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Given this broad description, nonqualified deferred compensation plans subject to 409A can include any of a variety of arrangements, including salary deferral arrangements, severance agreements, nonqualified stock option agreements or plans providing stock appreciation rights.
If at any time during the taxable year a nonqualified deferred compensation plan fails to comply with 409A, the employee must include in income for the taxable year all amounts deferred under the plan for the taxable year and all preceding taxable years, to the extent those deferred amounts are not subject to a substantial risk of forfeiture (and to the extent not previously included in income).
Recently, the IRS issued final regulations to provide guidance on rules for nonqualified deferred compensation plans under Internal Revenue Code Sec.
To retain tax-deferred status under new IRC section 409A, nonqualified deferred compensation plan administrators must take certain steps by December 31, 2005.
Q&A-4(e) of Notice 2005-1 makes clear that plans under which a service provider obtains a legally binding right to receive property in a future year may be a nonqualified deferred compensation plan covered by section 409A.
New Requirements for Nonqualified Deferred Compensation Plans
Without question, these types of nonqualified deferred compensation plans are of significant benefit to millions of American employees.
Q: Our association has a nonqualified deferred compensation plan for our two top executive officers.