The IRS based its conclusion on the proposed provisions that govern the date of income inclusion, pursuant to Section 409A, when an agreement is contrary to Section 409A. According to these proposed regulations, it is clear that if the restraint agreement had been corrected before the year of unshakability, there would have been no consequences under Section 409A. In particular, the proposed provisions provide that the amount corresponding to a worker`s income for the tax year resulting from a failure of Section 409A is the amount by which (1) the total amount of the plan for the fiscal year exceeds (2) the portion of that amount that is subject to a significant risk of loss or that was previously included in income.3 The proposed provisions also provide: 4 Although in 2009, 2010 and 2011 the retention agreement violated section 409A, no amount was included in the officer`s income during those years.4 Although the retention agreement was contrary to section 409A in 2009, 2010 and 2011, no amount was included in the officer`s income. The first year in which bonuses could have been included in the officer`s income, in accordance with section 409A, was 2012 (the year of unwaveringness). If the retention agreement had been corrected in 2009, 2010 or 2011, it would not have violated Section 409A in 2012 and the executive would therefore not have been proven at all by the consequences of Section 409A. The bonus was a “deferred remuneration” in accordance with Article 409A, given that the manager had a legally binding right to the bonus in 2009 and would only be paid in 2013 and 2014. Unlike many withholding agreements paid in the event of unshakability, the agreement at issue in the CSF was not structured in such a way as to satisfy the exception of the `short-term carry-over` of Article 409a. But for the company`s choice to change the bonus date, the payment conditions of the bonus section 409A would have been respected, since the bonus was payable according to a fixed schedule (October 1, 2013 and October 1, 2014). However, the company`s ability to expedite the date of payment of the bonus in these circumstances was contrary to Section 409A. While there are certain circumstances in which the acceleration of payments is allowed under cash settlements, none of them have been complied with….