May 2, 2012 - Phil Hodgen

Circular definition in the Internal Revenue Code

I bring you the definition of an “item of deferred compensation” from the exit tax rules.  Section 877A(d)(4) says:

(4) Deferred compensation item. For purposes of this subsection, the term “deferred compensation item” means

(A) any interest in a plan or arrangement described in section 219(g)(5),

(B) any interest in a foreign pension plan or similar retirement arrangement or program,

(C) any item of deferred compensation, and

(D) any property, or right to property, which the individual is entitled to receive in connection with the performance of services to the extent not previously taken into account under section 83 or in accordance with section 83.

Emphasis added.

How’s that for a circular definition?  I think it takes the cake.  A “deferred compensation item” means, among other things, an “item of deferred compensation.”

Gee thanks.

Fortunately, Lara Banjamin and the now-retired Bill Yates of the Office of Associate Chief Counsel (International) gave us an exit from that infinite loop in Notice 2009-85, at Section 5.B.4:

Item of deferred compensation means any amount of compensation if, under the terms of the plan, contract, or other arrangement providing for such compensation (compensation arrangement), the covered expatriate has a legally binding right as of the expatriation date to such compensation, the compensation has not been actually or constructively received on or before the expatriation date, and pursuant to the compensation arrangement the compensation is payable to (or on behalf of) the covered expatriate on or after the expatriation date, but such term does not include any deferred compensation item that is described in section 5.B (1) a, 5.B (1) b, or 5.B (1) d of this notice. An item of deferred compensation generally includes an amount (other than a deferred compensation item described in sections 5.B (1) a, 5.B (1) b, or 5.B (1) d of this notice), whether or not substantially vested, that constitutes nonqualified deferred compensation for purposes of section 404 (a)(5) (determined without regard to § 1.404 (b)-1T, Q&A 2), including a cash-settled stock appreciation right, a phantom stock arrangement, a cash-settled restricted stock unit, an unfunded and unsecured promise to pay money or other compensation in the future (other than such a promise to transfer property in the future), and an interest in a trust described in section 402 (b)(1) or (4) (commonly referred to as a secular trust).

Now THAT makes sense.  (Seriously meant, with no sarcasm, irony, etc.)