purchase 60 shares may qualify for the relief provided in this section.
Because the exercise price was not reset before the July 1, 2010 exercise, the portion
of the stock option that was exercised to purchase 40 shares is not eligible for the relief
provided in this section.
VI. RELIEF FOR CERTAIN OPERATIONAL FAILURES INVOLVING LIMITED
AMOUNTS

A. In General

If an operational failure to comply with § 409A(a) occurs, but the operational
failure qualifies for the relief provided in this § VI and the taxpayer meets the
requirements of this § VI, the amount required to be included in income under § 409A(a)
as a result of the failure, and the resulting additional taxes under § 409A, are limited in
accordance with the provisions of this section. The relief provided by this section is not
available with respect to any failure unless all of the requirements of this section
(including any applicable requirement to file an original or amended return, but not
including the requirements of § IX of this notice) have been satisfied not later than the
end of the second taxable year of the service provider following the taxable year of the
service provider in which such failure occurred. The relief provided in this section is
available even if additional relief would otherwise be available under § V or § VII of this

notice if certain further actions were taken, so that the relief provided in this section may
be utilized in lieu of the relief otherwise available under § V or § VII of this notice.
B. Failure to Defer Limited Amount not Corrected in the Same Taxable Year and
Certain Erroneous Payments of Limited Amounts

1. Relief for Amounts to which § VI.B Applies
With respect to an amount to which § VI.B applies, the amount includible in
income under § 409A(a) as a result of a payment described in § VI.B.2(a) is limited to
the amount that should have been treated as deferred compensation under the plan (or
should have continued to be deferred compensation under the plan) but was instead
paid or made available to the service provider, and does not include any other amounts
deferred under the plan. In addition, with respect to such amount includible in income
under § 409A(a), the service provider is required to pay the additional tax under
§ 409A(a)(1)(B)(i)(II) (the additional 20% tax), but is not required to pay the additional
tax under § 409A(a)(1)(B)(i)(I) (the premium interest tax).
2. Amounts to which § VI.B Applies
This § VI.B applies if during a service provider's taxable year an operational
failure occurs that is described in § IV.B.2(a) and the requirements of § IV.B.2(b) and (c)
and § VI.B.3 are met.
(a) A failure is described in this § IV.B.2(a) if an amount should have been
treated as deferred compensation under the terms of the plan and any applicable
deferral election, and § 409A, but the amount was not credited to the service provider's
account or otherwise treated as deferred compensation during the service provider's
taxable year, or did not remain deferred compensation after the end of such year, and
because the amount was not credited to the service provider's account or otherwise

treated as deferred compensation under the plan during such year, or did not remain
deferred compensation under the plan after the end of such year, the amount was paid
or made available to the service provider during the service provider's taxable year. For
purposes of this section, a payment of an amount (including a payment of an amount
that is one of a series of installment payments or life annuity payments) that (a) under
the terms of the plan and § 409A(a)(2)(B)(i) is required to be delayed for at least six
months following a separation from service, but is paid within that six-month-period, or
(b) is paid in the same taxable year in which the amount was payable under the plan,
but more than 30 days before such due date, may be treated as the payment of an
amount that should have continued to be deferred compensation.
(b) Sections IV.A, IV.B, V.B, V.C, VII.B and VII.C of this notice do not apply
because relief is not available under such sections with respect to the failure, the failure
is not corrected under such sections, or otherwise.
(c) The amount paid or made available to the service provider does not exceed
the limit on elective deferrals that would apply to a qualified plan under § 402(g)(1)(B)
for the year of the operational failure. For purposes of this section, the plan includes
any arrangements treated as a single plan under § 1.409A-1(c), so that this section will
apply only if any and all erroneous payments under the plan, in the aggregate, of
amounts that otherwise should have been treated as deferred compensation with
respect to the service provider during the taxable year (or should have continued to be
deferred compensation during the taxable year), do not exceed the limit on elective
deferrals that would apply to a qualified plan under § 402(g)(1)(B) for such year.
3. Reporting and Filing Requirements

The service recipient must report such payment on a Form W-2 (or Form W-2c)
or Form 1099 (or corrected Form 1099), as applicable, as an amount includible in
income under § 409A for the year in which the payment was made, including reporting
such amount on a Form W-2, Box 12 using Code Z, if applicable. The service provider
must include such amount in income on and pay the additional taxes under § 409A as
described in this section with an original or amended federal income tax return for the
taxable year in which the payment was made.
4. Examples
It is assumed for purposes of the following examples that Employee is an
individual whose taxable year is the calendar year and Employee and Employer both
satisfy the applicable requirements of §§ III and IX of this notice.
Example 1
: Employee makes a timely election to defer 10% of a bonus payable
in 2008 pursuant to an account balance plan. The bonus is $100,000. Employer
erroneously defers only 8% of the bonus, or $8,000, and pays Employee $92,000
(instead of deferring $10,000 and paying Employee $90,000). Employer discovers the
error on February 1, 2010. As a payment to Employee, Employer must treat the amount
as a wage payment for employment tax and reporting purposes, as appropriate,
including reporting as income and wages on the 2008 Form W-2. Employer is permitted
to report as income under § 409A on the 2008 Form W-2 (or 2008 Form W-2c), Box 12,
using Code Z, only $2,000, and Employee is permitted to include in income under
§ 409A for 2008 only $2,000. Furthermore, Employee is permitted to pay the additional
20% tax only with respect to the $2,000 (or $400 in additional income tax), and is not
required to pay the premium interest tax. However, to qualify for the relief, Employee

