Ninety law firms have banded together for a second time to ask the Internal Revenue Service to defer or soften executive compensation-related tax rules.

The law firms’ Feb. 19 letter was about an IRS “private-letter ruling,” which offers written guidance to a taxpayer about how the tax law applies to a particular situation.

The ruling, which countered the agency’s prior private-letter rulings on the issue, determined that an unnamed public company’s performance awards to executives failed to qualify for tax-deductible status under Section 162(m) of the Internal Revenue Code of 1986. The private-letter ruling was released on Jan. 25, but the IRS codified it in a formal tax ruling on Feb. 21. Under Section 162(m), public-company compensation of more than $1 million to certain top executives is not tax deductible, with few exceptions.

The IRS ruling said that because executives could have received the awards for involuntary termination, and not solely for meeting performance goals, they did not meet the IRS’ exception criteria.

Two days after the law firms sent the letter, the IRS issued a revenue ruling, or a statement about the tax code, which upheld the conclusions in the private-letter ruling, but delayed implementation of most of the ruling until Jan. 1, 2009.

Amending bonus plans

The lawyers aren’t pleased by the substantive result, but the delayed implementation will help compliance, said Regina Olshan, an employee benefits and executive compensation partner at New York’s Skadden, Arps, Slate, Meagher & Flom, and part of the small, multifirm group of lawyers who spearheaded the letter. “Many people will have to amend their [incentive bonus] plans and employment agreements,” Olshan said.

Mark Wincek, in the Washington office of Atlanta’s Kilpatrick Stockton, signed the letter on behalf of the 90 firms, which include DLA Piper; Jones Day; McDermott, Will & Emery; Reed Smith; White & Case; and New York’s Shearman & Sterling.

The battle is an abbreviated version of last year’s scuffle between many of the same law firms and the IRS over another executive-compensation issue.

In August, about 90 firms sent a letter asking the IRS to delay implementation of 409A, which are sweeping regulations of various types of deferred-compensation arrangements allowed under the tax laws. A few weeks later, the IRS pushed the compliance deadline back a year to Dec. 31, 2008. [NLJ, 8-23-07.]

An IRS official who asked not to be named said the agency was already crafting a revenue ruling when it received the letter by e-mail on Feb. 19.