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Luke D. Bailey

Senior Counsel
fax +1 214.659.4167

Luke Bailey advises public and private businesses and state and local government employers regarding employee benefits law and executive compensation.

Luke’s extensive experience and knowledge of the tax and fiduciary requirements of qualified retirement and other employee benefit and executive compensation plans enables him to find practical solutions for clients quickly. On the corporate merger side, he frequently provides recommendations concerning the ramifications of mergers and acquisitions on retirement, welfare benefit, and executive compensation plans.

A substantial portion of Luke’s work in the area of executive compensation has consisted of advising companies and executives with respect to the rules of Section 409A of the Code as well as the “golden parachute” rules of IRC §§280G and 4999. In addition, his work in the executive compensation area includes the design, drafting, and provision of tax advice concerning stock option plans, nonqualified deferred compensation, severance plans and arrangements, and executive employment agreements.

Having handled a large number of cases under the IRS’s program for repairing non-compliant plans (“EPCRS,” “VCP,” and “Audit Cap”) and cases with the U.S. Department of Labor’s Employer Benefits Security Administration involving potential fiduciary breaches, Luke has been able to create value for his clients and their employees. He has extensive experience in representing plan sponsors in IRS and DOL audits of their employee benefit plans. Luke has also assisted employers in correcting document and operational failures under Section §409A of the Code. Luke counsels his clients on federal income tax compliance work for sponsors of governmental pension plans and in the areas of IRC §§403(b), 457(b), and 457(f) plans of state and local governments, universities, and charities.

Education

J.D., University of California, 1982
A.B., Occidental College, Los Angeles, California, 1974

Recognitions

Named among Best Lawyers in America® for Employee Benefits (ERISA) Law by Best Lawyers (2013-2026)

Named among Best Lawyers in Dallas for ERISA by D Magazine (2011-2013, 2016)

Memberships

American Bar Association, Tax Section

State Bar of Texas, Member

National Association of Public Pension Attorneys, Member

State Bar Licenses

Texas

Presentations

  • Individual Coverage Health Reimbursement Arrangements (ICHRAs) – What Are They, How Can an Employer Use Them, and What Might Their Future Be, Clark Hill Webinar, April 7, 2021
  • The Secure Act – Key Provisions and Deadlines for Retirement Plan Sponsors, February 27, 2020
  • Healthcare Update, Clark Hill Strasburger’s Tax Symposium (November 2019)
  • Private Investment IRAs: The Good, The Bad, and The Dangerous, Strasburger’s Tax Symposium (November 2017)
  • Employee Gifts and Fringe Benefits: Tax Consequences and Reporting Obligations, San Antonio CPA Society (August 2017)
  • Social Security Benefits from a Financial Planning Perspective, plus DOL’s New Fiduciary Advisor Rules, Strasburger’s Tax Symposium (November 2016)
  • The Affordable Care Act after King v. Burwell, Strasburger’s Tax Symposium (September 2015)
  • Tax Aspects of Equity Incentive Plans for LLCs and LPs, Strasburger’s Tax Symposium (September 2015)
  • Cash Balance Pension Plans Retirement Savings on Steroids, Strasburger’s Tax Symposium (August 2014)
  • Affordable Care Act Changes, Strasburger’s Tax Symposium (August 2014)
  • Primer on $1M Cap on Deductibility of Non-Performance-Based Compensation Paid Annually to an Individual Executive by a Public Company, ACI Compensation and Benefits Boot Camp (June 2011)
  • Primer on U.S. Federal Income Tax Rules Penalizing “Golden Parachutes” ACI Compensation and Benefits Boot Camp (June 2011)
  • HSA’s, Strasburger Tax Symposium (June 2007)
  • ERISA Fiduciary Duties After Enron Investment in Employer Stock and Other Issues, Strasburger Annual Tax Symposium (August 2002)
  • IRS Audits of 403(b) “Plans” and Closing Agreements Under Rev. Proc. 99-13, Dallas Bar Association Employee Benefits/Executive Compensation Section (March 2000)
  • The Alphabet Soup of Equity Compensation, Strasburger Tax Symposium (August 1999)
  • Income and Wealth Transfer Tax Implications of Beneficiary Distribution Options Under Qualified Plans, IRAs, and Executive Compensation, Strasburger Tax Symposium (November 1998)
  • ABCs of 404(c): Questions and Answers about Plan Sponsor Compliance, Institutional Investor Defined Contribution Forum (November 1994)
  • IRS’s APRS, VCR, and CAP Programs, San Francisco Area Women Tax Lawyers (July 1994)

Publications

  • Co-author. IRS and Treasury Give Back Significant Ground on Governmental Plans Normal Retirement Age Definition, Strasburger Governmental Newsletter (June 2012)
  • Co-author. Code § 414(d) Advance notice of Proposed Rulemaking Raises Many Issues for Governmental Pension Plans, Strasburger Governmental Newsletter (April 2012)
  • Application of Final Normal Retirement Age Regulations (Treas. Reg. § 1.401(a)-1(b)) to Governmental Plans, Particularly Those Covering Public Safety Employees, Strasburger Governmental Newsletter (May 2010)
  • Consumer-Driven Health Plans–What’s the Buzz About, Health Industry Online (March 2006)
  • IRC § 409A: The Blob that Swallowed Deferred Compensation, Strasburger Corporate Counsel Series (February 2005)
  • Qualified Retirement Plans for Small Businesses and Professional Firms, White Paper (August 2003)
  • A Primer on Employee Stock Purchase Plans Under IRC Section 423, White Paper (August 2001)
  • Golden Parachutes Under IRC Sections 280G and 4999 Rules, Strategies, and Tactics, Strasburger Corporate Counsel Series (February 1999)
  • A Primer on Participant-Directed Accounts Under the ERISA Section 404(c) Proposed Regulations, A Maxwell McMillan Pension and Profit Sharing Service Special Report (July 1991)
  • ‘Complete Discontinuance’ of Contributions to a Profit Sharing Plan for Full Vesting Purposes, The Pension Actuary (December 1988)

Experience

  • Has represented public and private companies in the design, drafting, adoption, approval, and administration of stock compensation plans.
  • Has successfully prosecuted numerous voluntary compliance submissions under the IRS Voluntary Compliance Program (“VCP”).
  • Has represented over 100 individual executives over a period of many years regarding avoidance or mitigation of the golden parachute rules generally applicable to change in control compensation.
  • Has obtained IRS private letter rulings classifying governmental pension plan payments as nontaxable on-duty disability benefits.

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