Proposed Rule2022-28327
Use of an Electronic Medium To Make Participant Elections and Spousal Consents
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 30, 2022
Issuing agencies
Treasury DepartmentInternal Revenue Service
Abstract
This document sets forth a proposed regulation relating to the use of an electronic medium for participant elections and spousal consents. The proposed regulation provides an alternative to in-person witnessing of spousal consents required to be witnessed by a notary public or a plan representative, and clarifies that certain special rules for the use of an electronic medium for participant elections also apply to spousal consents. The proposed regulation generally affects sponsors and administrators of, and individuals entitled to benefits under, certain qualified retirement plans. This document also provides a notice of a public hearing.
Full Text
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<title>Federal Register, Volume 87 Issue 250 (Friday, December 30, 2022)</title>
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[Federal Register Volume 87, Number 250 (Friday, December 30, 2022)]
[Proposed Rules]
[Pages 80501-80509]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28327]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG-114666-22]
RIN 1545-BQ50
Use of an Electronic Medium To Make Participant Elections and
Spousal Consents
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking and notice of public hearing.
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SUMMARY: This document sets forth a proposed regulation relating to the
use of an electronic medium for participant elections and spousal
consents. The proposed regulation provides an alternative to in-person
witnessing of spousal consents required to be witnessed by a notary
public or a plan representative, and clarifies that certain special
rules for the use of an electronic medium for participant elections
also apply to spousal consents. The proposed regulation generally
affects sponsors and administrators of, and individuals entitled to
benefits under, certain qualified retirement plans. This document also
provides a notice of a public hearing.
DATES: Written or electronic comments must be received by March 30,
2023. A telephonic public hearing on this proposed regulation has been
scheduled for April 11, 2023, at 10:00 a.m. ET. Requests to speak and
outlines of topics to be discussed at the public hearing must be
received by March 30, 2023. If no outlines are received by March 30,
2023, the public hearing will be cancelled. Requests to attend the
public hearing must be received by 5:00 p.m. ET on April 7, 2023. The
public hearing will be made accessible to people with disabilities.
Requests for special assistance during the public hearing must be
received by April 6, 2023.
ADDRESSES: Commenters are strongly encouraged to submit public comments
electronically. Submit electronic submissions via the Federal
eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a> (indicate IRS and REG-114666-
22) by following the online instructions for submitting comments. Once
submitted to the Federal eRulemaking Portal, comments cannot be edited
or withdrawn. The Department of the Treasury (``Treasury Department'')
and the IRS will publish for public availability any comment submitted
electronically or on paper to its public docket on <a href="http://www.regulations.gov">www.regulations.gov</a>.
Send paper submissions to: CC:PA:LPD:PR (REG-114666-22), Room 5203,
Internal Revenue Service, P.O. Box 7604, Ben Franklin Station,
Washington, DC 20044.
FOR FURTHER INFORMATION CONTACT: Concerning the regulation, call Arslan
Malik at (202) 317-6700 or Pamela Kinard at (202) 317-6000; concerning
submission of comments, the hearing, and the access code to attend the
hearing by telephone, call Vivian Hayes at (202) 317-5306 (not toll-
free numbers) or email <a href="/cdn-cgi/l/email-protection#720207101e1b111a1713001b1c1501321b00015c151d04"><span class="__cf_email__" data-cfemail="afdfdacdc3c6ccc7caceddc6c1c8dcefc6dddc81c8c0d9">[email protected]</span></a> (preferred).
SUPPLEMENTARY INFORMATION:
[[Page 80502]]
Background
A. In General
This document sets forth proposed amendments to 26 CFR part 1 under
section 401 of the Internal Revenue Code (Code). Final regulations
relating to the electronic delivery of applicable notices and
participant elections were published in the Federal Register on October
20, 2006 (71 FR 61877) (2006 final regulations). The 2006 final
regulations included new Sec. 1.401(a)-21 setting forth standards for
the use of an electronic medium to provide applicable notices to
recipients or to make participant elections, amended Q&A-13 of Sec.
54.4980F-1 by revising the rules for using an electronic method to
provide a section 204(h) notice, and made certain conforming
amendments.\1\ Section 1.401(a)-21 reflects the applicable provisions
of the Electronic Signatures in Global and National Commerce Act,
Public Law 106-229, 114 Stat. 464 (2000) (E-SIGN), as it relates to the
electronic delivery of applicable notices and participant elections.
For an in-depth description of the provisions of E-SIGN, see the
background section in the preamble of the 2006 final regulations.
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\1\ The 2006 final regulations made conforming amendments to
Sec. Sec. 1.72(p)-1, 1.132-9, 1.401(k)-3, 1.402(f)-1, 1.411(a)-11,
1.417(a)(3)-1, 1.7476-2, and 35.3405-1.
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B. Special Rules for Participant Elections
Section 1.401(a)-21(d) sets forth several special rules relating to
the use of an electronic medium to make a participant election, which
is defined in Sec. 1.401(a)-21(e)(6) as any consent, election,
request, agreement, or similar communication made by or from a
participant, beneficiary, alternate payee, or an individual entitled to
benefits under a retirement plan, employee benefit arrangement, or
individual retirement plan. First, the person eligible to make a
participant election must be effectively able to access the electronic
medium used to make the participant election. Second, the electronic
system used in making a participant election must be reasonably
designed to preclude any person other than the appropriate person from
making the participant election. Third, the electronic system must
provide the person making the participant election with a reasonable
opportunity to review, confirm, modify, or rescind the terms of the
election before it becomes effective. Fourth, the person making the
participant election must receive, within a reasonable time,
confirmation of the effect of the election through either a written
paper document or an electronic medium under a system that satisfies
the applicable notice requirements under Sec. 1.401(a)-21(b) or (c).
Spousal consent rules apply to plans that are subject to the
qualified joint and survivor annuity (QJSA) and qualified preretirement
survivor annuity (QPSA) requirements of section 417.\2\ In general,
these spousal consent rules require that a participant's spouse consent
to the participant's election to take certain plan distributions or
loans, and that such consent be witnessed by a plan representative or a
notary public. See generally section 417(a)(2); Sec. 1.401(a)-20, Q&A-
8(b) and Q&A-24; and Sec. 1.417(e)-1(b). Section 1.401(a)-21(d)(6)(i)
provides that, in the case of a participant election that is required
to be witnessed by a plan representative or a notary public (such as a
spousal consent under section 417), the signature of the individual
making the participant election must be witnessed in the physical
presence of a plan representative or a notary public (physical presence
requirement). Section 1.401(a)-21(d)(6)(ii) provides that, if the
signature of an individual is witnessed in the physical presence of a
notary public, an electronic notarization acknowledging the signature
(in accordance with section 101(g) of E-SIGN,\3\ and applicable State
law for notaries public) will not be denied legal effect.