must file an original or amended 2008 income tax return reflecting the additional tax on
or before December 31, 2010.
Example 2: Employee is a specified employee entitled under a nonqualified
deferred compensation plan to a life annuity commencing upon the first day of the
seventh month following the specified employee's separation from service. The annuity
payments are $5,000 per month. Employee separates from service on April 18, 2008,
and is scheduled to receive an initial annuity payment on November 1, 2008. Due to a
miscalculation of the specified employee's separation from service date, Employee
receives a $5,000 payment on October 1, 2008, before the end of the six-month period
following Employee's separation from service. Employer and Employee do not discover
the error until 2010. Employer must treat the amount paid to Employee as a wage
payment for employment tax and reporting purposes, as appropriate, including reporting
as income on the 2008 Form W-2. Employer is permitted to report as income under
§ 409A on the 2008 Form W-2 (or 2008 Form W-2c), Box 12, using Code Z, only
$5,000, and Employee is permitted to include in income under § 409A in 2008 only
$5,000. Furthermore, Employee is permitted to pay the additional 20% tax only with
respect to the $5,000 (or $1,000 in additional income tax), and is not required to pay the
premium interest tax. However, to qualify for the relief, Employee must file an original
or amended 2008 income tax return reflecting the additional tax on or before December
31, 2010.
C. Limited Excess Deferred Amount not Corrected in the Same Taxable Year

1. Relief for Amounts to which § VI.C Applies

With respect to amounts to which § VI.C applies, the amount includible in income
under § 409A(a) as a result of an operational failure described in § VI.C.2(a) is limited to
the excess amount paid to the service provider, and does not include any other deferred
compensation under the plan, and such amount is includible in income only when paid
to the service provider in accordance with this section. In addition, with respect to this
amount includible in income under § 409A(a), the service provider is required to pay the
additional 20% tax, but is not required to pay the premium interest tax.
2. Amounts to which § VI.C Applies
This § VI.C applies if during a service provider's taxable year an operational
failure occurs that is described in § VI.C.2(a) and the requirements of § VI.C.2(b)
through (d) and §§ VI.C.3 and 4 are met:
(a) A failure is described in this § VI.C.2(a) if, under the terms of the plan and
any applicable deferral election, and § 409A, an amount of deferred compensation
under the plan should have been paid or made available to the service provider during
the service provider's taxable year, or an amount is treated as deferred compensation
under the plan that should have been paid or made available to the service provider
during the service provider's taxable year, but such amount erroneously is not paid or
made available to the service provider.
(b) Sections IV.C, V.D and VII.D of this notice do not apply because relief is not
available under such sections with respect to the failure, the failure is not corrected
under such sections, or otherwise.
(c) The amount that should have been paid or made available to the service
provider during that service provider's taxable year does not exceed the limit on elective

deferrals that would apply to a qualified plan under § 402(g)(1)(B) for such year. For
purposes of this section, the plan includes any arrangements treated as a single plan
under § 1.409A-1(c), so that this section will apply only if any and all erroneous
deferrals under the plan, in the aggregate, of amounts that otherwise should have been
paid during the service provider's taxable year to the service provider do not exceed the
applicable limit on elective deferrals that would apply to a qualified plan under
§ 402(g)(1)(B).
(d) By the end of the service provider's second taxable year following the year in
which the failure occurred, the service recipient pays the service provider the amount
that should have been paid or made available to the service provider.
3. Reporting and Withholding
The service recipient must report such payment on a Form W-2 or Form 1099, as
applicable, for the year of the payment in accordance with the requirements of this
section. If the service recipient properly reports the payment as includible in income
under § 409A on a Form W-2, if applicable, for the year in which the payment was
made, including reporting such amount on Form W-2, Box 12 using Code Z, the service
recipient will not be subject to penalties or liability for the failure to properly withhold
under § 3402(d). The service provider must include such amount in income and pay the
additional taxes under § 409A(a) as described in this section on an original or amended
federal income tax return.
4. Adjustment for Earnings
Any earnings allocable to such amounts through the date of the payment must
either be forfeited or added to the payment to the service provider, and any losses

allocable to such amounts through the date of the payment must either be permanently
disregarded or subtracted from the payment to the service provider.
5. Example
It is assumed for purposes of the following example that Employee is an
individual whose taxable year is the calendar year and Employee and Employer both
satisfy the applicable requirements of §§ III and IX of this notice.
Example: Employee makes a timely election to defer 8% of a bonus payable in
2009 into an account balance plan. The bonus is $100,000. Employer erroneously
defers 10% of the bonus, or $10,000, and pays Employee $90,000 (instead of deferring
$8,000 and paying Employee $92,000). Employer discovers the error on February 1,
2010. On March 1, 2010, at which time Employee's account balance includes $150 in
earnings on the excess $2,000 credited to the account, Employer pays Employee
$2,150. Employer reports the $2,150 as income under § 409A on the 2010 Form W-2,
Box 1 and Box 12, using Code Z. Provided that Employee reports such income and
pays the applicable taxes, including the additional § 409A taxes, on a 2010 Form 1040,
Employee is not required to include any additional amounts deferred under the plan in
income under § 409A(a) or to include any amount in income under § 409A for years
before 2010, and with respect to the $2,150 includible in income under § 409A is
required to pay only the additional 20% tax (or $425 in additional income tax), and not
the premium interest tax. Employer may also have paid Employee only the $2,000
excess deferred amount if the $150 in earnings on such amount were forfeited.
VII. RELIEF FOR CERTAIN OTHER OPERATIONAL FAILURES

