Happy Friday. I received a governmental excess plan question. Client was wondering if participants could delay distribution once they are retired. These plans are not subject to 409A but 415(m)(2)(B) says the participant shall include in income as if such qualified governmental excess benefit arrangement were treated as a plan for the deferral of compensation which is maintained by a corporation not exempt from tax under ...section 401.

Do you think the plan should follow 409A rules or do you think they could follow what most nonqualified plans did standardly before 409A which was to allow the delay of a distribution if elected prior to the retirement date?

Thanks

See Treas. Reg. section 1.409A-1(a) (2)(viii). But some people should be rethinking what was permissible under pre-409A law in light of 409A even though 409A does not apply.