2008 was to be the year that companies and their tax advisors worked to get their nonqualified deferred-compensation plans in order to comply with the new requirements under Code Section 409A and the regulations thereunder. Recent positions from the Internal Revenue Service are, however, expanding the focus of compensation concerns for 2008 beyond deferred compensation to include deductions for current performance-based compensation.BACKGROUND

Code Sec. 162(m) limits the deductibility of compensation paid to certain executives of publicly traded corporations to $1 million per year. Compensation for this purpose is described as “applicable employee remuneration” and, under Code Sec. 162(m)(4)(c), does not include any remuneration payable solely on account of the attainment of one or more performance goals established using the criteria specified in the statute.

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