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\2\ In general, the spousal consent requirements under section
417 apply to a subset of qualified retirement plans, including
defined benefit plans, money purchase pension plans, and defined
contribution plans that (1) do not provide 100 percent death
benefits for surviving spouses, (2) provide benefits in the form of
a life annuity, or (3) are direct or indirect transferees of a
defined benefit or money purchase pension plan. See section
401(a)(11)(B) and Sec. 1.401(a)-20, Q&A-3. Section 205 of the
Employee Retirement Income Security Act of 1974, as amended (ERISA),
provides parallel annuity and spousal rights provisions, including
spousal consent requirements. The IRS has interpretive authority
over section 205 of ERISA pursuant to the Reorganization Plan No. 4
of 1978, 5 U.S.C. App.
\3\ Section 101(g) of E-SIGN provides that ``[i]f a statute,
regulation, or other rule of law requires a signature or record
relating to a transaction in or affecting interstate or foreign
commerce to be notarized, acknowledged, verified, or made under
oath, that requirement is satisfied if the electronic signature of
the person authorized to perform those acts, together with all other
information required to be included by other applicable statute,
regulation, or rule of law, is attached to or logically associated
with the signature or record.''
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Section 1.401(a)-21(d)(6)(iii) provides that the Commissioner may
provide in guidance published in the Internal Revenue Bulletin that the
use of procedures under an electronic system is deemed to satisfy the
physical presence requirement, but only if those procedures with
respect to the electronic system provide the same safeguards for
participant elections as are provided through the physical presence
requirement.
C. Notices Issued in Response to COVID-19 Pandemic
During the Coronavirus Disease 2019 (COVID-19) pandemic,\4\ the
Treasury Department and the IRS received several requests from
stakeholders to permit remote witnessing of spousal consents by a
notary public or a plan representative over the internet using digital
tools and live audio-video technologies (remote witnessing) for plan
distributions and loans. These stakeholders stated that, due to social
distancing requirements and other measures put into place in response
to the COVID-19 pandemic, the physical presence requirement in Sec.
1.401(a)-21(d)(6) made it difficult, if not impossible, for a
participant to receive a plan distribution or loan for which spousal
consent was required. In response to the COVID-19 pandemic and requests
for relief from stakeholders, the Treasury Department and the IRS
issued a notice granting temporary relief from the physical presence
requirement for spousal consents and, in response to the continuing
COVID-19 pandemic and additional requests for relief from stakeholders,
three additional notices granting extensions of the temporary relief
(together, the temporary relief notices).\5\ The temporary relief
notices granted relief for the period January 1, 2020, through December
31, 2022.
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\4\ On March 13, 2020, the President determined that the COVID-
19 pandemic was of sufficient severity and magnitude to warrant an
emergency determination beginning March 1, 2020, under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.
5121-5207.
\5\ See Notice 2020-42, 2020-26 IRB 986; Notice 2021-03, 2021-2
IRB 316; Notice 2021-40, 2021-28 IRB 15; and Notice 2022-27, 2022-22
IRB 1151.
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Under the temporary relief notices, in the case of a participant
election witnessed by a notary public, an electronic system that uses
remote witnessing is deemed to satisfy the physical presence
requirement if the participant election is executed via live audio-
video technology that otherwise satisfies the requirement for
participant elections and is consistent with State law requirements
that apply to the notary public.
In the case of a participant election witnessed by a plan
representative, under the temporary relief notices, an electronic
system that uses remote witnessing is deemed to satisfy the
[[Page 80503]]
physical presence requirement if the electronic system uses live audio-
video technology and satisfies the following requirements: (1) the
individual signing the participant election must present a valid photo
ID to the plan representative during the live audio-video conference,
and may not merely transmit a copy of the photo ID prior to or after
the witnessing; (2) the live audio-video conference must allow for
direct interaction between the individual and the plan representative
(for example, a pre-recorded video of the person signing is not
sufficient); (3) the individual must transmit by fax or electronic
means a legible copy of the signed document directly to the plan
representative on the same date it was signed; and (4) after receiving
the signed document, the plan representative must acknowledge that the
signature has been witnessed by the plan representative in accordance
with the requirements of the temporary relief notices and transmit the
signed document, including the acknowledgement, back to the individual
under a system that satisfies the applicable notice requirements under
Sec. 1.401(a)-21(c).
D. Comments Relating to Remote Witnessing of Spousal Consents
1. Solicitation of Public Comments
Several stakeholders requesting an extension of the temporary
relief provided in Notice 2020-42 further requested that the relief be
made permanent. In response, Notices 2021-03 and 2021-40 solicited
comments relating to remote witnessing. Notice 2021-03 solicited
comments on whether relief from the physical presence requirement
should be made permanent and, if made permanent, what, if any,
procedural safeguards would be necessary to reduce the risk of fraud,
spousal coercion, or other abuse in the absence of a physical presence
requirement. Notice 2021-03 also stated that any permanent modification
to the physical presence requirement would be made through the
regulatory process, giving stakeholders an opportunity to provide
additional comments.
Notice 2021-40 solicited general and specific comments on whether
permanent guidance modifying the physical presence requirement should
be issued. Specifically, the Treasury Department and the IRS requested
comments regarding: (1) how the temporary removal of the physical
presence requirement for participant elections required to be witnessed
by a plan representative or a notary public has affected costs and
burdens for all parties (for example, participants, spouses, and plans)
and whether there are costs and burdens associated with the physical
presence requirement that support modifying the requirement on a
permanent basis; (2) whether there is evidence that the temporary
removal of the physical presence requirement has resulted in fraud,
spousal coercion, or other abuse, and how, if the physical presence
requirement is permanently modified, increased fraud, spousal coercion,
or other abuse may be likely to result from that modification; (3) how
participant elections are being witnessed, or are expected to be
witnessed, as the COVID-19 pandemic abates (for example, whether the
availability of in-person notarization has returned, or is expected to
return, to pre-COVID-19 pandemic levels); (4) if guidance permanently
modifying the physical presence requirement is issued, what procedures
should be established to provide the same safeguards for participant
elections as are provided through the physical presence requirement;
and (5) if guidance permanently modifying the physical presence
requirement is issued, whether the guidance should establish procedures
for witnessing by plan representatives that are different from
procedures for witnessing by notaries public.
