TaxProf blogger Paul Caron points to this article by Gregg Polsky of UNC, entitled “Fixing Section 409A: Legislative and Administrative Options.” The opening paragraph of the abstract is amusing, and, I suspect, something many executive compensation lawyers and other practitioners would heartily agree with:
This [article] … describes the legislative calamity that is § 409A of the Internal Revenue Code. Section 409A manages, all at once, to (i) fail to better neutralize the tax treatment of deferred compensation with that of current compensation, (ii) impose significant compliance costs on sophisticated taxpayers, and (iii) provide a dangerous trap for unsophisticated taxpayers.
One interesting fix that Polsky proposes would be amending Section 409A to make it applicable only to public companies.