As you can see, an employment contract can become a virtual obstacle course under Section 409A if the concept of misappropriated remuneration is not carefully respected. In our next contribution, we will focus on other forms of uns skilled wage conversion. The practical problem with the time limitation obligation under Article 409A is that a worker must wait until the fixed date to obtain her severance pay, even if she signs the dismissal prematurely. § 409A allows payment to be made up to 30 days before the date indicated in the termination agreement, without there being any violation of Article 409A. One of the points to remember is that the employee concerned may not be able to indicate or determine the year of payment of severance pay. Ten years ago, with the adoption of Section 409A of the Internal Revenue Code, the rules relating to unqualified royalty conversion agreements were significantly changed. It also involves how we look at redundancy agreements. As a general rule, Section 409A applies to allowances or benefits in kind that are paid in one year for benefits provided and paid in a subsequent year. Termination agreements or separation plans are subject either to Article 409A or to the exception of Article 409A. If a termination indemnity agreement is excluded from Article 409A, the agreement must not meet all the technical requirements of § 409A, including definitions of key concepts, date and form of distribution, etc. The agreement and the management of the agreement are also exempt from any tax penalty referred to in section 409A in relation to non-compliance.
As a general rule, a severance pay agreement requires the signing of a release of rights and not the withdrawal by the employee who resigns. In the event that a severance pay agreement is covered by Article 409A, the contract shall indicate a specific date for the severance pay or the start date of the severance pay. The agreement must indicate the date on which the authorization must be signed in a manner consistent with section 409A. For example, severance pay may provide that severance pay begins on a fixed date, provided that the employee signs the release before that date and does not withdraw it. To determine a fixed date, you must consider the period that the employee must determine to verify an authorization before signing the release and not revoking it. If a termination agreement is covered by one of the exceptions provided for in Article 409A, the date of signature of an release and payment after the expiry of the withdrawal period of a release is not an issue. Given that many termination agreements may have difficulty complying with Article 409A and that the penalties for non-compliance are so severe, the first question should be whether any of the exceptions provided for in Article 409A are available. . . .