2. Commenters Supporting Remote Witnessing
Commenters supporting remote witnessing for spousal consents made
several arguments in support of adding remote witnessing as a permanent
alternative to the physical presence requirement. Supporters argued
that the remote witnessing process, in particular remote witnessing by
a notary public, is easy to use, reduces the time it takes to process a
distribution, and saves participants and beneficiaries both time and
money.\6\ For example, two commenters stated that remote witnessing by
a notary public takes about 8 minutes on average. In addition,
supporters argued that remote witnessing provides a necessary
alternative for participants and spouses with mobility challenges,
health concerns, and long commute times.
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\6\ Another commenter addressed fees, stating that fees are
imposed for both remote and in-person notarizations, are regulated
by State law, and are generally equivalent. However, another
commenter supporting remote witnessing argued that fees for remote
witnessing by a notary public are generally higher than for in-
person notarization, so that there is a cost associated with remote
witnessing by a notary public. In addition, a commenter opposing
remote witnessing argued that in-person notarization is usually free
or has nominal fees, as compared to generally higher fees for remote
witnessing by a notary public.
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In response to concerns about potential fraud, supporters of remote
witnessing for spousal consents argued that State notarization laws
allowing remote witnessing have strict guidelines to help prevent
fraudulent activity, including knowledge-based authentication and
credential analysis. Supporters also noted that, during the period of
remote witnessing permitted by the temporary relief notices, plans had
not reported any evidence of fraud, spousal coercion, or other abuse.
In addressing whether additional safeguards should be added to the
requirements for remote witnessing of spousal consents, supporters of
remote witnessing generally argued that the safeguards provided in the
temporary relief notices are adequate. They also pointed out that
technological advances (such as real-time ID verification, electronic
authentication standards, and digital recording and storage) have the
potential to make the remote witnessing process more secure than the
in-person witnessing process.
Some supporters of remote witnessing of spousal consents argued
against establishing procedures for remote witnessing by a plan
representative that differ from the procedures for a notary public.
However, others argued that separate rules may be warranted because a
plan representative (unlike a notary public) is not subject to any
State oversight or mandated procedures for witnessing. One commenter
suggested requiring that plan representatives use secure two-way live
audio-video communication, record the audio-video communication, and
store the audio-video recording.
Many supporters of remote witnessing of spousal consents supported
a rule preventing a plan from requiring remote witnessing for spousal
consents. They argued that a spouse should be able to choose to have a
spousal consent witnessed in person, even if the plan permits remote
witnessing.
Finally, one supporter of remote witnessing of spousal consents
suggested clarification that the protections for participant elections
made with an electronic medium set forth in Sec. 1.401(a)-21(d) also
apply to spousal elections made with an electronic medium. For example,
the commenter suggested requiring that the system be designed to
preclude anyone other than a spouse from giving consent and that a
spouse be given a reasonable opportunity to review, confirm, modify, or
rescind a spousal consent before it becomes effective.
[[Page 80504]]
3. Commenters Opposing Remote Witnessing
Commenters opposing remote witnessing for spousal consents made
several arguments in favor of retaining the physical presence
requirement without modification. In particular, they argued that there
is no longer a public health emergency justification for waiving the
physical presence requirement, that the temporary relief notices were a
temporary measure to address a national public health emergency, and
that social distancing requirements and other measures have eased, so
there is no longer a sufficient rationale for changing the physical
presence requirement.
In addition, in response to statements by commenters that there has
been no evidence of fraud during the period of the temporary relief
granted under the temporary relief notices, opponents of remote
witnessing for spousal consents argued that it usually takes many years
for evidence of fraud to surface and that investigating and resolving
allegations of fraud can take years. Opponents of remote witnessing
also argued that a notary public or plan representative witnessing a
spousal consent remotely, unlike a notary public or plan representative
witnessing a spousal consent in-person, cannot check for signs of ID
tampering or physically inspect ID security features intended to
prevent forgeries. They further argued that knowledge-based
authentication is not effective for a married couple because spouses
are likely to know key facts about each other. With respect to
detecting spousal coercion and pressure, opponents of remote witnessing
of spousal consents argued that remote witnessing is inferior to in-
person witnessing. For example, a commenter argued that a webcam's
field of vision is narrow and cannot see individuals outside the field
of vision who may be exerting undue influence on a spouse signing a
consent. Opponents of remote witnessing for spousal consents noted that
a conflict of interest may exist between spouses over the form and
timing of retirement distributions and loans, so that a participant may
put significant pressure on a spouse to waive spousal rights.
In addressing whether additional safeguards should be added to the
requirements for remote witnessing of spousal consents in the temporary
relief notices, opponents of remote witnessing for spousal consents
argued that, if remote witnessing were permitted, the scope of the
current safeguards in Sec. 1.401(a)-21(d) should be clarified. For
example, plans should be required to--(1) send to a spouse who provides
spousal consent certain documents, such as a confirmation of the
consent (separate from documents sent to a participant) in a manner
that ensures actual receipt, (2) make a visual recording of the consent
process, and (3) retain all critical plan records with respect to a
participant election or spousal consent. They also suggested that the
Treasury Department and the IRS impose additional protections, such as
requiring that plans allow spouses to choose to have a spousal consent
witnessed in person and providing guidance on post-consent
confirmations.
Explanation of Provisions
A. Overview
The proposed regulation modifies the participant election rules in
Sec. 1.401(a)-21(d) in two significant ways. First, the proposed
regulation sets forth alternatives to the physical presence requirement
in Sec. 1.401(a)-21(d)(6) for the witnessing of a spousal consent.
