118 STAT. 1640 PUBLIC LAW 108–357—OCT. 22, 2004 ‘‘The term ‘wages’ includes any amount includible in gross income of an employee under section 409A and payment of such amount shall be treated as having been made in the taxable year in which the amount is so includible.’’. (3) OTHER REPORTING.—Section 6041 (relating to informa tion at source) is amended by adding at the end the following new subsection: ‘‘(g) NONQUALIFIED DEFERRED COMPENSATION.—Subsection (a) shall apply to— ‘‘(1) any deferrals for the year under a nonqualified deferred compensation plan (within the meaning of section 409A(d)), whether or not paid, except that this paragraph shall not apply to deferrals which are required to be reported under section 6051(a)(13) (without regard to any de minimis exception), and ‘‘(2) any amount includible under section 409A and which is not treated as wages under section 3401(a).’’. (c) CLERICAL AMENDMENT.—The table of sections for such sub part A of part I of subchapter D of chapter 1 is amended by adding at the end the following new item: ‘‘Sec. 409A. Inclusion in gross income of deferred compensation under non qualified deferred compensation plans.’’. (d) EFFECTIVE DATE.— (1) IN GENERAL.—The amendments made by this section shall apply to amounts deferred after December 31, 2004. (2) SPECIAL RULES.— (A) EARNINGS.—The amendments made by this section shall apply to earnings on deferred compensation only to the extent that such amendments apply to such compensa tion. (B) MATERIAL MODIFICATIONS.—For purposes of this subsection, amounts deferred in taxable years beginning before January 1, 2005, shall be treated as amounts deferred in a taxable year beginning on or after such date if the plan under which the deferral is made is materially modified after October 3, 2004, unless such modification is pursuant to the guidance issued under subsection (f). (3) EXCEPTION FOR NONELECTIVE DEFERRED COMPENSA TION.—The amendments made by this section shall not apply to any nonelective deferred compensation to which section 457 of the Internal Revenue Code of 1986 does not apply by reason of section 457(e)(12) of such Code, but only if such compensation is provided under a nonqualified deferred compensation plan— (A) which was in existence on May 1, 2004, (B) which was providing nonelective deferred com pensation described in such section 457(e)(12) on such date, and (C) which is established or maintained by an organiza tion incorporated on July 2, 1974. If, after May 1, 2004, a plan described in the preceding sentence adopts a plan amendment which provides a material change in the classes of individuals eligible to participate in the plan, this paragraph shall not apply to any nonelective deferred compensation provided under the plan on or after the date of the adoption of the amendment. (e) GUIDANCE RELATING TO CHANGE OF OWNERSHIP OR CON TROL.—Not later than 90 days after the date of the enactment of this Act, the Secretary of the Treasury shall issue guidance Deadline. 26 USC 409A note. 26 USC 409A note. Applicability. 26 USC 6041.
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