26 U.S. Code § 404A - Deduction for certain foreign deferred compensation plans
(a) General rule
Amounts paid or accrued by an employer under a qualified foreign plan—
(b) Rules for qualified funded plans
For purposes of this section—
(1) In general
Except as otherwise provided in this section, in the case of a qualified funded plan contributions are properly taken into account for the taxable year in which paid.
(2) Payment after close of taxable year
For purposes of paragraph (1), a payment made after the close of a taxable year shall be treated as made on the last day of such year if the payment is made—
In the case of a qualified funded plan, the amount allowable as a deduction for the taxable year shall be subject to—
(A) in the case of—
(i) a plan under which the benefits are fixed or determinable, limitations similar to those contained in clauses (ii) and (iii) of subparagraph (A) of section 404 (a)(1) (determined without regard to the last sentence of such subparagraph (A)), or
(A) the aggregate of the contributions paid during the taxable year reduced by any contributions not allowable as a deduction under paragraphs (1) and (2) of subsection (g), exceeds
(B) the amount allowable as a deduction under subsection (a) (determined without regard to subsection (d)),
such excess shall be treated as an amount paid in the succeeding taxable year.
(5) Amounts must be paid to qualified trust, etc.
In the case of a qualified funded plan, a contribution shall be taken into account only if it is paid—
(c) Rules relating to qualified reserve plans
For purposes of this section—
(1) In general
In the case of a qualified reserve plan, the amount properly taken into account for the taxable year is the reasonable addition for such year to a reserve for the taxpayer’s liability under the plan. Unless otherwise required or permitted in regulations prescribed by the Secretary, the reserve for the taxpayer’s liability shall be determined under the unit credit method modified to reflect the requirements of paragraphs (3) and (4). All benefits paid under the plan shall be charged to the reserve.
(2) Income item
In the case of a plan which is or has been a qualified reserve plan, an amount equal to that portion of any decrease for the taxable year in the reserve which is not attributable to the payment of benefits shall be included in gross income.
(3) Rights must be nonforfeitable, etc.
In the case of a qualified reserve plan, an item shall be taken into account for a taxable year only if—
(4) Spreading of certain increases and decreases in reserves
There shall be amortized over a 10-year period any increase or decrease to the reserve on account of—
(B) experience gains and losses, and 
(d) Amounts taken into account must be consistent with amounts allowed under foreign law
(1) General rule
In the case of any plan, the amount allowed as a deduction under subsection (a) for any taxable year shall equal—
(A) the lesser of—
(2) Cumulative amounts defined
For purposes of paragraph (1)—
(A) Cumulative United States amount
The term “cumulative United States amount” means the aggregate amount determined with respect to the plan under this section for the taxable year and for all prior taxable years to which this section applies. Such determination shall be made for each taxable year without regard to the application of paragraph (1).
(3) Effect on earnings and profits, etc.
In determining the earnings and profits and accumulated profits of any foreign corporation with respect to a qualified foreign plan, except as provided in regulations, the amount determined under paragraph (1) with respect to any plan for any taxable year shall in no event exceed the amount allowed as a deduction under the appropriate foreign tax laws for such taxable year.
(e) Qualified foreign plan
For purposes of this section, the term “qualified foreign plan” means any written plan of an employer for deferring the receipt of compensation but only if—
(2) 90 percent or more of the amounts taken into account for the taxable year under the plan are attributable to services—
(f) Funded and reserve plans
For purposes of this section—
(1) Qualified funded plan
The term “qualified funded plan” means a qualified foreign plan which is not a qualified reserve plan.
(2) Qualified reserve plan
The term “qualified reserve plan” means a qualified foreign plan with respect to which an election made by the taxpayer is in effect for the taxable year. An election under the preceding sentence shall be made in such manner and form as the Secretary may by regulations prescribe and, once made, may be revoked only with the consent of the Secretary.
