You May Even Get a Vaccine Before Needing to go to the Notary; the IRS Has Extended Remote Witnessing of Participant Elections

Seyfarth Synopsis: The IRS has extended the remote notarization relief that gives plans and participants greater flexibility for participant elections, including spousal consents, that must be signed in person and witnessed by a notary or plan representative in order to be valid. The IRS has also requested comments on this relief, including comments as to whether this relief should be made permanent.

As described in our prior post, Notice 2020-4 provides relief from the rule in Treasury Regulation Section 1.401(a)-21(d)(6) that requires the signature of an individual making an election to be witnessed in the physical presence of a plan representative or a notary public. That relief was set to expire on December 31, 2020. In recognition of the continued public health emergency caused by the COVID-19 pandemic, the IRS has issued Notice 2021-3, which extends relief from this physical presence requirement through June 30, 2021.

This extended relief means that physical presence is not required for any participant election witnessed by:

1. A notary public in a state that permits remote notarization; or
2. A plan representative using live audio technology, provided the requirements detailed in our prior post are satisfied.

Notably, Notice 2021-3 also requests comments on this relief, including comments as to whether this relief should be made permanent, and what, if any, procedural safeguards are necessary in order to reduce the risk of fraud, spousal coercion, or other abuse in the absence of a physical presence requirement.

Plan administrators that have already taken advantage of this guidance can continue to benefit from the changes that were put in place through June 30, 2021. Meanwhile, plan administrators that have not yet adopted remote witnessing procedures may consider making these administrative changes in light of the continuing pandemic and indications from the IRS that this guidance may be made permanent.