These alternatives permit a spousal consent to be witnessed remotely by
a notary public or plan representative, but only if certain conditions
are satisfied. Second, the proposed regulation clarifies that the
protections in Sec. 1.401(a)-21(d) that apply to participant elections
made using an electronic medium also apply to spousal consents made
using an electronic medium. As part of that clarification, the proposed
regulation modifies existing Example 3 in Sec. 1.401(a)-21(f), which
illustrates the electronic transmission of a participant election for a
plan loan and related notarized spousal consent, to clarify that the
protections in Sec. 1.401(a)-21(d) apply to the spousal consent. The
proposed regulation also makes other minor conforming changes.
B. Remote Witnessing of Spousal Consents
Section 1.401(a)-21(d)(6)(i) of the proposed regulation generally
retains the physical presence requirement set forth in the existing
regulation. The physical presence requirement provides that, in the
case of a spousal consent that is required to be witnessed by a notary
public or a plan representative (such as a spousal consent under
section 417), the signature of the person signing the spousal consent
must be witnessed in the physical presence of a notary public or plan
representative.
However, the proposed regulation also provides two alternatives to
the physical presence requirement for spousal consents. These two
alternatives are similar to the alternatives in the temporary relief
notices issued in response to the COVID-19 pandemic. For more
information about the temporary relief notices, see Part C in the
Background section of this preamble, under the heading Notices Issued
in Response to COVID-19 Pandemic.
1. Remote Witnessing by Notary Public
Proposed Sec. 1.401(a)-21(d)(6)(ii)(A) sets forth remote
witnessing rules for spousal consents witnessed by a notary public. The
proposed regulation provides that, as an alternative to satisfying the
physical presence requirement, a plan may accept a spousal consent
witnessed remotely by a notary public, provided that (1) the signature
of the person signing the spousal consent is witnessed by the notary
public using live audio-video technology, (2) the requirements in Sec.
1.401(a)-21(d) for spousal consents are satisfied, and (3) the remote
witnessing is consistent with State law requirements that apply to the
notary public. This alternative is substantially similar to the
temporary relief from the physical presence requirement provided in the
temporary relief notices for remote witnessing by a notary public.
Section 1.401(a)-21(d)(6)(ii)(A)(2) of the proposed regulation
requires that a plan that accepts spousal consents witnessed remotely
by a notary public, as described in proposed Sec. 1.401(a)-
21(d)(6)(ii)(A)(1), must also accept spousal consents witnessed in the
physical presence of a notary public. Both supporters and opponents of
remote witnessing suggested this requirement (which was also included
in the temporary relief notices providing extensions).
2. Remote Witnessing by Plan Representative
The proposed regulation also sets forth remote witnessing rules for
spousal consents witnessed by a plan representative. Proposed Sec.
1.401(a)-21(d)(6)(ii)(B) provides that, as an alternative to satisfying
the physical presence requirement, a plan may accept a spousal consent
witnessed remotely by a plan representative, provided that (1) the
signature of the person signing the spousal consent is witnessed by a
plan representative using live audio-video technology, (2) the
requirements in Sec. 1.401(a)-21(d) for spousal consents are
satisfied, and (3) the remote witnessing satisfies the following five
requirements described in proposed Sec. 1.401(a)-21(d)(6)(ii)(B)(1)
through (5):
First, the person signing the spousal consent must present a valid
photo ID
[[Page 80505]]
to the plan representative during the live audio-video conference. For
example, the person signing the spousal consent may not merely transmit
a copy of the photo ID to the plan representative prior to or after the
witnessing. Second, the live audio-video conference must allow for
direct interaction between the person signing the spousal consent and
the plan representative. A pre-recorded video of the person signing the
spousal consent does not satisfy this requirement. Third, the person
signing the spousal consent must transmit by electronic means a legible
copy of the signed document directly to the plan representative on the
same date that the spousal consent is signed. Fourth, after receiving
the signed spousal consent, the plan representative must acknowledge
that the signature has been witnessed by the plan representative and
transmit the signed spousal consent, including the acknowledgement,
back to the person signing the spousal consent under a system that
satisfies the applicable notice requirements in Sec. 1.401(a)-21(c).
Fifth, a recording of the audio-video conference during which the
spousal consent was signed remotely must be made by the plan
representative and, consistent with Sec. 1.401(a)-21(a)(3)(ii),\7\
must be retained by the plan in accordance with section 6001 (which
provides rules relating to the maintenance of records, statements, and
special returns). The first four requirements are similar to the
requirements in the temporary relief notices, and the fifth requirement
is an additional requirement suggested by commenters both supporting
and opposing remote witnessing.
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\7\ Section 1.401(a)-21(a)(3)(ii) provides that the rules in the
regulations do not alter the otherwise applicable requirements under
the Code, such as the requirements relating to tax reporting, tax
records, or substantiation of expenses, and refers to section 6001
for rules relating to the maintenance of records, statements, and
special returns. It also refers to section 101(e) of E-SIGN, which
provides that if an electronic record of an applicable notice or a
participant election is not maintained in a form that is capable of
being retained and accurately reproduced for later reference, then
the legal effect, validity, or enforceability of the electronic
record may be denied.
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Section 1.401(a)-21(d)(6)(iii) of the proposed regulation continues
to include rules that are in the existing regulation relating to
electronic notarization. In particular, the proposed regulation
provides that, if the physical presence requirements (or the
alternative remote witnessing requirements) are satisfied, an
electronic notarization acknowledging a signature (in accordance with
section 101(g) of E-SIGN and State law applicable to a notary public)
will not be denied legal effect.
C. Clarifying That Existing Special Rules for Participant Elections
Apply to Spousal Consents
The proposed regulation clarifies that the five special rules
regarding use of an electronic medium in existing Sec. 1.401(a)-21(d)
apply to spousal consents. First, the electronic medium under an
electronic system used to make a participant election or spousal
consent must be a medium that the person who is eligible to make the
election or consent is effectively able to access. Second, the
electronic system used in making a participant election or spousal
consent must be reasonably designed to preclude any person other than
the appropriate person from making the participant election or spousal
consent. Whether this condition is satisfied is based on facts and
circumstances, including whether the participant election or spousal
consent has the potential for a conflict of interest between the
persons involved in the election or consent. Third, the electronic
system used in making a participant election or spousal consent must
provide the person making the election or consent with a reasonable
opportunity to review, confirm, modify, or rescind the terms of the
election or consent before it becomes effective. Fourth, the person
making the participant election or spousal consent must receive, within
a reasonable time, a confirmation of the effect of the election or
consent through either a written paper document or an electronic medium
under a system that satisfies the requirements of Sec. 1.401(a)-21(b)
or (c) (as if the confirmation were an applicable notice). Fifth, for
spousal consents required to be witnessed by a plan representative or a
notary public, the spousal consent must be witnessed in accordance with
proposed Sec. 1.401(a)-21(d)(6).
