October 3, 2022

Volume XII, Number 276


September 30, 2022

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No Presence? No Problem: Temporary Relief for Witnessing Spousal Consent Further Extended Through Year-End

Perhaps channeling the old adage of “if it ain’t broke, don’t fix it,” the IRS recently released Notice 2022-27 extending through December 31, 2022 its temporary relief from the requirement that spousal consent for plan distributions or loans be witnessed in person.

As discussed in greater detail in our earlier posts (here and here), in response to the COVID-19 National Emergency, the IRS issued guidance temporarily allowing a notary or plan representative to witness spousal consent electronically via live video, provided certain conditions are met.  This relief was originally issued in June 2020 and due to expire on December 31, 2020, but then was extended twice under the same conditions.

Following those two extensions, the relief was scheduled to expire at the end of this month.  Notice 2022-27 now further extends the relief through the end of 2022.  The conditions for obtaining relief (described in our first post) remain unchanged.

Although the IRS stated that it does not expect a further temporary extension (due to easing public health precautions in connection with the pandemic), the IRS is currently reviewing comments it previously received from stakeholders regarding whether to make the relief permanent.  The Notice reiterates that the IRS will use the formal regulatory process (including an additional notice and comment period) if it proposes permanent changes to the physical presence requirement.

Plan administrators should be aware of this guidance and should continue to ensure that electronic witnessing meets all of the conditions set forth in the temporary relief.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 165

About this Author

Robert M Projansky, Employee Attorney, Proskauer Rose Law FIrm

Robert M. Projansky is a Partner in the Employee Benefits, Executive Compensation & ERISA Litigation Practice Center. His practice covers the full spectrum of employee benefit issues, including advising clients regarding all aspects of pension and welfare plan administration, plan investment issues, health care reform, mergers and terminations, government audits, participant communications, fiduciary responsibility matters and prohibited transactions issues.

Katrina E McCann, Proskauer Rose, Tax Lawyer, ERISA Attorney, Benefits

Katrina McCann is an associate in the Tax Department and a member of the Employee Benefits, Executive Compensation & ERISA Litigation Practice Center.

Katrina previously served as Special Assistant to the Mayor’s Office of Pension and Investments, assisting New York City’s Chief Pension Administrator with projects to improve the benefits administration, board processes, investment decision-making, and governance of City plans with a combined $130 billion under management. Before that she was Special Assistant Corporation Counsel, Pensions...