These synopses are intended only as aids to the reader in

HIGHLIGHTS

OF THIS ISSUE





Bulletin No. 2023–4

January 23, 2023

These synopses are intended only as aids to the reader in

identifying the subject matter covered. They may not be

relied upon as authoritative interpretations.

EMPLOYEE PLANS

REG-114666-22, page 437.

The proposed regulation modifies the participant election rules

in §1.401(a)-21(d). The proposed regulation sets forth alternatives to the physical presence requirement in §1.401(a)-21(d)

Finding Lists begin on page ii.

(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. In addition, the proposed regulation clarifies that the

protections in §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.

The IRS Mission

Provide America’s taxpayers top-quality service by helping

them understand and meet their tax responsibilities and enforce the law with integrity and fairness to all.

Introduction

The Internal Revenue Bulletin is the authoritative instrument

of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service

and for publishing Treasury Decisions, Executive Orders, Tax

Conventions, legislation, court decisions, and other items of

general interest. It is published weekly.

It is the policy of the Service to publish in the Bulletin all substantive rulings necessary to promote a uniform application

of the tax laws, including all rulings that supersede, revoke,

modify, or amend any of those previously published in the

Bulletin. All published rulings apply retroactively unless otherwise indicated. Procedures relating solely to matters of internal management are not published; however, statements of

internal practices and procedures that affect the rights and

duties of taxpayers are published.

Revenue rulings represent the conclusions of the Service

on the application of the law to the pivotal facts stated in

the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices,

identifying details and information of a confidential nature are

deleted to prevent unwarranted invasions of privacy and to

comply with statutory requirements.

Rulings and procedures reported in the Bulletin do not have the

force and effect of Treasury Department Regulations, but they

may be used as precedents. Unpublished rulings will not be

relied on, used, or cited as precedents by Service personnel in

the disposition of other cases. In applying published rulings and

procedures, the effect of subsequent legislation, regulations,

court decisions, rulings, and procedures must be considered,

and Service personnel and others concerned are cautioned

against reaching the same conclusions in other cases unless

the facts and circumstances are substantially the same.

The Bulletin is divided into four parts as follows:

Part I.—1986 Code.

This part includes rulings and decisions based on provisions

of the Internal Revenue Code of 1986.

Part II.—Treaties and Tax Legislation.

This part is divided into two subparts as follows: Subpart A,

Tax Conventions and Other Related Items, and Subpart B,

Legislation and Related Committee Reports.

Part III.—Administrative, Procedural, and Miscellaneous.

To the extent practicable, pertinent cross references to these

subjects are contained in the other Parts and Subparts. Also

included in this part are Bank Secrecy Act Administrative

Rulings. Bank Secrecy Act Administrative Rulings are issued

by the Department of the Treasury’s Office of the Assistant

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Part IV.—Items of General Interest.

This part includes notices of proposed rulemakings, disbarment and suspension lists, and announcements.

The last Bulletin for each month includes a cumulative index

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monthly indexes are cumulated on a semiannual basis, and are

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The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate.

January 23, 2023 

Bulletin No. 2023–4

Part IV

Notice of Proposed

Rulemaking

Use of an Electronic

Medium to Make

Participant Elections and

Spousal Consents

REG-114666-22

AGENCY: Internal Revenue Service

(IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

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.

1

ADDRESSES: Commenters are strongly encouraged to submit public comments electronically. Submit electronic

submissions via 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

(“Treasury Department”) and the IRS

will publish for public availability any

comment submitted electronically or on

paper to its public docket on www.regulations.gov. Send paper submissions

to: CC:PA:LPD:PR (REG-114666-22),

room 5203, Internal Revenue Service,

PO 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) 3175306 (not toll-free numbers) or email publichearings@irs.gov (preferred).

SUPPLEMENTARY INFORMATION:

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 §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 §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, Pub. L.

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.

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 §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 §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)

The 2006 final regulations made conforming amendments to §§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.

Bulletin No. 2023–4

437

January 23, 2023

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); §1.401(a)-20, Q&A-8(b) and Q&A24; and §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.