The requirements regarding use of an electronic medium in existing
Sec. 1.401(a)-21(d) apply to participant elections, and that term is
defined broadly in Sec. 1.401(a)-21(e)(6) to include any consent,
election, request, agreement, or similar communication made by or from
a participant, beneficiary, alternative payee, or an individual
entitled to benefits. Under this broad definition, structured for
simplicity, a participant election includes a spousal consent. However,
in responding to the request for comments on whether to add spousal
protections, commenters both supporting and opposing remote witnessing
suggested explicitly applying the safeguards in Sec. 1.401(a)-21(d) to
spousal consents, including the safeguard that confirmation of the
spousal consent be provided to the spouse. Although these safeguards
already apply to spousal consents under existing Sec. 1.401(a)-21(d),
in response to these comments, the Treasury Department and the IRS
believe that it is helpful to clarify and emphasize that these
protections apply to spousal consents.
Accordingly, the proposed regulation includes three clarifications
with respect to spousal consents. First, the proposed regulation
provides a separate definition for spousal consent. Section 1.401(a)-
21(e)(8) of the proposed regulation defines a spousal consent as a
written consent signed by a participant's spouse that meets the
requirements of section 417(a)(2)(A). Second, as described in the
preceding paragraph, amendments are made in Sec. 1.401(a)-21(d) to
clarify that each special rule regarding use of an electronic medium
for participant elections applies to spousal consents. Third, the
proposed regulation modifies Example 3 in Sec. 1.401(a)-21(f) to
clarify how the protections in Sec. 1.401(a)-21(d) apply to spousal
consents. Example 3 in existing Sec. 1.401(a)-21(f) illustrates the
application of Sec. 1.401(a)-21(d) to a participant election for a
plan loan and a related notarized spousal consent. The example
describes how a plan can satisfy the requirements in Sec. 1.401(a)-
21(d)(4) and (5), by providing the participant an opportunity to review
the election and a confirmation of the election. However, the example
is silent on how those requirements apply to the participant's spouse
with respect to the spousal consent. The modified example addresses the
application of those requirements with respect to the spousal consent.
The protections in Sec. 1.401(a)-21(d) (as clarified by the
proposed regulation), including the ability for a spouse to review and
rescind a spousal consent, provide spouses using an electronic medium
to sign a spousal consent (including the use of remote witnessing,
whether by a notary public or a plan representative) with protections
that are not provided to spouses who do not sign spousal consents using
an electronic medium. Section 1.401(a)-20, Q&A-30, provides that, in
general, a plan may preclude a spouse from revoking consent once it has
been given, but that a participant must always be allowed to change an
election during the applicable election period. However, as provided in
existing Sec. 1.401(a)-21(d) and clarified in this proposed
regulation, Sec. 1.401(a)-21(d)(4) requires a plan to give the spouse,
for a spousal consent made
[[Page 80506]]
using an electronic medium that is subject to Sec. 1.401(a)-21(d), a
reasonable opportunity to review, confirm, modify, or rescind the terms
of the spousal consent before it becomes effective.
D. Balancing of Interests
The Treasury Department and the IRS understand that there are
strongly held points of view both in support of and in opposition to
remote witnessing. As previously discussed in Part D of the Background
section of this preamble, under the heading Comments Relating to Remote
Witnessing of Spousal Consents, commenters supporting remote witnessing
argued that remote witnessing provides a valuable option to
participants and spouses (including those with limited mobility), by
offering an essential convenience during a period in which more people
rely on technological advances for their financial transactions. On the
other hand, commenters opposing remote witnessing argued that spousal
pension rights particularly affect retirement security for women and
that any decision to waive those rights should be afforded maximum
safeguards.\8\
---------------------------------------------------------------------------
\8\ The Treasury Department and the IRS have provided sample
language, in Notice 97-10, 1997-2 IRB 41, which is designed to make
it easier for spouses of participants to understand their rights to
survivor annuities under qualified plans. The language is designed
to assist plan administrators in preparing spousal consent forms
that meet the statutory requirements.
---------------------------------------------------------------------------
In drafting the proposed regulation, the Treasury Department and
the IRS have worked to strike a balance between the competing interests
identified by commenters by offering remote witnessing as an option to
those who elect to use it, but still requiring conditions on remote
witnessing that are either similar to or more protective than the
conditions in the temporary relief notices. Many of these conditions,
including prohibiting a plan from requiring remote witnessing of
spousal consents by a notary public and requiring that a plan
representative record the audio-video conference during which a spousal
consent is signed remotely (and retain the recording), were suggested
both by commenters supporting and by commenters opposing remote
witnessing.
In addition, the Treasury Department and the IRS believe that, by
clarifying that the protections in Sec. 1.401(a)-21(d) apply both to
participant elections and spousal consents, the proposed regulation
emphasizes several essential protections for a spouse using an
electronic medium to sign a spousal consent. Those protections include
requiring a plan to send a spouse confirmation of a spousal consent
separate from the documents sent to the participant making the election
and giving the spouse the ability to review and rescind the spousal
consent.
Proposed Applicability Date
This regulation is proposed to apply beginning on the date that is
six months after publication of the Treasury decision adopting these
rules as a final regulation in the Federal Register. Prior to the
applicability date of the final regulation, taxpayers may rely on the
rules set forth in this notice of proposed rulemaking.
Availability of IRS Documents
For copies of recently issued revenue procedures, revenue rulings,
notices and other guidance published in the Internal Revenue Bulletin,
please visit the IRS website at <a href="http://www.irs.gov">www.irs.gov</a> or contact the
Superintendent of Documents, U.S. Government Publishing Office,
Washington, DC 20402.
Special Analyses
I. Regulatory Impact Analysis
This proposed regulation is not subject to review under section
6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement
(April 11, 2018) between the Treasury Department and the Office of
Management and Budget regarding review of tax regulations.
II. Paperwork Reduction Act
The collections of information referenced in this proposed
regulation were previously reviewed and approved by the Office of
Management and Budget in accordance with the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)) under control number 1545-1632.