A. General Requirements

If an operational failure to comply with § 409A(a) occurs but the operational
failure qualifies for the relief provided in this § VII and is corrected in accordance with
this § VII, the amount required to be included in income under § 409A(a) as a result of
the failure, and the resulting additional taxes under § 409A, are limited in accordance
with the provisions of this section. The relief provided by this section is not available
with respect to any failure unless all of the requirements of this section (including any
requirement to file an original or amended return, but not the requirements of § IX of this
notice) have been satisfied not later than the end of the second taxable year of the
service provider following the taxable year of the service provider in which such failure
occurred.
B. Failure to Defer Amount not Corrected in the Same Taxable Year and Certain
Erroneous Payments

1. Relief for Amounts to which § VII.B Applies
With respect to amounts to which §VII.B applies, the amount includible in income
under § 409A(a) as a result of a payment described in § VII.B.2(a) is limited to the
amount that should have been treated as deferred compensation under the plan (or
should have continued to be deferred compensation under the plan) but was instead
paid or made available to the service provider, and does not include any other amounts
deferred under the plan. In addition, with respect to such amount includible in income
under § 409A(a), the service provider is required to pay the additional tax under
§ 409A(a)(1)(B)(i)(II) (the additional 20% tax) for the year in which the amount is
includible in income under § 409A(a) (the year of the failure), but is not required to pay
the additional tax under § 409A(a)(1)(B)(i)(I) (the premium interest tax). If the
requirements of this section are met, for taxable years following the year during which

the failure occurred, the amount repaid by the service provider is treated as an amount
previously included in income for purposes of § 409A(c).
2. Amounts to which § VII.B Applies
This § VII.B applies if during a service provider's taxable year an operational
failure occurs that is described in § VII.B.2(a) and the requirements of § VII.B.2(b)
through (d) and §§ VII.B.3 and 4 are met:
(a) A failure is described in this § VII.B.2(a) if an amount of nonqualified deferred
compensation that, under the terms of the plan and any applicable deferral election, and
§ 409A, should not have been paid or made available to a service provider in a taxable
year of the service provider, was erroneously paid or made available to the service
provider in that year, and such payment does not fail to meet the requirements of
§ 409A(a)(2)(B)(i) (requirement to delay for six months payments of a specified
employee upon separation from service). For rules relating to correction of certain
payments that fail to meet such requirements, see § VII.C of this notice;
(b) Sections IV.A, IV.B, V.B, V.C and VI.B of this notice do not apply because
relief is not available under such sections with respect to such failure, the failure is not
corrected under such sections, or otherwise;
(c) The service provider repays to the service recipient the amount that was
erroneously paid or made available to the service provider on or before the last day of
the service provider's second taxable year following the year in which the erroneous
overpayment occurred, and immediately after such repayment the service provider has
a legally binding right under the plan to be paid the amount that would have been due if
such amount had not been erroneously paid or made available to the service provider,

at the same time and in the same form of payment that the amount would have been
payable if such amount had not been erroneously paid or made available to the service
provider.
(d) If the service provider is an insider (as defined in this § III.G) with respect to
the service recipient, the service provider pays interest to the service recipient at the
time the service provider repays the amount to the service recipient at a rate not less
than the short-term applicable Federal rate (AFR) under § 1274(d)(1), based on annual
compounding, for the month in which the erroneous payment was paid or made
available, compounded as of the end of the service provider's taxable year. For this
purpose, the interest rate is the short-term AFR for the month in which the erroneous
payment was paid or made available. If the amount paid on a repayment date is less
than the entire erroneous payment, for each repayment date the interest calculation is
applied by substituting the unpaid balance immediately before the repayment for the
amount of the erroneous payment.
3. Reporting and Withholding
The service recipient must report the erroneous payment as an amount includible
in income under § 409A on a Form W-2 (or Form W-2c), under Box 12, Code Z, or Form
1099 (or corrected Form 1099), as applicable, for the year in which the erroneous
payment was made. The service provider must include the amount of the erroneous
payment in income under § 409A on and pay the additional taxes under § 409A(a) with
an original or amended federal income tax return for the year in which the erroneous
payment was made, and must not claim a deduction or other adjustment reflecting the

