Long-awaited guidance on Section 162(m) of the Internal Revenue Code (the “Code”), has finally arrived. On August 21, 2018, the IRS issued Notice 2018-68, which provides guidance on certain changes made to Section 162(m) by the Tax Cuts and Jobs Act (the “Act”). The guidance is limited to (a) the identification of covered employees and (b) the so-called “Grandfather Rule.” The Notice does not address all of the issues raised by the Act’s changes to Section 162(m) and it makes clear that the Grandfather Rule will be narrowly interpreted. The guidance is effective for tax years ending on or after September 10, 2018 and will be incorporated into future regulations. The material provisions of the guidance are summarized below.
Although not quite as entertaining as the intrigue in Game of Thrones or Hamilton, the House and Senate have continued their dueling ways with respect to tax reform. The most recent salvo came from the Senate in the form of a Joint Committee on Taxation, Description of the Chairman’s Modification to the Chairman’s mark of the “Tax Cuts and Jobs Act” (JCX-56-17), November 14, 2017.
Unlike the original Senate version of proposed changes to the House version of the Tax Cuts and Jobs Act (both of which are summarized in our Client Alert dated November 14, 2017), which provided for drastic changes to the nonqualified deferred compensation rules, the new description appears to leave the deferred compensation rules in place. It also adds a transition rule for the modifications to section 162(m) of the Code that would provide that the expansion of section 162(m) would not apply to any remuneration under a written binding contract that was in effect on November 2, 2017 and that was vested as of December 31, 2016. In addition, the proposal eliminates the limitations on 401(k) catch-up contributions for high wage earners.
We are looking forward to the next episode…..