December 4, 2021

Volume XI, Number 338

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Temporary Relief for Witnessing Spousal Consent Extended for Another Year

Just when we were about to draft our blog reminding plans of the expiration of the temporary relief. . . The IRS has now issued Notice 2021-40 extending for another year the 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 post, in response to the COVID-19 National Emergency, the IRS previously 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 due to expire on December 31, 2020, but last December the IRS issued a notice extending it through June 30, 2021.  Notice 2021-40 now further extends the same relief for another year, through June 30, 2022.

Notably, as it did in its prior extension notice, the IRS is requesting comments on whether it should issue permanent guidance modifying the physical presence requirement.  Notice 2021-40 contains various questions it would like commenters to address in that regard.  Comments are due by September 30, 2021.

Plan administrators must continue to ensure that electronic witnessing meets all of the conditions set forth in the initial temporary relief, outlined here.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 175
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About this Author

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

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...

212-969-3639
Robert M Projansky, Employee Attorney, Proskauer Rose Law FIrm
Partner

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.

212-969-3367
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