repayment for the year in which the service provider repays the amount to the service
recipient.
4. Adjustment for Earnings
For purposes of this § VII.B, the service provider's account balance or other
amount of deferred compensation under the plan may be adjusted for earnings (or
losses) retroactive to the date the amount should have been credited to the service
provider's account or otherwise deferred (or if the amount should have otherwise
remained deferred compensation after the end of the service provider's taxable year,
retroactive to the date the amount was paid or made available), provided that such
adjustment must be made on or before the applicable deadline for repayment.
5. Example
It is assumed for purposes of the following example that Employee is an
individual whose taxable year is the calendar year, at all relevant times Employee is not
an insider with respect to Employer as defined in § III.G, and Employee and Employer
both satisfy the applicable requirements of §§ III and IX of this notice.
Example
: Employee makes a timely election to defer 50% of a bonus payable in
2008 pursuant to an account balance plan. The bonus is $300,000. Employer
erroneously defers only 25% of the bonus, or $75,000, and pays Employee $225,000
(instead of deferring $150,000 and paying Employee $150,000). Employer discovers
the error on June 1, 2010. Employee pays $75,000 to Employer on July 1, 2010 (or
alternatively, Employer retains $75,000 of compensation that Employee was otherwise
due on July 1, 2010). As a payment to Employee, Employer must treat the 2008
payment as a wage payment for employment tax and reporting purposes, as

appropriate, including reporting as income and wages on the 2008 Form W-2.
Employer is permitted to report as income under § 409A on the 2008 Form W-2 (or
2008 Form W-2c), Box 12, using Code Z, only $75,000, and Employee is permitted to
include in income under § 409A for 2008 only $75,000. Furthermore, for 2008
Employee is permitted to pay the additional 20% tax only with respect to the $75,000 (or
$15,000 in additional income tax), and is not required to pay the premium interest tax.
The 2010 Form W-2 provided to the Employee must not reflect any reduction in income
due to the repayment, including if the repayment were made through the reduction in
compensation otherwise payable to the Employee, and Employee is not permitted a
deduction or any other adjustment to income on Employee's 2010 Form 1040 reflecting
the repayment. For future taxable years, Employee is treated for purposes of § 409A(c)
as having previously included in income $75,000 of the amount deferred under the plan.
C. Incorrect Payment of Amount Payable in Same Taxable Year or Incorrect Payment
in Violation of § 409A(a)(2)(B)(i) not Corrected in the Same Taxable Year as the Failure

1. Relief for Amounts to which § VII.C Applies
With respect to amounts to which § VII.C applies, the amount includible in
income under § 409A(a) as a result of a payment described in § VII.C.2(a) is limited to
the amount that should have been treated as deferred compensation under the plan (or
should have continued to be deferred compensation under the plan) but was instead
paid or made available to the service provider, and does not include any other amounts
deferred under the plan. In addition, with respect to such amount includible in income
under § 409A(a), the service provider is required to pay the additional tax under
§ 409A(a)(1)(B)(i)(II) (the additional 20% tax), but is not required to pay the additional
tax under § 409A(a)(1)(B)(i)(I) (the premium interest tax). Provided that the

requirements of this section are met, for taxable years following the year during which
the failure occurred, the amount repaid by the service provider is treated as an amount
previously included in income for purposes of § 409A(c).
2. Amounts to which § VII.C Applies
This § VII.C applies if during a service provider's taxable year an operational
failure occurs that is described in § VII.C.2(a) and the requirements of § VII.C.2(b)
through (d) and §§ VII.C.3 and 4 are met.
(a) A failure is described in this § VII.C.2(a) if an amount of nonqualified deferred
compensation that, under the terms of the plan and any applicable deferral election,
should not have been paid or made available to a service provider until a later date in
the same taxable year, erroneously was paid or made available to the service provider
during such taxable year more than 30 days before such later date, or an amount of
nonqualified deferred compensation that, under the terms of the plan and any applicable
deferral election, and § 409A(a)(2)(B)(i) (requirement to delay for six months payments
to a specified employee upon separation from service), (i) would have been payable
less than six months after the service provider's separation from service if the service
provider had not been a specified employee, (ii) because the service provider was a
specified employee the amounts should not have been paid or made available within
the six-month period following the service provider's separation from service, and (iii)
such amounts were erroneously paid or made available to the service provider within
such six-month period.

(b) Sections IV.B, V.C, and VI.B of this notice do not apply because relief is not
available under such sections with respect to such failure, the failure is not corrected
under such sections, or otherwise.
(c) On or before the end of the second taxable year during which the failure
occurred, the service provider repays to the service recipient the amount that was
erroneously paid or made available to the service provider.
(d) Immediately after such repayment, the service provider has a legally binding
right to receive such amount from the service recipient on the date that is that same
number of days after the amount is repaid as the number of days from the date the
service recipient made the erroneous payment to the service provider through the date
the amount would otherwise have been payable under the terms of the plan and the
applicable deferral election, and the repaid amount is not paid or made available to the
service provider before such date (for rules regarding the counting of days, see § III.H of
this notice).
3. Reporting and Withholding
The service recipient must report the erroneous payment as an amount includible
in income under § 409A on a Form W-2 (or Form W-2c), under Box 12, Code Z, or Form
1099 (or corrected Form 1099), as applicable, for the year in which the erroneous
payment was made. The service provider must include the amount of the erroneous
payment in income under § 409A on and pay the additional taxes under § 409A(a) with
an original or amended federal income tax return for the year in which the erroneous
payment was made, and not claim a deduction or other adjustment reflecting the

