NQDC plan was established in late 2006. A Participant who is also a "specified employee" deferred amounts in 2006 and 2007 totaling approximately $27,000. Employee terminated in August of 2007 and received the first of 3 (unequal) installment distributions in September of 2007. The unintentional failure to delay the distribution for 6 months was discovered in late 2008. The Employer is going to distribute all remaining accounts under the Plan in Q1 2009 and once all distributions are made, the Plan will terminate. The first two installments were in excess of the 402(g) limit (by about $2,500 each) and the remaining balance is around $2,500. Previuosly distributed installments were included in W-2 income for the applicable years. Deferrals were subject to FICA when withheld from pay.

These circumstances don't seem to fit any of the correction options. I am considering proposing that the 20% tax be paid in 2009 with an explanation of the circumstances. I am unsure how the premium interest tax would apply. Any input is appreciated.

Does Notice 2008-113 section VII.B apply? If not, the proposed regs should give guidance on calculating the taxes due. Good luck!

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Section VII C. is applicable. Thanks for the point in the right direction!