Details of Vote on EESA

Gov Track has the details of the vote on the Emergency Economic Stabilization Act here.

Two Important IRS Promulgations

Almost got missed in all of the economic upheaval:

  • Notice 2008-82: Contains guidance regarding new Internal Revenue Code subsection 125(h) which provides that a plan or other arrangement does not fail to be a cafeteria plan or health FSA merely because the arrangement allows “qualified reservist distributions” (QRDs–A new benefits acronym) to an employee of all or a portion of the balance of the employee’s unused amounts in the health FSA.

  • Rev. Proc. 2008-61: The Service had previously provided in Rev. Proc. 2008-3 that it would not issue private letter rulings pertaining to nonqualified deferred compensation arrangements under Section 409A. It has decided to lift this ban as it pertains to certain estate and gift tax and FICA issues relating to such plans.

  • The Treasury has issued FAQs concerning the government’s recently announced guarantee program for money market funds. Excerpt:

    How will investors know if their money market fund participates in the program?

    Investors should contact their money market fund directly to determine if it is participating in the program.

    Also:

    How much of an investor’s money market fund is insured? What happens if the number of shares held in an investor’s account increase above the level at the close of business on September 19, 2008? What happens if the number of shares held in an investor’s account decreases below the level at the close of business on September 19, 2008?

    The program provides a guarantee based on the number of shares held at the close of business on September 19, 2008. Any increase in the number of shares held in an account after the close of business on September 19, 2008 will not be guaranteed. If the number of shares held in an account fluctuates over the period, investors will be covered for either the number of shares held as of the close of business on September 19, 2008 or the current amount, whichever is less.

    See also:

  • Frequently Asked Questions about Money Market Funds from the Investment Company Institute.
  • ICI Answers Questions on Money Market Funds from Plan Sponsor.

    http://www.benefitscounsel.com/001881/

  • House of Representatives Votes No to Emergency Economic Stabilization Act

    The vote was 205 for and 228 against. House rejects $700 billion financial bailout

    Michelle's Law Passed by the Senate

    The Senate has passed “Michelle’s Law” (H.R. 2851) by unanimous consent on September 25, 2008. The bill would provide the extension of existing health insurance coverage to dependant college students for up to one year in the event of a medically necessary leave of absence by amending the Employee Retirement Income Security Act of 1974, the Public Health Service Act, and the Internal Revenue Code of 1986. The bill is expected to be signed by the President.

    Effective Date: Plan years beginning on or after the date that is one year after the date of enactment and to medically necessary leaves of absence that begin during such plan years.

    More from this press release from John Sununu (R-NH) here.

    New Rescue Legislation Allows the Government to Buy Troubled Assets from Retirement Plans

    A very interesting aspect of the Emergency Economic Stabilization Act of 2008 is that it would appear to allow the government to purchase troubled assets from “eligible retirement plans.” Here is the language:

    SEC. 103. CONSIDERATIONS. In exercising the authorities granted in this Act, the Secretary shall take into consideration—

    . . . (8) protecting the retirement security of Americans by purchasing troubled assets held by or on behalf of an eligible retirement plan described in clause (iii), (iv), (v), or (vi) of section 402(c)(8)(B) of the Internal Revenue Code of 1986, except that such authority shall not extend to any compensation arrangements subject to section 409A of such Code;. . .

    Emergency Economic Stabilization Act of 2008: Executive Compensation Provisions

    The House Financial Services Committee has released a draft of the proposed rescue legislation. The bill is now entitled the “Emergency Economic Stabilization Act of 2008” and contains much more lengthy executive compensation provisions than previously contemplated versions. (UPDATE: The Tax Prof has a good summary here.) The executive compensation provisions are as follows:

    (a) APPLICABILITY.—Any financial institution that sells troubled assets to the Secretary under this Act shall be subject to the executive compensation requirements of subsections (b) and (c) and the provisions under the Internal Revenue Code of 1986, as provided under the amendment by section 302, as applicable.

    (Click on the link that follows to continue reading the provisions.)

