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In page Internal Revenue Code section 409A:
"Section 409A assigns compliance-failure penalties to the recipient of deferred compensation (the "service provider") and not to the company offering the compensation (the "service recipient"). The sanctions for non-compliance can be severe.[1] The specific penalties written into law[2] are: * all compensation deferred for the taxable year and all preceding taxable years becomes includible in gross income for the taxable year to the extent the compensation is not subject to a "substantial risk of forfeiture" and has not previously been included in gross income
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