repayment for the year in which the service provider repays the amount to the service
recipient.
4. Adjustment for Earnings
For purposes of this § VII.C, the service provider's account balance or other
amount of deferred compensation under the plan may not be adjusted for earnings, but
may be adjusted for losses, retroactive to the date the amount was erroneously paid or
made available, provided that such adjustment must be made on or before the
applicable deadline for repayment.
5. Examples
In each of the following examples, it is assumed that Specified Employee is an
individual whose taxable year is the calendar year, at all relevant times Specified
Employee is a specified employee of Employer for purposes of § 409A(a)(2)(B)(i) and
an insider with respect to Employer as defined in § III.G of this notice, and Specified
Employee and Employer both satisfy the applicable requirements of §§ III and IX of this
notice.
Example 1
: Under a nonqualified deferred compensation plan sponsored by
Employer, Specified Employee has a legally binding right to a $100,000 payment of
deferred compensation on the first day of the seventh month following Specified
Employee's separation from service. Specified Employee separates from service on
November 15, 2008 so that the payment is due on June 1, 2009. Employer erroneously
pays Specified Employee $100,000 on April 1, 2009 (61 days before the due date).
Employer discovers the error on July 1, 2010, and Specified Employee repays the
$100,000 to Employer on July 1, 2010. Immediately after such repayment Specified

Employee has a legally binding right to receive $100,000 from Employer on August 31,
2010 (61 days after the July 1, 2010 repayment date) and Employer does not repay the
amount to Specified Employee before that date. Employer treats the payment as a
2009 wage payment for employment tax and reporting purposes, as appropriate,
including reporting as income and wages on the 2009 Form W-2. Employer must report
as income under § 409A on the 2009 Form W-2 (or 2009 Form W-2c), Box 12, using
Code Z, only the $100,000 payment, and Specified Employee is permitted to include in
income under § 409A for 2009 only $100,000. Furthermore, Specified Employee is
permitted to pay the additional 20% tax only with respect to the $100,000 (or $20,000 in
additional income tax), and is not required to pay the premium interest tax. The 2010
Form W-2 provided to Specified Employee must not reflect any reduction in income due
to the repayment, including if the repayment were made through the reduction in
compensation otherwise payable to Specified Employee, and Specified Employee is not
permitted a deduction or any other adjustment to the 2010 Form 1040 reflecting the
repayment. For 2010, Specified Employee is treated as having previously included in
income $100,000 of the amount deferred under the plan for purposes of § 409A(c).
Example 2
: Under a nonqualified deferred compensation plan sponsored by
Employer, Specified Employee has a legally binding right to a $100,000 payment of
deferred compensation on the specified date of July 1, 2009 (so that the payment is not
subject to § 409A(a)(2)(B)(i)). Employer erroneously pays Specified Employee the
$100,000 on May 1, 2009 (61 days before the due date). Employer discovers the error
on December 1, 2010, and Specified Employee repays the amount to Employer on
December 1, 2010. Immediately after such repayment Specified Employee has a

legally binding right to receive the amount from Employer on January 31, 2011 (61 days
after the December 1, 2010 repayment date) and Employer does not repay the amount
to Specified Employee before that date. Employer treats the 2009 payment as a wage
payment for employment tax and reporting purposes, as appropriate, including reporting
as income and wages on the 2009 Form W-2. Employer is permitted to report as
income under § 409A on the 2009 Form W-2 (or 2008 Form W-2c), Box 12, using Code
Z, only the $100,000 payment, and Specified Employee is permitted to include in
income under § 409A for 2009 only $100,000. Furthermore, Employee is permitted to
pay the additional 20% tax only with respect to the $100,000 (or $20,000 in additional
income tax), and is not required to pay the premium interest tax. The 2010 Form W-2
provided to Specified Employee must not reflect any reduction in income due to the
repayment, including if the repayment were made through the reduction in
compensation otherwise payable to Specified Employee, and Specified Employee is not
permitted a deduction or any other adjustment to the 2010 Form 1040 reflecting the
repayment. Beginning with the taxable year 2010, Specified Employee is treated as
having previously included in income $100,000 of the amount deferred under the plan
for purposes of § 409A(c).
D. Excess Deferred Amount not Corrected in the Same Taxable Year
1. Relief for Amounts to which § VII.D Applies
With respect to amounts to which § VII.D applies, the amount includible in
income under § 409A(a) as a result of a failure described in § VII.D.2(a) is limited to the
excess amount paid to the service provider, and does not include any other deferred
compensation under the plan, and the amount is includible in income only when paid to

the service provider in accordance with this section. In addition, with respect to this
amount includible in income under § 409A(a), the service provider is required to pay the
additional 20% tax, but is not required to pay the premium interest tax. Provided that
the service provider includes such amount in income, pays the additional taxes and
otherwise meets the requirements of this notice, for taxable years after the year of the
failure the amount is treated as previously included in income for purposes of § 409A(c).
2. Amounts to which § VII.D. Applies
This § VII.D applies if an operational failure occurs during a service provider's
taxable year that is described in § VII.D.2(a) and the requirements of § VII.D.2(b)
through (c) and §§ VII.D.3 and 4 are met.
(a) A failure is described in this § VII.D.2(a) if, under the terms of the plan and
any applicable deferral election, and § 409A, an amount of deferred compensation
under the plan should have been paid or made available to the service provider during
the service provider's taxable year, or an amount is treated as deferred compensation
under the plan that should have been paid or made available to the service provider
during the service provider's taxable year, but such amount erroneously is not paid or
made available to the service provider;
(b) Sections IV.C, V.D and VI.C of this notice do not apply because relief is not
available under such sections with respect to the failure, the failure is not corrected
under such sections, or otherwise;
(c) By the end of the service provider's second taxable year following the taxable
year during which the failure occurred, the service recipient pays the service provider
the amount that should have been paid or made available to the service provider.