    (b) DIRECT PURCHASES.—

       (1) IN GENERAL.—Where the Secretary determines that the purposes of this Act are best met through direct purchases of troubled assets from an individual financial institution where no bidding rocess or market prices are available, and the Secretary receives a meaningful equity or debt position in the financial institution as a result of the transaction, the Secretary shall require that the financial institution meet appropriate standards for executive compensation and corporate governance. The standards required under this subsection shall be effective for the duration of the period that the Secretary holds an equity or debt position in the financial institution.

       (2) CRITERIA.—The standards required under this subsection shall include—

          (A) limits on compensation that exclude incentives for executive officers of a financial institution to take unnecessary and excessive risks that threaten the value of the financial institution during the period that the Secretary holds an equity or debt position in the financial institution;

          (B) a provision for the recovery by the financial institution of any bonus or incentive compensation paid to a senior executive officer based on statements of earnings, gains, or other criteria that are later proven to be materially inaccurate; and

          (C) a prohibition on the financial institution making any golden parachute payment to its senior executive officer during the period that the Secretary holds an equity or debt position in the financial institution.

       (3) DEFINITION.—For purposes of this section, the term ‘‘senior executive officer’’ means an individual who is one of the top 5 executives of a public company, whose compensated is required to be disclosed pursuant to the Securities Exchange Act of 1934, and any regulations issued thereunder, and non-public company counterparts.

    (c) AUCTION PURCHASES.—Where the Secretary determines that the purposes of this Act are best met through auction purchases of troubled assets, and only where such purchases per financial institution, in the aggregate exceed $300,000,000 (including direct purchases), the Secretary shall prohibit, for such financial institution, any new employment contract with a senior executive officer that provides a golden parachute in the event of an involuntary termination, bankruptcy filing, insolvency, or receivership. The Secretary shall issue guidance to carry out this paragraph not later than 2 months after the date of enactment of this Act, and such guidance shall be effective upon issuance.

    (d) SUNSET.—The provisions of subsection (c) shall apply only to arrangements entered into during the period during which the authorities under section 101(a) are in effect, as determined under section 120.

    The bill also provides for tax rules regarding the tax treatment of executive compensation of employers participating in the program:

    SEC. 302. SPECIAL RULES FOR TAX TREATMENT OF EXECUTIVE COMPENSATION OF EMPLOYERS PARTICIPATING IN THE TROUBLED ASSETS RELIEF PROGRAM.

    (a) DENIAL OF DEDUCTION.—Subsection (m) of section 162 of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:

       (5) SPECIAL RULE FOR APPLICATION TO EMPLOYERS PARTICIPATING IN THE TROUBLED ASSETS RELIEF PROGRAM.—

          (A) IN GENERAL.—In the case of an applicable employer, no deduction shall be allowed under this chapter—

             (i) in the case of executive remuneration for any applicable taxable year which is attributable to services performed by a covered executive during such applicable taxable year, to the extent that the amount of such remuneration exceeds $500,000, or

             (ii) in the case of deferred deduction executive remuneration for any taxable year for services performed during any applicable taxable year by a covered executive, to the extent that the amount of such remuneration exceeds $500,000 reduced (but not below zero) by the sum of—

                   (I) the executive remuneration for such applicable taxable year, plus

                   (II) the portion of the deferred deduction executive remuneration for such services which was taken into account under this clause in a preceding taxable year.

            (B) APPLICABLE EMPLOYER.—For purposes of this paragraph—

                   (i) IN GENERAL.—Except as provided in clause (ii), the term ‘applicable employer’ means any employer from whom 1 or more troubled assets are acquired under a program established by the Secretary under section 101(a) of the Emergency Economic Stabilization Act of 2008 if the aggregate amount of the assets so acquired for all taxable years exceeds $300,000,000.

                   (ii) DISREGARD OF CERTAIN ASSETS SOLD THROUGH DIRECT PURCHASE.—If the only sales of troubled assets by an employer under the program described in clause (i) are through 1 or more direct purchases (within the meaning of section 113(c) of the Emergency Economic Stabilization Act of 2008), such assets shall not be taken into account under clause (i) in determining whether the employer is an applicable employer for purposes of this paragraph.