(g) Other special rules
(1) No deduction for certain amounts
Except as provided in section 404 (a)(5), no deduction shall be allowed under this section for any item to the extent such item is attributable to services—
(A) performed by a citizen or resident of the United States who is a highly compensated employee (within the meaning of section 414 (q)), or
(2) Taxpayer must furnish information
(A) In general
No deduction shall be allowed under this section with respect to any plan for any taxable year unless the taxpayer furnishes to the Secretary with respect to such plan (at such time as the Secretary may by regulations prescribe)—
(i) a statement from the foreign tax authorities specifying the amount of the deduction allowed in computing taxable income under foreign law for such year with respect to such plan,
(ii) if the return under foreign tax law shows the deduction for plan contributions or reserves as a separate, identifiable item, a copy of the foreign tax return for the taxable year, or
(B) Redetermination where foreign tax deduction is adjusted
If the deduction under foreign tax law is adjusted, the taxpayer shall notify the Secretary of such adjustment on or before the date prescribed by regulations, and the Secretary shall redetermine the amount of the tax for the year or years affected. In any case described in the preceding sentence, rules similar to the rules of subsection (c) ofsection 905 shall apply.
(3) Actuarial assumptions must be reasonable; full funding
(A) In general
(B) Interest rate for reserve plan
(i) In general In the case of a qualified reserve plan, in lieu of taking rates of interest into account under subparagraph (A), the rate of interest for the plan shall be the rate selected by the taxpayer which is within the permissible range.
(ii) Rate remains in effect so long as it falls within permissible range Any rate selected by the taxpayer for the plan under this subparagraph shall remain in effect for such plan until the first taxable year for which such rate is no longer within the permissible range. At such time, the taxpayer shall select a new rate of interest which is within the permissible range applicable at such time.
(iii) Permissible range For purposes of this subparagraph, the term “permissible range” means a rate of interest which is not more than 20 percent above, and not more than 20 percent below, the average rate of interest for long-term corporate bonds in the appropriate country for the 15-year period ending on the last day before the beginning of the taxable year.
(4) Accounting method
(5) Section 481 applies to election
For purposes of section 481, any election under this section shall be treated as a change in the taxpayer’s method of accounting. In applying section 481 with respect to any such election, the period for taking into account any increase or decrease in accumulated profits, earnings and profits or taxable income resulting from the application of section 481 (a)(2) shall be the year for which the election is made and the fourteen succeeding years.
The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section (including regulations providing for the coordination of the provisions of this section with section 404 in the case of a plan which has been subject to both of such sections).
 So in original. The word “and” probably should not appear.
Source(Added Pub. L. 96–603, § 2(a),Dec. 28, 1980, 94 Stat. 3505; amended Pub. L. 99–514, title XI, § 1114(b)(8), title XVIII, § 1851(b)(2)(C)(iii),Oct. 22, 1986, 100 Stat. 2451, 2863; Pub. L. 100–647, title I, § 1012(b)(4),Nov. 10, 1988, 102 Stat. 3496; Pub. L. 109–280, title VIII, § 801(c)(4),Aug. 17, 2006, 120 Stat. 995.)
2006—Subsec. (g)(3)(A). Pub. L. 109–280substituted “paragraphs (3) and (6) of section 431 (c)” for “paragraphs (3) and (7) of section 412 (c)”.
1988—Subsec. (d)(3). Pub. L. 100–647inserted “except as provided in regulations,” after “qualified foreign plan,”.
1986—Subsec. (a). Pub. L. 99–514, § 1851(b)(2)(C)(iii), substituted “under this chapter” for “under section 162, 212, or 404” in par. (1) and “they would otherwise be deductible” for “they satisfy the conditions of section 162” in par. (2).
Subsec. (g)(1)(A). Pub. L. 99–514, § 1114(b)(8), substituted “a highly compensated employee (within the meaning of section 414 (q))” for “an officer, shareholder, or highly compensated”.
Effective Date of 2006 Amendment
Amendment by Pub. L. 109–280applicable to years beginning after Dec. 31, 2007, see section 801(e)(1) ofPub. L. 109–280, set out as a note under section 404 of this title.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100–647effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) ofPub. L. 100–647, set out as a note under section 1 of this title.
Effective Date of 1986 Amendment
Amendment by section 1114(b)(8) ofPub. L. 99–514applicable to years beginning after Dec. 31, 1988, see section 1114(c)(3) ofPub. L. 99–514, set out as a note under section 414 of this title.
Amendment by section 1851(b)(2)(C)(iii) ofPub. L. 99–514effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, Pub. L. 98–369, div. A, to which such amendment relates, see section 1881 ofPub. L. 99–514, set out as a note under section 48 of this title.