3. Reporting and Withholding
The service recipient must report such payment on a Form W-2 (or Form W-2c)
or Form 1099 (or corrected Form 1099), as applicable, for the taxable year in which the
payment was scheduled to be made under the terms of the plan (or, in the case of an
amount that should not have been deferred, the taxable year in which the payment was
scheduled to be made but for the erroneous deferral). If the service recipient properly
reports the payment as includible in income under § 409A on a Form W-2, if applicable,
for the year in which the payment was scheduled to be made, including reporting such
amount on Form W-2, Box 12 using Code Z, the service recipient will not be subject to
penalties or liability for the failure to properly withhold under § 3402(d). The service
provider must include such amount in income on and pay the additional taxes under
§ 409A(a) with an original or amended federal income tax return for the taxable year in
which the payment was scheduled to be made under the terms of the plan (or, in the
case of an amount that should not have been deferred, the taxable year in which the
payment was scheduled to be made but for the erroneous deferral).
4. Adjustment for Earnings
The remaining account balance (or other deferred compensation under the plan)
must be adjusted for earnings and may be adjusted for losses retroactive to the date the
excess amount was incorrectly credited to the service provider's account or otherwise
incorrectly treated as deferred under the plan, provided that such adjustment must be
made on or before the last day of the service provider's taxable year in which such
amount was paid to the service provider under § VII.D.2(c). The service recipient may

not pay the service provider interest, or otherwise compensate the service provider for
the use of such funds.
5. Example
It is assumed for purposes of the following example that Employee is an
individual whose taxable year is the calendar year, at all relevant times Employee is an
insider with respect to Employee as defined in § III.G of this notice, and Employee and
Employer both satisfy the applicable requirements of §§ III and IX of this notice.
Example: Employee makes a timely election to defer 10% of a bonus payable in
2009 into an account balance plan. The bonus is $300,000. Employer erroneously
defers 20% of the bonus, or $60,000, and pays Employee $240,000 (instead of
deferring $30,000 and paying Employee $270,000). Employer discovers the error on
February 1, 2010, so that the excess deferred amount of $30,000 is not corrected by
December 31, 2009. On March 1, 2010, at which time Employee's account balance
includes $1,500 in earnings on the excess $30,000 credited to the account, Employer
pays Employee $30,000 and Employee forfeits the $1,500 in earnings. Employer
reports the $30,000 as income under § 409A on the 2009 Form W-2, Box 1 and Box 12,
using Code Z. Provided that Employee reports such income and pays the applicable
taxes, including the additional § 409A taxes, on a timely filed 2009 Form 1040 (or
amended 2009 Form 1040), and satisfies the other applicable requirements of this § VII,
Employee is permitted to include in income under § 409A only $30,000 and to pay only
the additional 20% tax (or $6,000 in additional income tax), and not the premium
interest tax. Beginning with the taxable year 2010, Specified Employee is treated as

having previously included in income $30,000 of the amount deferred under the plan for
purposes of § 409A(c).
VIII. SPECIAL TRANSITION RULE FOR NON-INSIDERS
With respect to a service provider that was not an insider at any time during the
service provider's taxable year in which a failure occurred, such service provider may
use the relief provided in § V.B, § V.C or § V.D of this notice with respect to an
operational failure addressed by such sections that occurred on or before December 31,
2007, in which case for purposes of applying such section the service provider's taxable
ending in 2009 will be treated as the taxable year next following the taxable year during
which the failure occurred. With respect to an erroneous early payment addressed by
§ V.B, if the original due date for the payment would have occurred on or before
December 31, 2009, the amount may be treated for purposes of applying § V.B as
otherwise payable under the terms of the plan during the year immediately following the
year of the failure for purposes of qualifying for the relief.
IX. INFORMATION AND REPORTING REQUIREMENTS
A. Information Required with Respect to Correction of an Operational Failure in the
Same Taxable Year as the Failure Occurs
A service recipient described in § IV of th is notice must attach to its timely-filed
(including extensions) original federal income tax return for its taxable year in which the
failure occurred a statement entitled "§ 409A Relief under § IV of Notice 2008-113"
setting out the information required by § IX.A.1 of this notice, and must provide to each
service provider affected by such failure a statement entitled "§ 409A Relief under § IV
of Notice 2008-113" setting out the information required by § IX.A.2 of this notice by no
later than the date (with extensions) on which it is required to provide an information

return (Form W-2 or Form 1099) to such service provider for the calendar year in which
such failure occurred (or if no information return is required for such service provider,
not later than the January 31 following the calendar year in which such failure occurred).
Notwithstanding the foregoing, to qualify for the relief described in § IV.D of this notice
(Correction of Exercise Price of Otherwise Excluded Stock Rights), the service recipient
is not required to provide a statement to such service provider with respect to such
failure. In addition, each taxpayer relying on the relief provided in § IV of this notice
must make reasonable efforts to provide notice to the examining agent upon the
commencement of an examination of such taxpayer's federal tax return that the
taxpayer was relying upon the relief provided under this notice for years covered by the
examination (except in the case of a service provider for whom a correction has been
made under § IV.D of this notice).
1. Attachment to Service Recipient Tax Return for Failures Described in § IV
The service recipient must attach a statement to its federal income tax return
stating that it is relying upon § IV of this notice with respect to a correction of a failure to
comply with § 409A and setting out the following information with respect to each such
failure:
(a) The name and taxpayer identification number of each service provider
affected by the failure and whether such service provider is an insider with respect to
the service recipient. Where the same or a substantially similar operational failure has
occurred with respect to multiple service providers, the information required in
§ IX.A.1(b) through (e) of this notice may be supplied only once with respect to such
operational failure, provided that the identification of each service provider affected by