                   (iii) AGGREGATION RULES.—Two or more persons who are treated as a single employer under subsection (b) or (c) of section 414 shall be treated as a single employer, except that in applying section 1563(a) for purposes of either such subsection, paragraphs (2) and (3) thereof shall be disregarded.

             (C) APPLICABLE TAXABLE YEAR means, with respect to any employer—

                   (i) the first taxable year of the employer—

                      (I) which includes any portion of the period during which the authorities under section 101(a) of the Emergency Economic Stabilization Act of 2008 are in effect (determined under section 120 thereof), and

                      (II) in which the aggregate amount of troubled Assets acquired from the employer during the taxable year pursuant to such authorities (other than assets to which subparagraph (B)(ii) applies), when added to the aggregate amount so acquired for all preceding taxable years, exceeds $300,000,000, and

                    (ii) any subsequent taxable year which includes any portion of such period.

               (D) COVERED EXECUTIVE.—For purposes of this paragraph,

                   (i) IN GENERAL.—The term ‘covered executive’ means, with respect to any applicable taxable year, any employee—

                         (I) who, at any time during the portion of the taxable year during which the authorities under section 101(a) of the Emergency Economic Stabilization Act of 2008 are in effect (determined under section 120 thereof), is the chief executive officer of the applicable employer or the chief financial officer of the applicable employer, or an individual acting in either such capacity, or ‘

                         (II) who is described in clause (ii).

                    (ii) HIGHEST COMPENSATED EMPLOYEES.—An employee is described in this clause if the employee is 1 of the 3 highest compensated officers of the applicable employer for the taxable year (other than an individual described in clause (i)(I)), determined—

                         (I) on the basis of the shareholder disclosure rules for compensation under the Securities Exchange Act of 1934 (without regard to whether those rules apply to the employer), and

                         (II) by only taking into account employees employed during the portion of the taxable year described in clause (i)(I).

                     (iii) EMPLOYEE REMAINS COVERED EXECUTIVE.—If an employee is a covered executive with respect to an applicable employer for any applicable taxable year, such employee shall be treated as a covered executive with respect to such employer for all subsequent applicable taxable years and for all subsequent taxable years in which deferred deduction executive remuneration with respect to services performed in all such applicable taxable years would (but for this paragraph) be deductible.

                (E) EXECUTIVE REMUNERATION.—For purposes of this paragraph, the term ‘executive remuneration’ means the applicable employee remuneration of the covered executive, as determined under paragraph (4) without regard to subparagraphs (B), (C), and (D) thereof. Such term shall not include any deferred deduction executive remuneration with respect to services performed in a prior applicable taxable year.

                (F) DEFERRED DEDUCTION EXECUTIVE REMUNERATION.—For purposes of this paragraph, the term ‘deferred deduction executive remuneration’ means remuneration which would be executive remuneration for services performed in an applicable taxable year but for the fact that the deduction under this chapter (determined without regard to this paragraph) for such remuneration is allowable in a subsequent taxable year.

                (G) COORDINATION.—Rules similar to the rules of subparagraphs (F) and (G) of paragraph (4) shall apply for purposes of this paragraph.

                (H) REGULATORY AUTHORITY.—The Secretary may prescribe such guidance, rules, or regulations as are necessary to carry out the purposes of this paragraph and the Emergency Economic Stabilization Act of 2008, including the extent to which this paragraph applies in the case of any acquisition, merger, or reorganization of an applicable employer.

    (b) GOLDEN PARACHUTE RULE.—Section 280G of the Internal Revenue Code of 1986 is amended—

             (1) by redesignating subsection (e) as subsection (f), and

             (2) by inserting after subsection (d) the following new subsection:

          (e) SPECIAL RULE FOR APPLICATION TO EMPLOYERS PARTICIPATING IN THE TROUBLED ASSETS RELIEF PROGRAM.—

                (1) IN GENERAL.—In the case of the severance from employment of a covered executive of an applicable employer during the period during which the authorities under section 101(a) of the Emergency Economic Stabilization Act of 2008 are in    effect (determined under section 120 of such Act), this section shall be applied to payments to such executive with the following modifications:

                      (A) Any reference to a disqualified individual (other than in subsection (c)) shall be treated as a reference to a covered executive.

