Internal Revenue Code section 409A(b)(3) of the Pension Protection Act of 2006 (PPA) creates a mandatory funding connection between a plan sponsor's defined benefit (DB) plan and any nonqualified deferred compensation plan (NDCP) it maintains. Sponsors are prohibited from "funding" an NDCP for certain highly-paid employees if circumstances arise that either actually or potentially jeopardize their DB plan's funding status. In the absence of clarifying guidance, the rule leaves a number of questions unanswered. Sponsors should examine their DB plans' funding status and future funding strategies as soon as possible to avoid potential 409A noncompliance.
The DB and NDCP funding conundrum