the operational failure in this § IX.A.1(a) references such information and the amount
involved in the operational failure with respect to such service provider.
(b) Identification of the nonqualified deferred compensation plan with respect to
which such failure occurred.
(c) A brief description of the failure and the circumstances under which it
occurred, including the amount involved and date on which the failure occurred.
(d) A brief description of the steps taken to correct the failure and the date on
which such correction was completed.
(e) A statement that the operational failure is eligible for the correction under the
terms of this notice, and that the service recipient has taken all actions required, and
otherwise met all requirements, for such correction.
2. Information to be Provided to Service Provider for Failures Described in § IV
The service recipient must provide the following information to each service
provider affected by correction of a failure to comply with § 409A who is entitled to relief
under § IV of this notice (other than § IV.D of this notice (Correction of Exercise Price of
Otherwise Excluded Stock Rights)) with respect to such failure:
(a) A statement that the service provider is entitled to the relief provided in § IV
of this notice with respect to a failure to comply with § 409A.
(b) The information described in § IX.A.1(b) through (e) of this notice.
B. Information Required with Respect to Relief for Certain Operational Failures
A service recipient described in § V, § VI, or § VII of this notice must attach to its
timely-filed (including extensions) original federal income tax return for its taxable year
in which it discovers the failure, and for a service recipient described in § VIII of this
notice its timely-failed (including extensions) original federal income tax return for the

taxable year including January 1, 2009, a statement entitled "§ 409A Relief under
§ [INSERT APPROPRIATE SECTION] of Notice 2008-113" setting out the information
required by § IX.B.1 of this notice. In addition, not later than the date (with extensions)
on which it is required to provide an information return (Form W-2 or 1099) for the
calendar year in which it discovers such failure to a service provider who is affected by
such failure (or if no information return is required for such service provider, not later
than the January 31 following the calendar year in which it discovers such failure), or in
the case of a service recipient described in § VIII, not later than January 31, 2010, must
provide to each such service provider a statement entitled "§ 409A Relief under §
[INSERT APPROPRIATE SECTION] of Notice 2008-113" setting out the information
required by § IX.B.2 of this notice. A service provider who is relying on the relief
provided in § V, § VI, or § VII of this notice with respect to a failure to comply with
§ 409A must attach to the service provider's timely-filed (including extensions) original
federal income tax return for the year in which such failure was discovered (or for a
service provider who is relying on the relief provided in § VIII of this notice, the service
provider's timely-filed (including extensions) original federal income tax return for 2009)
the information required by § IX.B.3 of this notice. In addition, each taxpayer relying on
the relief provided in § V, § VI, § VII or § VIII of this notice must make reasonable efforts
to provide notice to the examining agent upon the commencement of an examination of
such taxpayer's federal tax return that the taxpayer was relying upon the relief provided
under this notice for years covered by the examination.

1. Attachment to Service Recipient Tax Return for Failures Described in § V,
§ VI, § VII or § VIII.
The service recipient must attach a statement to its return setting out the
following information with respect to each failure described in § V, § VI, § VII or § VIII of
this notice:
(a) The name and taxpayer identification number of each service provider
affected by the failure. Where the same or a substantially similar operational failure has
occurred with respect to multiple service providers, the information required in
§ IX.B.1(b) through (e) of this notice may be supplied only once with respect to such
operational failure, provided that the identification of each service provider affected by
the operational failure in this § IX.B.1(a) references such information and the amount
involved in the operational failure with respect to such service provider.
(b) Identification of the nonqualified deferred compensation plan with respect to
which such failure occurred.
(c) A brief description of the failure and the circumstances under which it
occurred, including the amount involved and date on which the failure occurred.
(d) A brief description of the steps taken by the service recipient to avoid a
recurrence of the failure, including the date on which such steps were implemented.
(e) A statement that the operational failure is eligible for the correction under the
terms of this notice, and that the service recipient has taken all actions required, and
otherwise met all requirements, for such correction.

2. Information to be Provided to Service Provider for Failures Described in § V,
§ VI, § VII or § VIII
The service recipient must provide the following information to each service
provider affected by a failure to comply with § 409A who is entitled to relief under § V,
§ VI, § VII or § VIII of this notice with respect to such failure:
(a) A statement that the service provider is entitled to the relief provided in § V,
§ VI, § VII, or § VIII of this notice (as applicable) with respect to a failure to comply with
§ 409A and that the service provider must attach a copy of the statement to the service
provider's income tax return for the taxable year in which the failure was discovered.
(b) The information described in § IX.B.1(b) through (e) of this notice.
3. Attachment to Service Provider Tax Return for Failures Described in § V, § VI,
§ VII or § VIII.
The service provider must attach to the service provider's income tax return a
copy of the statement the service provider received from the service recipient with
respect to each such failure.
X. EFFECT ON OTHER DOCUMENTS
For taxable years beginning on or after January 1, 2009, Notice 2007-100 is
obsoleted. Taxpayers may rely on this Notice 2008-113 for taxable years beginning
before January 1, 2009. For service recipients and service providers who are entitled to
relief under this notice, Notice 2006-100, 2006-51 IRB 1109 (relating to reporting and
wage withholding for 2006), and Notice 2007-89, 2007-46 IRB 998 (relating to reporting
and wage withholding for 2007), are modified to conform to the provisions of this notice
with respect to (i) the amount that is required to be included in income by a service
provider under section 409A(a), and (ii) the amount that is required to be reported by
the service recipient as an amount includible in income under section 409A(a) on Form