Pub. L. 96–603, § 2(e),Dec. 28, 1980, 94 Stat. 3510, as amended by Pub. L. 97–448, title III, § 305(a),Jan. 12, 1983, 96 Stat. 2399; Pub. L. 99–514, § 2,Oct. 22, 1986, 100 Stat. 2095, provided that:
“(1) In general.—The amendments made by this section [enacting this section and section 6689 of this title and amending sections 679 and 905 of this title] shall apply with respect to employer contributions or accruals for taxable years beginning after December 31, 1979.
“(2) Election to apply amendments retroactively with respect to foreign subsidiaries.—
“(A) In general.—The taxpayer may elect to have the amendments made by this section [enacting this section and section 6689 of this title and amending sections 679 and 905 of this title] apply retroactively with respect to its foreign subsidiaries.
“(B) Scope of retroactive application.—Any election made under this paragraph shall apply with respect to all foreign subsidiaries of the taxpayer for the taxpayer’s open period.
“(C) Distributions by foreign subsidiary must be out of post-1971 earnings and profits.—The election under this paragraph shall apply to distributions made by a foreign subsidiary only if made out of accumulated profits (or earnings and profits) earned after December 31, 1970.
“(D) Revocation only with consent.—An election under this paragraph may be revoked only with the consent of the Secretary of the Treasury or his delegate.
“(E) Open period.—For purposes of this subsection, the term ‘open period’ means, with respect to any taxpayer, all taxable years which begin before January 1, 1980, and which begin after December 31, 1971, and for which, on December 31, 1980, the making of a refund, or the assessment of a deficiency, was not barred by any law or rule of law.
“(3) Allowance of prior deductions in case of certain funded branch plans.—
“(A) In general.—If—
“(i) the taxpayer elects to have this paragraph apply, and
“(ii) the taxpayer agrees to the assessment of all deficiencies (including interest thereon) arising from all erroneous deductions,then an amount equal to 1/15th of the aggregate of the prior deductions which would have been allowable if the amendments made by this section [enacting this section and section 6689 of this title and amending sections 679 and 905 of this title] applied to taxable years beginning before January 1, 1980, shall be allowed as a deduction for the taxpayer’s first taxable year beginning in 1980, and an equal amount shall be allowed for each of the succeeding 14 taxable years.
“(B) Prior deduction.—For purposes of subparagraph (A), the term ‘prior deduction’ means a deduction with respect to a qualified funded plan (within the meaning of section 404A(f)(1) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]) of the taxpayer—
“(i) which the taxpayer claimed for a taxable year (or could have claimed if the amendments made by this section [enacting this section and section 6689 of this title and amending sections 679 and 905 of this title] applied to taxable years beginning before January 1, 1980) beginning before January 1, 1980,
“(ii) which was not allowable, and
“(iii) with respect to which, on December 1, 1980, the assessment of a deficiency was not barred by any law or rule of law.
“(4) Time and manner for making elections.—
“(A) Time.—An election under paragraph (2) or (3) may be made only on or before the due date (including extensions) for filing the taxpayer’s return of tax under chapter 1 of the Internal Revenue Code of 1986 [section 1 et seq. of this title] for its first taxable year ending on or after December 31, 1980.
“(B) Manner.—An election under paragraph (2) may be made only by a statement attached to the taxpayer’s return for its first taxable year ending on or after December 31, 1980. An election under paragraph (3) may be made only if the taxpayer, on or before the last day for making the election, files with the Secretary of the Treasury or his delegate such amended return and such other information as the Secretary of the Treasury or his delegate may require, and agrees to the assessment of a deficiency for any closed year falling within the open period, to the extent such deficiency is attributable to the operation of such election.”
[Pub. L. 97–448, title III, § 311(c)(1),Jan. 12, 1983, 96 Stat. 2411, provided that: “The amendment made by subsection (a) ofsection 305 [amending par. (2)(E) of this note] shall take effect on December 28, 1980.”]
Secretary of the Treasury or his delegate to issue before Feb. 1, 1988, final regulations to carry out amendments made by section 1114 ofPub. L. 99–514, see section 1141 ofPub. L. 99–514, set out as a note under section 401 of this title.
Plan Amendments Not Required Until January 1, 1989
For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 ofPub. L. 99–514, as amended, set out as a note under section 401 of this title.
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