Treasury and IRS have issued their combined 2008-2009 Priority Guidance Plan, informally referred to as their “Business Plan.” That Plan includes 57 guidance projects on retirement plan, executive compensation and other employee benefit topics, 9 projects relating to insurance companies and products, and several other projects implicating these arrangements.

Employee Benefits and Executive Compensation

In addition to proposals already outstanding, the priority guidance projects for retirement plans and other employee benefits include the following:

Retirement Plans

  • Notice on cumulative list of changes in plan qualification requirements. 
  • Update of model notice under § 402(f) relating to eligible rollover distributions. 
  • Proposed regulations on annual reporting for qualified plans. 
  • Proposed regulations under section 411(a)(11) to describe consequences of a failure to defer, as directed by the Pension Protection Act of 2006 (“PPA”). 
  • Proposed regulations regarding the market rate of return limitation under § 411(b)(5). 
  • Guidance on retroactive plan amendments under PPA § 1107 (i.e., anti-cutback rule relief for PPA amendments). 
  • Guidance on group trusts under Revenue Rulings 81-100 and 2004-67. 
  • Guidance on pre-approved IRAs regarding recent law changes. 
  • Revenue procedure on § 403(b) prototype plan documents, and a revenue ruling to obsolete § 403(b) guidance that is no longer applicable. 
  • Guidance on requirements for governmental plan status under § 414(d), and follow-on guidance to Notice 2007-69 for governmental plans. 
  • Guidance on church plans. 
  • Notice on certain retirement plan provisions of the Heroes Earnings Assistance and Relief Tax Act of 2008 (“Heroes Act”).

Executive Compensation

  • Regulations under § 409A on the calculation of income inclusion and additional taxes. 
  • Guidance on § 409A correction program. 
  • Guidance regarding reporting and income tax withholding under § 409A. 
  • Revenue Procedure on private letter rulings not involving § 409A. 
  • Guidance under § 457(f) on ineligible plans.

Life and Health Benefits

  • Guidance on employer-owned life insurance contracts under § 101(j). 
  • Guidance on applying § 105(h) nondiscrimination rules to self-insured retiree medical plans. 
  • Revenue ruling on the applicability of § 162(l) to COBRA premiums. 
  • Proposed regulations under § 162(m) on the transition relief under Treas. Reg. § 1.162-27(f)(1). 
  • Guidance on additional issues on Health Savings Accounts (HSAs). 
  • Guidance under § 105 of the Heroes Act regarding the treatment of military differential pay as wages.
  • Regulations implementing new § 3121(z), as added by the Heroes Act, on foreign employers. 
  • Guidance under § 4980B regarding calculation of the applicable premium for COBRA continuation coverage. 
  • Proposed regulations under § 4980G on the interaction of § 4980G and § 125 with respect to comparable employer contributions to employees’ HSAs. 
  • Temporary regulations implementing the Genetic Information Nondiscrimination Act of 2008. 
  • Regulations providing criteria for treating an entity as an integral part of a state, local, or tribal government. (“Integral part” trusts are sometimes used to provide medical or other benefits to governmental employees.) 
  • Guidance addressing significant issues under § 152 concerning the definition of dependent.

Education Savings

  • Guidance under § 529 regarding qualified tuition programs. An advance Notice of Proposed Rulemaking was published on January 18, 2008.


  • In addition to those listed under Life and Health benefits, the insurance guidance projects are as follows:
  • Guidance on the classification of certain cell captive insurance arrangements. Previous guidance was published in Notice 2008-19. There is a separate guidance project concerning the classification of series LLCs and cell companies under § 7701. 
  • Revenue ruling providing guidance on reinsurance arrangements entered into with a single ceding company. 
  • Final regulations on the exchange of property for an annuity contract. Proposed regulations were published on October 18, 2006. 
  • Guidance on the tax treatment of a partial exchange or partial annuitization of an annuity contract. 
  • Revenue ruling regarding the tax-free exchange of life insurance contracts subject to § 264(f). 
  • Guidance on the determination of the company's share and policyholders' share of the net investment income of a life insurance company under § 812. 
  • Guidance on tax issues arising under § 807 as a result of the adoption by the National Association of Insurance Commissioners (NAIC) of an Actuarial Guideline setting forth the Commissioners' Annuity Reserve Valuation Methodology for variable annuities (AG VACARVM).