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 representa-

tive 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 §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.

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 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-vid-

eo 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 §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.

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 §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.”

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.

2

January 23, 2023

438

Bulletin No. 2023–4

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 require-

ment. 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.

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 §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.

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

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.

6

Bulletin No. 2023–4

439

January 23, 2023

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 §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.

proposed regulation sets forth alternatives

to the physical presence requirement in

§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 §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 §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 §1.401(a)-21(d) apply

to the spousal consent. The proposed regulation also makes other minor conforming changes.

Explanation of Provisions

1. Remote witnessing by notary public.

A. Overview.

Proposed

§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 proposed regulation modifies the

participant election rules in §1.401(a)21(d) in two significant ways. First, the

January 23, 2023

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.

440

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 §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 §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 §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

§1.401(a)-21(d) for spousal consents are

satisfied, and (3) the remote witnessing

satisfies the following five requirements

described in proposed §1.401(a)-21(d)(6)

(ii)(B)(1) through (5):

First, 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 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

Bulletin No. 2023–4

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 §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 §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.

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 §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

§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 §1.401(a)21(d)(6).

The requirements regarding use of an

electronic medium in existing §1.401(a)21(d) apply to participant elections, and

that term is defined broadly in §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

§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

§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 §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 §1.401(a)-21(f) to clarify how the

protections in §1.401(a)-21(d) apply to

spousal consents. Example 3 in existing

§1.401(a)-21(f) illustrates the application

of §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

§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 §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

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.

7

Bulletin No. 2023–4

441

January 23, 2023

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 §1.401(a)-21(d) and clarified in

this proposed regulation, §1.401(a)-21(d)

(4) requires a plan to give the spouse, for a

spousal consent made using an electronic

medium that is subject to §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

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 tem-

porary 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 §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 www.irs.gov 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

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.

8

January 23, 2023

442

Bulletin No. 2023–4

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 §1.401(a)-21(d) to

spousal consents are merely clarifications of existing regulations. As previously stated, under existing §1.401(a)-21,

spousal consents are a subset of participant elections, so that the requirements

in §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 §1.401(a)-21.

For the reasons stated, a regulatory flexibility analysis under the Regulatory 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

Bulletin No. 2023–4

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 www.regulations.gov 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 www.regulations.

gov (indicate IRS and REG-114666-22).

Individuals who want to testify (by

telephone) at the public hearing must send

an email to publichearings@irs.gov 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 publichearings@irs.gov 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 publichearings@

irs.gov (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.

443

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 www.regulations.gov, search IRS and

REG-114666-22. Copies of the agenda

will also be available by emailing a request to publichearings@irs.gov. 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

Paragraph 1. The authority citation for

part 1 continues to read in part as follows:

Authority: 26 U.S.C. 7805 * * *

Par. 2. Section 1.401(a)-21 is amended

by:

1. Revising the section heading;

2. Revising the first sentence of paragraph (a)(1)(i) and the heading of paragraph (a)(1)(ii);

3. Revising paragraphs (a)(1)(ii)(A)

and (C);

4. Revising paragraphs (a)(2)(i) and

(ii);

5. Revising the heading of paragraph

(a)(2)(iii);

6. Revising the last sentence of paragraph (a)(3)(i) and revising paragraph (a)

(3)(ii);

7. Revising the heading and first sentence of paragraph (a)(4);

8. Revising paragraph (d);

January 23, 2023

9. Revising paragraphs (e)(4) and (6)

and adding paragraph (e)(8);

10. In paragraph (f), designating Examples 1 through 6 as paragraphs (f)(1)

through (6), respectively;

11. Revising newly designated paragraph (f)(3);

12. Revising paragraph (g).

The revisions and addition read as follows:

§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

January 23, 2023

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.

(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. * * *

444

*****

(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)

Bulletin No. 2023–4

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

Bulletin No. 2023–4

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 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.

*****

445

(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

January 23, 2023

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

January 23, 2023

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 gen-

446

eral applicability date in paragraph (g)(1)

of this section.

