Title 26 — Internal Revenue CodeRelease 119-73
§404A Deduction for certain foreign deferred compensation plans
Title 26 › Subtitle Subtitle A— - Income Taxes › Chapter CHAPTER 1— - NORMAL TAXES AND SURTAXES › Subchapter Subchapter D— - Deferred Compensation, Etc. › Part PART I— - PENSION, PROFIT-SHARING, STOCK BONUS PLANS, ETC. › Subpart Subpart A— - General Rule › § 404A
Summary
Employers can only take a tax deduction for money put into certain foreign deferred-pay plans under a special set of rules, not under the normal deduction rules. For funded plans, contributions count for the year they are paid. A payment made after year end can count for the earlier year if it is for that year and is paid by the tax return due date, including extensions. The deductible amount is limited by special rules that mirror U.S. retirement limits and by a formula that compares the total amounts figured under U.S. rules and the total amounts allowed as deductions under the foreign law; the deductible amount for a year cannot exceed the lesser of those two totals after subtracting amounts already deducted in earlier years. Reserve plans use a reasonable annual addition to a reserve as the deductible amount, any non-benefit drops in the reserve are taxed, and increases or decreases to the reserve for plan adoption, experience, assumption changes, interest-rate changes, or similar items are spread (amortized) over 10 years. No deduction is allowed for pay tied to U.S. citizens or residents who are highly paid, or for services performed in the United States that are taxed here. The employer must give the IRS proof of the foreign deduction (such as a statement from foreign tax authorities or a foreign return) and must tell the IRS if the foreign deduction is later changed. Changes in accounting method or an election under these rules are handled with special tax timing that spreads adjustments over the election year and the 14 years after it. Qualified foreign plan — a written employer plan to defer pay that mostly benefits nonresident aliens and for which the employer elects these rules. Qualified funded plan — a qualified foreign plan that is not a reserve plan. Qualified reserve plan — a qualified foreign plan where the employer has chosen the reserve-plan option.
Full Legal Text
Title 26, §404A
Internal Revenue Code — Source: USLM XML via OLRC
(a)Amounts paid or accrued by an employer under a qualified foreign plan—
(1)shall not be allowable as a deduction under this chapter, but
(2)if they would otherwise be deductible, shall be allowed as a deduction under this section for the taxable year for which such amounts are properly taken into account under this section.
(b)For purposes of this section—
(1)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)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—
(A)on account of such year, and
(B)not later than the time prescribed by law for filing the return for such year (including extensions thereof).
(3)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
(ii)any other plan, limitations similar to the limitations contained in paragraph (3) of section 404(a), and
(B)limitations similar to those contained in paragraph (7) of section 404(a).
(4)If—
(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)),
(5)In the case of a qualified funded plan, a contribution shall be taken into account only if it is paid—
(A)to a trust (or the equivalent of a trust) which meets the requirements of section 401(a)(2),
(B)for a retirement annuity, or
(C)to a participant or beneficiary.
(c)For purposes of this section—
(1)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)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)In the case of a qualified reserve plan, an item shall be taken into account for a taxable year only if—
(A)there is no substantial risk that the rights of the employee will be forfeited, and
(B)such item meets such additional requirements as the Secretary may by regulations prescribe as necessary or appropriate to ensure that the liability will be satisfied.
(4)There shall be amortized over a 10-year period any increase or decrease to the reserve on account of—
(A)the adoption of the plan or a plan amendment,
(B)experience gains and losses,
(C)any change in actuarial assumptions,
(D)changes in the interest rate under subsection (g)(3)(B), and
(E)such other factors as may be prescribed by regulations.
(d)(1)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—
(i)the cumulative United States amount, or
(ii)the cumulative foreign amount, reduced by
(B)the aggregate amount determined under this section for all prior taxable years.
(2)For purposes of paragraph (1)—
(A)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).
(B)The term “cumulative foreign amount” means the aggregate amount allowed as a deduction under the appropriate foreign tax laws for the taxable year and all prior taxable years to which this section applies.
(3)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)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—
(1)such plan is for the exclusive benefit of the employer’s employees or their beneficiaries,
(2)90 percent or more of the amounts taken into account for the taxable year under the plan are attributable to services—
(A)performed by nonresident aliens, and
(B)the compensation for which is not subject to tax under this chapter, and
(3)the employer elects (at such time and in such manner as the Secretary shall by regulations prescribe) to have this section apply to such plan.
(f)For purposes of this section—
(1)The term “qualified funded plan” means a qualified foreign plan which is not a qualified reserve plan.
(2)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)(1)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
(B)performed in the United States the compensation for which is subject to tax under this chapter.
(2)(A)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
(iii)such other statement, return, or other evidence as the Secretary prescribes by regulation as being sufficient to establish the amount of the deduction under foreign law.
(B)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) of section 905 shall apply.
(3)(A)Except as provided in subparagraph (B), principles similar to those set forth in paragraphs (3) and (6) of section 431(c) shall apply for purposes of this section.
(B)(i)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)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)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)Any change in the method (but not the actuarial assumptions) used to determine the amount allowed as a deduction under subsection (a) shall be treated as a change in accounting method under section 446(e).
(5)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.
(h)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).
Legislative History
Notes & Related Subsidiaries
Editorial Notes
Amendments
2018—Subsec. (c)(4)(B). Pub. L. 115–141 struck out “and” at end. 2006—Subsec. (g)(3)(A). Pub. L. 109–280 substituted “paragraphs (3) and (6) of section 431(c)” for “paragraphs (3) and (7) of section 412(c)”. 1988—Subsec. (d)(3). Pub. L. 100–647 inserted “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”.
Statutory Notes and Related Subsidiaries
Effective Date
of 2006 AmendmentAmendment by Pub. L. 109–280 applicable to years beginning after Dec. 31, 2007, see section 801(e)(1) of Pub. L. 109–280, set out as a note under section 404 of this title.
Effective Date
of 1988 AmendmentAmendment by Pub. L. 100–647 effective, 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) of Pub. L. 100–647, set out as a note under section 1 of this title.
Effective Date
of 1986 AmendmentAmendment by section 1114(b)(8) of Pub. L. 99–514 applicable to years beginning after Dec. 31, 1988, see section 1114(c)(3) of Pub. L. 99–514, set out as a note under section 414 of this title. Amendment by section 1851(b)(2)(C)(iii) of Pub. L. 99–514 effective, 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 of Pub. L. 99–514, set out as a note under section 48 of this title.
Effective Date
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 section 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 section 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 section 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 section 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) of section 305 [amending par. (2)(E) of this note] shall take effect on
December 28, 1980.” ]
Regulations
Secretary of the Treasury or his delegate to issue before Feb. 1, 1988, final
Regulations
to carry out
Amendments
made by section 1114 of Pub. L. 99–514, see section 1141 of Pub. L. 99–514, set out as a note under section 401 of this title. Plan
Amendments
Not Required Until January 1, 1989For 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. 99–514 require 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 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title.
Reference
Citations & Metadata
Citation
26 U.S.C. § 404A
Title 26 — Internal Revenue Code
Last Updated
Apr 6, 2026
Release point: 119-73