Comments on the collection of information and the accuracy of
estimated average annual burden and suggestions for reducing this
burden should be sent to the Office of Management and Budget, Attn:
Desk Officer for the Department of the Treasury, Office of Information
and Regulatory Affairs, Washington, DC 20503, with copies to the
Internal Revenue Service, Attn: IRS Reports Clearance Officer,
SE:W:CAR:MP:T:T:SP; Washington, DC 20224. Comments on the collection of
information should be received by March 30, 2023.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by the Office of Management and Budget.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by 26 U.S.C. 6103.
III. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, it is hereby certified
that this regulation will not have a significant economic impact on a
substantial number of retirement plans, or their administrators and
sponsors. This certification is based on several factors. First, the
provisions of the proposed regulation that permit the remote witnessing
of spousal consents are voluntary; plans are not required to permit
remote witnessing, and spouses are not required to use remote
witnessing even if a plan sponsor chooses to make remote witnessing
available as an option under its plan. Accordingly, it is anticipated
that a sponsor will permit remote witnessing under its plan only if the
sponsor concludes that remote witnessing is more convenient and less
burdensome for the plan and its participants and beneficiaries.
Similarly, it is anticipated that a spouse in a plan that permits
remote witnessing will use remote witnessing only if the spouse
concludes that remote witnessing is more convenient and less
burdensome. Further, the requirements for remote witnessing in the
proposed regulation are substantially similar to requirements already
imposed under the temporary relief notices, and the new requirements
imposed under the proposed regulation with respect to witnessing by a
plan representative (that is, that the plan must record the audio-video
conference and retain the recording) were suggested by commenters
(including commenters supporting remote witnessing).
Second, the provisions of the proposed regulation relating to the
application of the requirements in Sec. 1.401(a)-21(d) to spousal
consents are merely clarifications of existing regulations. As
previously stated, under existing Sec. 1.401(a)-21, spousal consents
are a subset of participant elections, so that the requirements in
Sec. 1.401(a)-21(d) apply to spousal consents. Thus, this proposed
regulation does not impose new compliance burdens and is not expected
to result in economically meaningful changes in behavior related to
existing Sec. 1.401(a)-21.
For the reasons stated, a regulatory flexibility analysis under the
Regulatory
[[Page 80507]]
Flexibility Act is not required. The Treasury Department and the IRS
invite comments on the impact of this regulation on small entities.
Pursuant to section 7805(f) of the Code, this notice of proposed
rulemaking has been submitted to the Chief Counsel of Advocacy of the
Small Business Administration for comment on its impact on small
business.
Comments and Public Hearing
Before these proposed amendments to the regulation are adopted as a
final regulation, consideration will be given to comments that are
submitted timely to the IRS as prescribed in the preamble under the
ADDRESSES section. The Treasury Department and the IRS request comments
on all aspects of the proposed regulation. Any electronic comments and
paper comments submitted will be made available at <a href="http://www.regulations.gov">www.regulations.gov</a>
or upon request.
A telephonic public hearing has been scheduled for April 11, 2023,
beginning at 10 a.m. ET. The rules of 26 CFR 601.601(a)(3) apply to the
hearing. Persons who wish to present oral comments by telephone at the
public hearing must submit electronic or written comments and an
outline of the topics to be addressed and the time to be devoted to
each topic by March 30, 2023 as prescribed in the preamble under the
ADDRESSES section. For those requesting to speak during the public
hearing, send an outline of topic submissions electronically via the
Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a> (indicate IRS and
REG-114666-22).
Individuals who want to testify (by telephone) at the public
hearing must send an email to <a href="/cdn-cgi/l/email-protection#74040116181d171c1115061d1a1307341d06075a131b02"><span class="__cf_email__" data-cfemail="15656077797c767d7074677c7b7266557c67663b727a63">[email protected]</span></a> to receive the
telephone number and access code for the public hearing. The subject
line of the email must contain the regulation number REG-114666-22 and
the word TESTIFY. For example, the subject line may say: Request to
TESTIFY at Hearing for REG-114666-22. The email should include a copy
of the speaker's public comments and outline of topics. Individuals who
want to attend (by telephone) the public hearing must also send an
email to <a href="/cdn-cgi/l/email-protection#35454057595c565d5054475c5b5246755c47461b525a43"><span class="__cf_email__" data-cfemail="730306111f1a101b1612011a1d1400331a01005d141c05">[email protected]</span></a> to receive the telephone number and
access code for the public hearing. The subject line of the email must
contain the regulation number REG-114666-22 and the word ATTEND. For
example, the subject line may say: Request to ATTEND Hearing for REG-
114666-22. To request special assistance during the public hearing,
contact the Publications and Regulations Branch of the Office of
Associate Chief Counsel (Procedure and Administration) by sending an
email to <a href="/cdn-cgi/l/email-protection#24545146484d474c4145564d4a4357644d56570a434b52"><span class="__cf_email__" data-cfemail="98e8edfaf4f1fbf0fdf9eaf1f6ffebd8f1eaebb6fff7ee">[email protected]</span></a> (preferred) or by telephone at (202)
317-5177 (not a toll-free number).
A period of 10 minutes will be allocated to each person for making
comments. After the deadline for receiving outlines has passed, the IRS
will prepare an agenda containing the schedule of speakers. Copies of
the agenda will be made available at <a href="http://www.regulations.gov">www.regulations.gov</a>, search IRS
and REG-114666-22. Copies of the agenda will also be available by
emailing a request to <a href="/cdn-cgi/l/email-protection#ea9a9f88868389828f8b9883848d99aa839899c48d859c"><span class="__cf_email__" data-cfemail="f8888d9a94919b909d998a91969f8bb8918a8bd69f978e">[email protected]</span></a>. Please put ``REG-114666-
