In Rev. Proc. 2008-61, the IRS notes that Section 5 of Rev. Proc. 2008-3 lists specific areas for which the Service temporarily is not issuing rulings and determinations because those matters are under study. The Service said it will continue not to issue rulings concerning the income tax consequences of establishing, operating, or participating in a nonqualified deferred compensation plan described in §409A, but it generally will rule on the application of certain other tax law provisions (such as FICA and estate and gift taxes) to taxpayers who participate in those plans.
Specifically, the IRS said, rulings will not be issued with respect to:
- the income tax (including income tax withholding) consequences of establishing, operating, or participating in a nonqualified deferred compensation plan as defined in §1.409A-1(a);
- whether a plan is described in § 1.409A-1(a)(3)(iv) (certain plans subject to a totalization agreement and similar plans) or § 1.409A-1(a)(3)(v) (certain broad-based foreign retirement plans);
- whether a plan is a bona fide vacation leave, sick leave, or compensatory time plan described in § 1.409A-1(a)(5); and
- whether a plan provides for the deferral of compensation under § 1.409A-1(b) (including whether an amount is a short-term deferral and whether certain stock rights, foreign plans, and separation pay plans are subject to §409A).
Rev. Proc. 2008-61 applies to rulings and determination letters issued after September 25, 2008. It is available here.