Should You Consider a Nonqualified Deferred Compensation Plan?

by R. Scott Nicholls, Senior Client Manager

Nonqualified deferred compensation plan is an employer-sponsored benefit for Key Employees you choose.  It’s essentially an agreement between the company and selected Key Employees.

Those who participate defer a portion of their annual compensation into the plan before taxes.  Based on this the company promises to distribute the deferred funds, plus any earnings and additional employer contributions, to them at a future date.

One of the primary reasons why employers adopt a NQDC plan is to address the retirement gap for C-suite and highly compensated employees due to the annual 401(k) limits.  Another key reason is to restore 401(k) contributions that have been returned or restricted due to non-discrimination testing failures.

When evaluating if a NQDC plan is right for your firm, one of the main indicators if this type of plan would be successful or not, is to look at current contribution amounts.  If your highly compensated top employees are not maxing out their 401(k) plan currently, then chances are they can’t afford to defer additional amounts into a NQDC plan.  On the other hand, they may not be aware they can defer more so you may have to survey this group to get an idea if it would be utilized or not.

The benefits of this type of plan are summarized below.

  • The tax experience is similar to a 401(k) plan
  • Participants can design a personalized investment strategy
  • Employee deferrals are unlimited
  • Employer contributions are unlimited
  • Selective participation
  • Unlimited vesting designs
  • No age 59.5 or age 70.5 penalties
  • In-Service distributions (pre-retirement)

Although there are numerous benefits to a NQDC plan, there are also some very important considerations that must be taken into account.  One of the most important ones is listed at the top.

  • Participant accounts in the plan are not protected in the event of bankruptcy
  • There are deferred tax deductions for the corporation until benefits are paid
  • An employer must be willing to be a Plan Sponsor
  • These are not ERISA plans but there are 409A regulations that must be followed very carefully
  • “Top Hat” eligibility
    • Highly Compensated
    • Management employees
    • Typically offered to 5-10% of total employees

Let’s now turn our attention to the primary uses for this type of plan.

Taxation Timing

Taxation timing is probably the most advantageous next to the unlimited deferral amount.  NQDC plans help employees manage the impact of taxes using the plan’s flexibility based on when benefits are paid.

Eligible Key Employees may use NQDC plans to choose when they receive the deferred income including the option to take installments.  They can also delay distributions beyond the originally scheduled timing if their tax situation changes unexpectantly.

Participants have the ability to coordinate the timing of receiving deferred comp income with Social Security or other benefits such as a 401(k) plan.  Often times participants will fund their retirement with deferred comp first, then receive Social Security and 401(k) plan benefits later.  Participants can delay receiving deferred comp income while they are working and their marginal tax rates are high and instead receive income during retirement when their average tax rate may be lower.  Income tax is payable in the year money is actually received by the Key Employee.

This is where the taxation timing and marginal versus effective tax rate should be considered.

Marginal Tax Rate is the percentage of tax paid on the next dollar of incremental taxable income.  This tax rate would typically apply to any current deferrals, as each dollar of deferral is coming off the top of the total taxable income.

Effective Tax Rate is the tax paid in total divided by total taxable income on the distribution.  This takes into account all tax brackets affecting the distributions to the taxpayer.  These tax brackets would typically apply to distributions from deferred comp plans in the early years of retirement, when many participants use as a primary source of retirement income.

Compensation Management

Corporations can use discretionary employer contributions based on the particular needs of the organization.

Recruitment – Strive to attract key performers to the organization via signing bonuses tied to a fixed period of tenure or business objectives.

Retention – Structure incentive bonuses, sometimes referred to as “golden handcuffs.” Utilize vesting schedules to make it appealing for key employees to stay with the organization.

Rewards –Aim to drive both organizational and personal performance by offering incentive-based contributions to the plan.

Retirement – Restore company match benefits disallowed in qualified plans due to ADP/ACP testing and/or compensation limits.

Other Planning Opportunities

Deferred comp plans can be valuable to an organization planning for the future.  These plans can be very flexible and offer numerous options:

  • Provide an ownership experience for key employees
  • Create phantom stock values
  • Share value goes up and down based on the valuation of the company
  • Create opportunities for key employees to be potential future owners
  • Insider Transition for key employees
  • Setting an account to vest and pay on a “change in control” of the company
  • This not only provides incentives for key employees it retains options for current owner

In closing, NQDC can serve as a differentiator when trying to attract and retain top talent especially for smaller firms since typically only large organization offer these types of plans.  Oswald Financial can help with the initial evaluation to determine if this type of plan would be suitable for your company.  In addition, we can help determine appropriate providers to administer this type of plan to align with your long-term financial goals and to supplement your benefits offering package.

If you would like additional information please contact your financial advisor or call Oswald Financial at 216-367-8752.


This information is not intended as authoritative guidance or tax or legal advice. You should consult your attorney or tax advisor for guidance on your specific situation.

Securities offered through LPL Financial, Member FINRA/SIPC. Investment advice offered through Oswald Financial, LLC a registered investment advisor and separate entity from LPL Financial.