22 Agenda Request'' in the subject line of the email.
Drafting Information
The principal authors of this regulation are Arslan Malik and
Pamela Kinard, Office of Associate Chief Counsel (Employee Benefits,
Exempt Organizations, and Employment Taxes (EEE)). However, other
personnel from the IRS and the Treasury Department participated in the
development of this regulation.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, the Treasury Department and the IRS are proposing to
amend 26 CFR part 1 as follows:
PART 1--INCOME TAXES
0
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
0
Par. 2. Section 1.401(a)-21 is amended by:
0
1. Revising the section heading;
0
2. Revising the first sentence of paragraph (a)(1)(i) and the heading
of paragraph (a)(1)(ii);
0
3. Revising paragraphs (a)(1)(ii)(A) and (C);
0
4. Revising paragraphs (a)(2)(i) and (ii);
0
5. Revising the heading of paragraph (a)(2)(iii);
0
6. Revising the last sentence of paragraph (a)(3)(i) and revising
paragraph (a)(3)(ii);
0
7. Revising the heading and first sentence of paragraph (a)(4);
0
8. Revising paragraph (d);
0
9. Revising paragraphs (e)(4) and (6) and adding paragraph (e)(8);
0
10. In paragraph (f), designating Examples 1 through 6 as paragraphs
(f)(1) through (6), respectively;
0
11. Revising newly designated paragraph (f)(3);
0
12. Revising paragraph (g).
The revisions and addition read as follows:
Sec. 1.401(a)-21 Rules relating to the use of an electronic medium
to provide applicable notices and to make participant elections and
spousal consents.
(a) * * *
(1) * * *
(i) * * * This section provides rules relating to the use of an
electronic medium to provide applicable notices and to make participant
elections and spousal consents with respect to retirement plans,
employee benefit arrangements, and individual retirement plans
described in paragraph (a)(2) of this section. * * *
(ii) Notices, elections, and consents required to be in writing or
in written form--(A) In general. The rules of this section must be
satisfied for an electronic medium to be used to provide an applicable
notice or make a participant election or spousal consent if the notice,
election, or consent is required to be in writing or in written form
under the Internal Revenue Code, Department of Treasury regulations, or
other guidance published in the Internal Revenue Bulletin by the
Commissioner.
* * * * *
(C) Rules relating to participant elections and spousal consents. A
participant election or a spousal consent that is made using an
electronic medium is treated as being provided in writing or in written
form if the requirements of paragraphs (a)(5) and (d) of this section
are satisfied.
* * * * *
(2) * * *
(i) Notices, elections, or consents under retirement plans. The
rules of this section apply to any applicable notice, participant
election, or spousal consent relating to the following retirement
plans: a qualified retirement plan under sections 401(a) or 403(a); a
section 403(b) plan; a simplified employee pension (SEP) under section
408(k); a simple retirement plan under section 408(p); or an eligible
governmental plan under section 457(b).
(ii) Notices or elections under other employee benefit
arrangements. The rules of this section also apply to any applicable
notice or participant election relating to the following employee
benefit arrangements: an accident and health plan or arrangement under
sections 104(a)(3) and 105; a cafeteria plan under section 125; an
educational assistance program under section 127; a qualified
transportation fringe program under section 132; an Archer MSA under
section 220; or a health savings account under section 223.
[[Page 80508]]
(iii) Notices or elections under individual retirement plans. * * *
(3) * * *
(i) * * * The rules in this section also do not apply to section
411(a)(3)(B) of the Code (relating to suspension of benefits), section
4980B(f)(6) (relating to an individual's COBRA rights), or any other
Code provision over which the Department of Labor or Pension Benefit
Guaranty Corporation has similar interpretative authority.
(ii) Recordkeeping and other requirements. The rules in this
section apply only with respect to applicable notices, participant
elections, and spousal consents relating to a person's rights under a
retirement plan, an employee benefit arrangement, or an individual
retirement plan. Thus, the rules in this section do not alter the
otherwise applicable requirements under the Code, such as the
requirements relating to tax reporting, tax records, or substantiation
of expenses. See section 6001 for rules relating to the maintenance of
records, statements, and special returns. See also section 101(e) of E-
SIGN, which provides that if an electronic record of an applicable
notice, a participant election, or a spousal consent is not maintained
in a form that is capable of being retained and accurately reproduced
for later reference, then the legal effect, validity, or enforceability
of the electronic record may be denied.
(4) General requirements related to applicable notices, participant
elections, and spousal consents. The rules of this section supplement
the general requirements related to each applicable notice, participant
election, and spousal consent. * * *
* * * * *
(d) Special rules for participant elections and spousal consents--
(1) In general. This paragraph (d) is satisfied for participant
elections or spousal consents if the conditions described in paragraphs
(d)(2) through (6) of this section are satisfied.
(2) Effective ability to access. The electronic medium under an
electronic system used to make a participant election or spousal
consent must be a medium that the person who is eligible to make the
election or consent is effectively able to access. If the appropriate
person is not effectively able to access the electronic medium for
making the election or consent, the election or consent will not be
treated as made available to that person. Thus, for example, the
election will not be treated as made available for purposes of the
rules under section 401(a)(4).
(3) Authentication. The electronic system used in making a
participant election or spousal consent must be reasonably designed to
preclude any person other than the appropriate person from making the
election or consent. Whether this condition is satisfied is based on
facts and circumstances, including whether the election or consent has
the potential for a conflict of interest between the persons involved
in the election or consent.
(4) Opportunity to review. The electronic system used in making a
participant election or spousal consent must provide the person making
the election or consent with a reasonable opportunity to review,
confirm, modify, or rescind the terms of the election or consent before
the election or consent becomes effective.
(5) Confirmation of action. The person making the participant
election or spousal consent must receive, within a reasonable time, a
confirmation of the effect of the election or the consent under the
terms of the plan or arrangement through either a written paper
document or an electronic medium under a system that satisfies the
requirements of either paragraph (b) or (c) of this section (as if the
confirmation were an applicable notice).
(6) Spousal consents required under the Code to be witnessed by a
notary public or a plan representative--(i) Witnessing of spousal
consent in physical presence of notary public or plan representative.
Except as provided in paragraph (d)(6)(ii) of this section, in the case
of a spousal consent that is required to be witnessed by a notary
public or a plan representative (such as a spousal consent under
section 417), the signature of the person signing the consent must be
witnessed in the physical presence of a notary public or a plan
representative.
(ii) Alternative to witnessing of spousal consent in physical
presence of notary public or plan representative--(A) Remote witnessing
of spousal consent by notary public--(1) In general. As an alternative
to witnessing of a spousal consent in the physical presence of a notary
public described in paragraph (d)(6)(i) of this section, a plan may
accept a consent witnessed remotely by a notary public if the signature
of the person signing the consent is witnessed by the notary public
using live audio-video technology, the requirements of paragraph (d) of
this section for consents are satisfied, and the remote witnessing is
consistent with State law requirements that apply to the notary public.
