RESTRICTIONS ON FUNDING OF NONQUALIFIED DEFERRED COMPENSATION PLANS BY EMPLOYERS MAINTAINING UNDERFUNDED OR TERMINATED SINGLE-EMPLOYER PLANS.

SEC. 116. RESTRICTIONS ON FUNDING OF NONQUALIFIED DEFERRED COMPENSATION PLANS BY EMPLOYERS MAINTAINING UNDERFUNDED OR TERMINATED SINGLE-EMPLOYER PLANS.(a) Amendments of Internal Revenue Code.—Subsection (b) of section 409A of the Internal Revenue Code of 1986 (providing rules relating to funding) is amended by redesignating paragraphs (3) and (4) as paragraphs (4) and (5), respectively, and by inserting after paragraph (2) the following new paragraph:“(3) Treatment of employer’s defined benefit plan during restricted period.—“(A) In general.—If—“(i) during any restricted period with respect to a single-employer defined benefit plan, assets are set 120 STAT. 857 aside or reserved (directly or indirectly) in a trust (or other arrangement as determined by the Secretary) or transferred to such a trust or other arrangement for purposes of paying deferred compensation of an applicable covered employee under a nonqualified deferred compensation plan of the plan sponsor or member of a controlled group which includes the plan sponsor, or“(ii) a nonqualified deferred compensation plan of the plan sponsor or member of a controlled group which includes the plan sponsor provides that assets will become restricted to the provision of benefits under the plan in connection with such restricted period (or other similar financial measure determined by the Secretary) with respect to the defined benefit plan, or assets are so restricted,such assets shall, for purposes of section 83, be treated as property transferred in connection with the performance of services whether or not such assets are available to satisfy claims of general creditors. Clause (i) shall not apply with respect to any assets which are so set aside before the restricted period with respect to the defined benefit plan.“(B) Restricted period.—For purposes of this section, the term ‘restricted period’ means, with respect to any plan described in subparagraph (A)—“(i) any period during which the plan is in at-risk status (as defined in section 430(i));“(ii) any period the plan sponsor is a debtor in a case under title 11, United States Code, or similar Federal or State law, and“(iii) the 12-month period beginning on the date which is 6 months before the termination date of the plan if, as of the termination date, the plan is not sufficient for benefit liabilities (within the meaning of section 4041 of the Employee Retirement Income Security Act of 1974).“(C) Special rule for payment of taxes on deferred compensation included in income.—If an employer provides directly or indirectly for the payment of any Federal, State, or local income taxes with respect to any compensation required to be included in gross income by reason of this paragraph—“(i) interest shall be imposed under subsection (a)(1)(B)(i)(I) on the amount of such payment in the same manner as if such payment was part of the deferred compensation to which it relates,“(ii) such payment shall be taken into account in determining the amount of the additional tax under subsection (a)(1)(B)(i)(II) in the same manner as if such payment was part of the deferred compensation to which it relates, and“(iii) no deduction shall be allowed under this title with respect to such payment.“(D) Other definitions.—For purposes of this sec- tion—120 STAT. 858“(i) Applicable covered employee.—The term ‘applicable covered employee’ means any—“(I) covered employee of a plan sponsor,“(II) covered employee of a member of a controlled group which includes the plan sponsor, and“(III) former employee who was a covered employee at the time of termination of employment with the plan sponsor or a member of a controlled group which includes the plan sponsor.“(ii) Covered employee.—The term ‘covered employee’ means an individual described in section 162(m)(3) or an individual subject to the requirements of section 16(a) of the Securities Exchange Act of 1934.”.(b) Conforming Amendments.—Paragraphs (4) and (5) of section 409A(b) of such Code, as redesignated by subsection (a) of this subsection, are each amended by striking “paragraph (1) or (2)” each place it appears and inserting “paragraph (1), (2), or (3)”.(c) Effective Date.—The amendments made by this section shall apply to transfers or other reservation of assets after the date of the enactment of this Act.