The IRS proposed a revised version of Treas. Reg. § 1.401(a)-21 (the Proposed Regulation) that, if finalized, would make permanent the option of remote witnessing of required spousal consents to certain retirement plan distribution elections and loan elections. The IRS had temporarily authorized remote witnessing in limited circumstances during the COVID-19 pandemic as a matter of practical necessity. The Proposed Regulation, issued on December 30, 2022, makes remote witnessing permanent, effective six months after the Proposed Regulation is finalized by the IRS. Until that finalization date, the IRS notes that taxpayers may rely on the rules set forth in the Proposed Regulation.
2006 Regulation
By way of background, since 2006, Treas. Reg. § 1.401(a)-21 (the 2006 Regulation) has authorized the use of electronic media for the purpose of “applicable notices” and “participant elections” that are under IRS jurisdiction, including required spousal consents to nonspousal beneficiaries, to certain forms of payment, and to certain loans. However, in all cases, the 2006 Regulation provides that the spouse’s consent must be witnessed in the physical presence of a notary or plan representative, although the signature can be made electronically.
Changes
The Proposed Regulation makes several changes to the 2006 Regulation. The Proposed Regulation helpfully updates the 2006 Regulations to eliminate some of the confusing language and to clearly state that electronic media can be used for spousal notices and elections.
The most significant change is that the Proposed Regulation makes permanent the ability for spousal consents to be witnessed by a notary public or plan representative remotely, subject to certain conditions. The IRS had declined to allow this in the 2006 Regulation because (as stated in the regulation’s preamble) “the physical presence requirement increases the likelihood that the electronic system is reasonably designed to preclude any person other than the appropriate individual from making the election.” However, the IRS went on to note that “in the future, technology could exist that would provide the same safeguards as the physical presence requirement.” That day has apparently arrived for the IRS.
Requirements
Remote witnessing of spousal consents by a notary public is allowed if (1) the signature of the person signing the consent is witnessed by a notary public using live audio-video technology, (2) four requirements carried over from the 2006 Regulation regarding electronic elections are satisfied, and (3) the remote witnessing is consistent with state law requirements that apply to the notary public. However, the Proposed Regulation requires plans to accept in-person notarizations if a spouse prefers that option.
In the case of spousal consents witnessed by a plan representative, the following requirements apply:
- The signature of the person signing the consent must be witnessed by a plan representative using live audio-video technology.
- The four above-described requirements regarding electronic elections must be satisfied.
- The person signing the consent must present a valid photo ID to the plan representative during (not before or after) the live audio-video conference.
- The live audio-video conference must allow for direct interaction between the person signing the consent and the plan representative.
- The person signing the consent must transmit a legible copy electronically to the plan representative on the same date as the document is signed.
- After receipt, the plan representative must acknowledge that the signature has been witnessed and must transmit the signed document back to the person signing the spousal consent electronically (assuming the recipient is able to “effectively access” the electronic medium used for the transmission).
Remote witnessing will be a welcome option for plan administrators in light of retirement plan rules that sometimes lagged behind technological developments.