Under Regulation 1.415-2(d)(2)(i), compensation is technically that which is received for "personal services actually rendered in the course of employment with the employer maintaining the plan to the extent includible in gross income..."

If severance is paid in a separate check, either all at once or spread out, how would it be included for plan allocation/testing purposes? IMHO, technically these payments are not for services rendered during employment, and are not part of a disability or health related compensation program.

Comments?

A similiar issue is whether participants can make section 401(k) contributions out of severance pay. There have been a number of discussions on this point in the Message Board, if you do some research. You may find those discussions to be enlightening, although they are admittedly not directly on point.

If not for services rendered and the quality of those services, What would severance pay be for? Even if paid in installments conditioned by the terms of a NCA, it is still for services rendered while as an employee. That is why it usually appears as W2 Box 1 wages, salary etc and not as a 1099 payment which would be for non employee compensation.

Also according to the IRS severance pay is subject tp payroll taxes including FICA. Employees are the only people paid by payroll and FICA is only taken from employees. FICA is not taken from 1099 compensation there is not even a box for it on a 1099.

In any case the Plan should have treatment and a definition of compensation, bonus and severance payments. If not it would best be treated like you treat bonuses. Also there might be restrictions placed by the election agreement, which might state salary as the source.

our plan document is pretty clear on the subject. severance pay received after a separation from service is not considered compensation. this means you cant defer any of it or you dont consider it in testing.

k man

How do you report this severance pay? 941 and W2? 1099?