The IRS has proposed to make permanent its temporary changes to spousal consent rules regarding notary public review of retirement plan elections, according to a proposed rule published in the Federal Register.

The IRS initially issued temporary relief in 2020, as the COVID-19 pandemic soared, that allowed for remote notarizations of spousal consents and other participant elections for retirement plan withdrawals under certain circumstances. The relief was extended in 2021 and was set to expire on December 31, 2022. The proposal to make the relief permanent was published on December 30, 2022.

Prior to the pandemic, Department of Treasury rules required that acceptable spousal consent for a participant selecting retirement plan elections must be given “in the physical presence” of a notary public.

R. Sterling Perkinson, a partner in international law firm Kilpatrick Townsend & Stockton LLP, based in Atlanta, addressed the IRS proposed rule change in a website post. The IRS’ proposed regulations are “generally consistent” with the previous and temporary COVID-19 relief, he wrote, and they may be used in 2023 as the proposed rules are reviewed.

“The proposed regulations provide that taxpayers may rely on the rules before the applicability date of final regulations, so the proposed regulations in effect extend the temporary relief indefinitely.”

Perkinson also noted several modifications and clarifications to the temporary relief:

• Plans that accept remote notarizations must also accept notarizations witnessed in the physical presence of a notary;
• For spousal consents witnessed remotely by a plan representative, instead of a notary public, the plan representative must retain a recording of the audio and video conference in accordance with IRS recordkeeping rules; and
• Remote notarizations are subject to the IRS’ general rules for electronic elections, including that the individual could review, confirm, modify or rescind the election before it becomes effective and receives a confirmation of the election within a reasonable time.

For the proposed rule to be finalized, it must complete the IRS rulemaking process.

“Final regulations are issued after considering the public comments on the proposed regulations,” states the IRS website. “The preamble of a final rule also cites to the underlying NPRM [notice of proposed rulemaking] and other rulemaking history (for example, an ANPRM [advanced notice of proposed rulemaking]), discusses and analyzes public comments received and explains the agency’s final decision. A final regulation is almost always preceded by an NPRM.”

The Treasury Department rule currently states, “In the case of a participant election which 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 is witnessed in the physical presence of a plan representative or a notary public.”

Written or electronic submitted comments on the IRS proposal must be submitted by March 30, and a telephone public hearing has been scheduled for April 7. Commenters may submit electronic submissions through the Federal eRulemaking Portal at www.regulations.gov (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 and the IRS will publish for public availability any comment submitted electronically or on paper to its public docket on www.regulations.gov.

The IRS asked commenters to submit paper submissions addressed to Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. For further information, contact: concentering the regulation, 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, Vivian Hayes at 202-317-5306 or email publichearings@irs.gov.