                      (B) Any reference to a change described in subsection (b)(2)(A)(i) shall be treated as a reference to an applicable severance from employment of a covered executive, and any reference to a payment contingent on such a change shall be treated as a reference to any payment made during an applicable taxable year of the employer on account of such applicable severance from employment.

                      (C) Any reference to a corporation shall be treated as a reference to an applicable employer.

                      (D) The provisions of subsections (b)(2)(C), (b)(4), (b)(5), and (d)(5) shall not apply.

                (2) DEFINITIONS AND SPECIAL RULES.—For purposes of this subsection:

                      (A) DEFINITIONS.—Any term used in this subsection which is also used in section 162(m)(5) shall have the meaning given such term by such section.

                      (B) APPLICABLE SEVERANCE FROM EMPLOYMENT.—The term ‘applicable severance from employment’ means any severance from employment of a covered executive—

                            (i) by reason of an involuntary termination of the executive by the employer, or

                            (ii) in connection with any bankruptcy, liquidation, or receivership of the employer.

                      (C) COORDINATION AND OTHER RULES.—

                            (i) IN GENERAL.—If a payment which is treated as a parachute payment by reason of this subsection is also a parachute payment determined without regard to this subsection, this subsection shall not apply to such payment.

                            (ii) REGULATORY AUTHORITY.—The Secretary may prescribe such guidance, rules, or regulations as are necessary—

                                  (I) to carry out the purposes of this subsection and the Emergency Economic Stabilization Act of 2008, including the extent to which this subsection applies in the case of any acquisition, merger, or reorganization of an applicable employer,

                                  (II) to apply this section and section 4999 in cases where one or more payments with respect to any individual are treated as parachute pay-ments by reason of this subsection, and other payments with respect to such individual are treated as parachute payments under this section without regard to this subsection, and

                                  (III) to prevent the avoidance of the application of this section through the mischaracterization of a severance from employment as other than an applicable severance from employment.

    (c) EFFECTIVE DATES.—

                (1) IN GENERAL.—The amendment made by subsection (a) shall apply to taxable years ending on or after the date of the enactment of this Act.

                (2) GOLDEN PARACHUTE RULE.—The amendments made by subsection (b) shall apply to payments with respect to severances occurring during the period during which the authorities under section 101(a) of this Act are in effect (determined under section 120 of this Act).

    Side-by-Side Comparison of Rescue Legislation

    Apparently, House Republican Roy Blunt’s office has provided this outline describing the bailout proposal which inclues a brief description of the executive compensation provisions. (From the DC Examiner)

    Negotiations on Bailout Legislation

    Business Week has the full text of the memo that staffers presented to the Congressional leaders for the final round of negotiations in the bailout legislation here.

    Retirement Plans and Company Stock Woes

    From the Wall Street Journal, “Wall Street Lays Egg With Its Nest Eggs: Retirement Lessons of the Dumb Moves by ‘Smart Money’

    In the past week, Merrill Lynch’s Web site still displayed an article, “Understanding Your Entire Portfolio,” full of sensible advice. If shares in your employer’s stock are “a significant portion of your investments,” it said, “you’ll want to consider the potential impact of a falling stock price on your portfolio.”

    Physician, heal thyself.

    At the end of 2006, Merrill employees had 27% of all their retirement money in Merrill shares. In 2007, Merrill employees lost $669.8 million on their holdings of Merrill, and so far this year, probably at least $400 million.

    Over at Morgan Stanley, employees lost some $500 million on their 401(k) holdings of company stock in 2007 and appear to be down at least that much this year. At Lehman Brothers Holdings, employees saving for retirement lost “only” about $200 million on their own shares in the past year and a half.