(2) In-person notarization must be accepted by plan. A plan that
accepts spousal consents witnessed remotely by a notary public must
also accept consents witnessed in the physical presence of a notary
public.
(B) Remote witnessing of spousal consent by plan representative. As
an alternative to witnessing of a spousal consent in the physical
presence of a plan representative described in paragraph (d)(6)(i) of
this section, a plan may accept a consent witnessed remotely by a plan
representative if the signature of the person signing the consent is
witnessed by the plan representative using live audio-video technology,
the requirements of paragraph (d) of this section are satisfied, and
the additional requirements described in paragraphs (d)(6)(ii)(B)(1)
through (5) of this section are satisfied.
(1) Presentation of valid photo ID. The person signing the spousal
consent must present a valid photo ID to the plan representative during
the live audio-video conference (for example, the person signing the
consent may not merely transmit a copy of the photo ID to the plan
representative prior to or after the witnessing).
(2) Direct interaction. The live audio-video conference must allow
for direct interaction between the person signing the spousal consent
and the plan representative (for example, a pre-recorded video of the
person signing the consent is not sufficient).
(3) Same-day document transmission. The person signing the spousal
consent must transmit by electronic means a legible copy of the signed
document directly to the plan representative on the same date that the
document is signed.
(4) Plan representative acknowledgement. After receiving the signed
document, the plan representative must acknowledge that the signature
has been witnessed by the plan representative in accordance with
paragraph (d)(6)(ii)(B) of this section and transmit the signed
document, including the acknowledgement, back to the person signing the
spousal consent under a system that satisfies the applicable notice
requirements in paragraph (c) of this section.
(5) Recording and retention of audio-video conference. A recording
of the audio-video conference during which the spousal consent was
signed remotely must be made by the plan representative and, consistent
with paragraph (a)(3)(ii) of this section, must be retained by the plan
in accordance with section 6001.
(iii) Electronic notarization permitted. If the requirements of
paragraph (d)(6)(i) or (d)(6)(ii)(A) of this section are
[[Page 80509]]
satisfied, an electronic notarization acknowledging a signature (in
accordance with section 101(g) of E-SIGN and State law applicable to a
notary public) will not be denied legal effect.
(e) * * *
(4) Electronic record. The term electronic record means an
applicable notice, a participant election, or a spousal consent that is
created, generated, sent, communicated, received, or stored by
electronic media.
* * * * *
(6) Participant election. The term participant election includes
any election, request, agreement, or similar communication made by or
from a participant, beneficiary, alternate payee, or person entitled to
benefits under a retirement plan, employee benefit arrangement, or
individual retirement plan as described in paragraph (a)(2) of this
section.
* * * * *
(8) Spousal consent. The term spousal consent means a written
consent signed by a participant's spouse that meets the requirements of
section 417(a)(2)(A).
(f) * * *
* * * * *
(3) Example 3. (i) Facts involving participant election for plan
loan and related notarized spousal consent. Plan C, a qualified money
purchase pension plan, permits a married participant to request a plan
loan through Plan C's website with the notarized consent of the spouse.
Under Plan C's system for requesting a plan loan, a participant must
enter the participant's account number and personal identification
number (PIN) (in order to preclude any person other than the
participant from making the election) and the participant's email
address. The information entered by the participant must match the
information in Plan C's records in order for the transaction to
proceed. Participant M, a married participant, is effectively able to
access the website available to apply for a plan loan. Participant M
completes the loan documents on Plan C's website.
(A) After receiving the completed loan documents, Plan C notifies
Participant M that Participant M's spouse must sign a spousal consent
for the plan loan that is witnessed by a notary public or plan
representative. The spousal consent form includes sections for the
signature, email address, and mailing address of Participant M's
spouse. Participant M's spouse signs the spousal consent for the plan
loan, and the signature is witnessed in the physical presence of a
notary public. Participant M's spouse provides the notarized spousal
consent to Participant M, and Participant M scans the notarized spousal
consent and uploads it to Plan C's website.
(B) After Plan C receives the spousal consent, Plan C sends an
email to Participant M with attached loan documents, giving Participant
M a reasonable period of time to review and confirm the loan documents
and to determine whether the plan loan should be modified (such as
editing the account number or decreasing the loan amount) or rescinded.
Using the email address provided on the spousal consent form, Plan C
also sends an email to Participant M's spouse that attaches the signed
spousal consent and gives Participant M's spouse a specified reasonable
period of time to review and confirm the spousal consent and to
determine whether the spousal consent should be modified or rescinded.
The email also notifies Participant M's spouse that Participant M's
spouse may request a written paper copy of the signed spousal consent
and that, if Participant M's spouse requests a written paper copy of
the signed spousal consent, it will be provided at no extra charge.
(C) Participant M makes no changes to the loan documents, and
Participant M's spouse makes no changes to the spousal consent. After
Plan C processes the loan documents, including the notarized spousal
consent, Plan C notifies Participant M that the loan documents have
been processed. In addition, the notice provides that Participant M may
request a written paper copy of the loan documents and that, if
Participant M requests a written paper copy of the loan documents, it
will be provided at no charge. Plan C retains an electronic copy of the
loan documents, including the notarized spousal consent, in a form that
is capable of being retained and accurately reproduced for later
reference by all parties.
(ii) Conclusion. In this paragraph (f)(3) (Example 3), the
electronic transmission of the participant election for a plan loan and
related notarized spousal consent satisfies the requirements of
paragraphs (a), (c), and (d) of this section.
* * * * *
(g) Applicability date--(1) In general. Except as otherwise
provided in paragraph (g)(2) of this section, the rules provided in
this section apply to applicable notices provided and to participant
elections and spousal consents made on or after (the date that is six
months after the final regulation is published in the Federal
Register).
(2) Special applicability date rules for periods before the general
applicability date. Section 1.401(a)-21, as it appeared in the April 1,
2022, edition of 26 CFR part 1, applies for periods before the general
applicability date in paragraph (g)(1) of this section.
Melanie R. Krause,
Acting Deputy Commissioner for Services and Enforcement.
[FR Doc. 2022-28327 Filed 12-29-22; 8:45 am]
BILLING CODE 4830-01-P
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</html>Indexed from Federal Register on December 30, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.