118 STAT. 1639 PUBLIC LAW 108–357—OCT. 22, 2004 ‘‘(A) any plan, contract, pension, account, or trust described in subparagraph (A) or (B) of section 219(g)(5) (without regard to subparagraph (A)(iii)), ‘‘(B) any eligible deferred compensation plan (within the meaning of section 457(b)), and ‘‘(C) any plan described in section 415(m). ‘‘(3) PLAN INCLUDES ARRANGEMENTS, ETC.—The term ‘plan’ includes any agreement or arrangement, including an agree ment or arrangement that includes one person. ‘‘(4) SUBSTANTIAL RISK OF FORFEITURE.—The rights of a person to compensation are subject to a substantial risk of forfeiture if such person’s rights to such compensation are conditioned upon the future performance of substantial services by any individual. ‘‘(5) TREATMENT OF EARNINGS.—References to deferred com pensation shall be treated as including references to income (whether actual or notional) attributable to such compensation or such income. ‘‘(6) AGGREGATION RULES.—Except as provided by the Sec retary, rules similar to the rules of subsections (b) and (c) of section 414 shall apply. ‘‘(e) REGULATIONS.—The Secretary shall prescribe such regula tions as may be necessary or appropriate to carry out the purposes of this section, including regulations— ‘‘(1) providing for the determination of amounts of deferral in the case of a nonqualified deferred compensation plan which is a defined benefit plan, ‘‘(2) relating to changes in the ownership and control of a corporation or assets of a corporation for purposes of sub section (a)(2)(A)(v), ‘‘(3) exempting arrangements from the application of sub section (b) if such arrangements will not result in an improper deferral of United States tax and will not result in assets being effectively beyond the reach of creditors, ‘‘(4) defining financial health for purposes of subsection (b)(2), and ‘‘(5) disregarding a substantial risk of forfeiture in cases where necessary to carry out the purposes of this section.’’. (b) TREATMENT OF DEFERRED AMOUNTS.— (1) W–2 FORMS.— (A) IN GENERAL.—Subsection (a) of section 6051 (relating to receipts for employees) is amended by striking ‘‘and’’ at the end of paragraph (11), by striking the period at the end of paragraph (12) and inserting ‘‘, and’’, and by inserting after paragraph (12) the following new para graph: ‘‘(13) the total amount of deferrals for the year under a nonqualified deferred compensation plan (within the meaning of section 409A(d)).’’. (B) THRESHOLD.—Subsection (a) of section 6051 is amended by adding at the end the following: ‘‘In the case of the amounts required to be shown by paragraph (13), the Secretary may (by regulation) establish a minimum amount of deferrals below which paragraph (13) does not apply.’’. (2) WAGE WITHHOLDING.—Section 3401(a) (defining wages) is amended by adding at the end the following flush sentence: Applicability.
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