W-2, Box 1 and Box 12, using Code Z, or Form 1099-MISC, Box 7 and Box 15b, as
applicable.
XI. REQUEST FOR COMMENTS

The Treasury Department and the IRS ar e considering whether to extend the
ability of certain service providers to repay an incorrect payment of a deferred amount
over an extended period if the service provider would otherwise experience an
immediate and heavy financial need as defined in §1.401(k)-1(d)(3)(iii) due to the
repayment requirement to the relief provided in § VIII, subject to the service provider
submitting an appropriate extension of the statute of limitations on assessment with
respect to the taxable year in which the failure occurred. Comments are requested on
all aspects of such potential relief, including whether such relief would be utilized and
how such relief would be implemented.
The Treasury Department and the IRS are also considering whether a program
providing relief in the case of a plan document failure that is brought into compliance
with § 409A would be both feasible and advisable. To the extent such a program is
adopted, the Treasury Department and the IRS intend that such guidance not allow
taxpayers who sponsor or participate in a noncompliant plan an advantage in
comparison to taxpayers who sponsor or participate in a compliant plan, by providing
the sponsor of, or the participants in, the noncompliant plan greater flexibility to change
the time and form of payment of deferred amounts than would have been available if no
such plan document failure had occurred. In addition, the Treasury Department and the
IRS intend that such a program maintain strong incentives for taxpayers to comply in full
with the requirements of § 409A.

The Treasury Department and the IRS request comments on all aspects of such
a potential program, including how such a program would apply to provisions governing
the timing of deferral elections as well as provisions governing the times and forms of
payments of amounts deferred. The Treasury Department and the IRS specifically
request comments on the following issues:
š What types of failures woul d be eligible for the relief (and what types of failures
would not be eligible for the relief)?
š Should relief be limited to minor or nonmaterial errors and if so how would the
materiality of a failure be determined?
š To the extent eligibilit y for the relief is contingent upon whether a noncompliant
plan provision has been put into effect, or whether a noncompliant plan provision
is applicable to or affects an amount deferred, what standards would apply to
determine whether such a noncompliant plan provision has been put into effect
or otherwise applies to or affects an amount deferred?
š What rules would govern the appropriate correction for the noncompliant plan
provision and how would such rules avoid granting an impermissible late
subsequent deferral election or election to accelerate a payment?
š How would the correction and relief apply if the correction were made during the
service provider's taxable year and would there be any distinction between
amounts deferred before the correction and amounts deferred in the same year
but after the correction?
š What information would service provi ders and service recipients be required to
file with the IRS to make use of such correction procedure?

š What procedure would service recipients be required to implement to prevent a
recurrence of the same or a substantially similar plan document failure?
Comments must be submitted by March 6, 2009. All materials submitted will be
available for public inspection and copying. Comments may be submitted to Internal
Revenue Service, CC:PA:LPD:RU (Notice 2008-113), Room 5203, PO Box 7604, Ben
Franklin Station, Washington, DC 20044. Submissions may also be hand-delivered
Monday through Friday between the hours of 8 a.m. and 4 p.m. to the Courier's Desk at
1111 Constitution Avenue, NW, Washington, DC 20224, Attn: CC:PA:LPD:RU (Notice
2008-113), Room 5203. Submissions may also be sent electronically via the internet to
the following email address: Notice.comments@irscounsel.treas.gov
. Include the
notice number (Notice 2008-113) in the subject line.
XII. PAPERWORK REDUCTION ACT

The collection of information contai ned in this notice has been reviewed and
approved by the Office of Management and Budget in accordance with the Paperwork
Reduction Act (44 USC. 3507) under control number 1545-2086.
An agency may not conduct or sponsor, and a person is not required to respond
to, a collection of information unless the collection of information displays a valid control
number.
The collection of information in this notice is in § IX. This information is required
to determine whether the taxpayers claiming the relief are eligible for the relief and that
the applicable requirements for relief are met. The likely respondents are corporations
and individuals.
The estimated annual reporting and/or re cordkeeping burden is 5,000 hours.

The estimated annual burden per res pondent/recordkeeper is .5 hours.
The estimated number of respondents is 10,000.
The estimated annual frequency of response is on occasion.
Books or records relating to a collection of information must be retained as long as their
contents may become material in the administration of any internal revenue law.
Generally, tax return and tax return information are confidential, as required by § 6103.
XIII. DRAFTING INFORMATION
The principal author of this notice is Stephen Tackney of the Office of Division
Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), although
other Treasury and IRS officials participated in its development. For further information
on the provisions of this notice, contact Stephen Tackney at (202) 927-9639 (not a toll-
free number).