Melanie R. Krause,

Acting Deputy Commissioner for

Services and Enforcement.

(Filed by the Office of the Federal Register December 29, 2022, 8:45a.m., and published in the issue

of the Federal Register for December 30, 2022, 87

FR 80501)

Bulletin No. 2023–4

Definition of Terms

Revenue rulings and revenue procedures

(hereinafter referred to as “rulings”) that

have an effect on previous rulings use the

following defined terms to describe the

­effect:

Amplified describes a situation where

no change is being made in a prior published position, but the prior position is

being extended to apply to a variation of

the fact situation set forth therein. Thus, if

an earlier ruling held that a principle applied to A, and the new ruling holds that

the same principle also applies to B, the

earlier ruling is amplified. (Compare with

modified, below).

Clarified is used in those instances

where the language in a prior ruling is being made clear because the language has

caused, or may cause, some confusion. It

is not used where a position in a prior ruling is being changed.

Distinguished describes a situation

where a ruling mentions a previously published ruling and points out an essential

difference between them.

Modified is used where the substance

of a previously published position is being

changed. Thus, if a prior ruling held that a

principle applied to A but not to B, and the

new ruling holds that it applies to both A

and B, the prior ruling is modified because

it corrects a published position. (Compare

with amplified and clarified, above).

Obsoleted describes a previously published ruling that is not considered determinative with respect to future transactions.

This term is most commonly used in a ruling

that lists previously published rulings that

are obsoleted because of changes in laws or

regulations. A ruling may also be obsoleted

because the substance has been included in

regulations subsequently adopted.

Revoked describes situations where the

position in the previously published ruling

is not correct and the correct position is

being stated in a new ruling.

Superseded describes a situation where

the new ruling does nothing more than

restate the substance and situation of a

previously published ruling (or rulings).

Thus, the term is used to republish under

the 1986 Code and regulations the same

position published under the 1939 Code

and regulations. The term is also used

when it is desired to republish in a single

ruling a series of situations, names, etc.,

that were previously published over a

period of time in separate rulings. If the

new ruling does more than restate the substance of a prior ruling, a combination of

terms is used. For example, modified and

superseded describes a situation where the

substance of a previously published ruling

is being changed in part and is continued

without change in part and it is desired to

restate the valid portion of the previously published ruling in a new ruling that is

self contained. In this case, the previously

published ruling is first modified and then,

as modified, is superseded.

Supplemented is used in situations in

which a list, such as a list of the names of

countries, is published in a ruling and that

list is expanded by adding further names

in subsequent rulings. After the original

ruling has been supplemented several

times, a new ruling may be published that

includes the list in the original ruling and

the additions, and supersedes all prior rulings in the series.

Suspended is used in rare situations to

show that the previous published rulings

will not be applied pending some future

action such as the issuance of new or

amended regulations, the outcome of cases in litigation, or the outcome of a Service study.

Abbreviations

The following abbreviations in current

use and formerly used will appear in

material published in the Bulletin.

A—Individual.

Acq.—Acquiescence.

B—Individual.

BE—Beneficiary.

BK—Bank.

B.T.A.—Board of Tax Appeals.

C—Individual.

C.B.—Cumulative Bulletin.

CFR—Code of Federal Regulations.

CI—City.

COOP—Cooperative.

Ct.D.—Court Decision.

CY—County.

D—Decedent.

DC—Dummy Corporation.

DE—Donee.

Del. Order—Delegation Order.

DISC—Domestic International Sales Corporation.

DR—Donor.

E—Estate.

EE—Employee.

E.O.—Executive Order.

ER—Employer.

Bulletin No. 2023–4

ERISA—Employee Retirement Income Security Act.

EX—Executor.

F—Fiduciary.

FC—Foreign Country.

FICA—Federal Insurance Contributions Act.

FISC—Foreign International Sales Company.

FPH—Foreign Personal Holding Company.

F.R.—Federal Register.

FUTA—Federal Unemployment Tax Act.

FX—Foreign corporation.

G.C.M.—Chief Counsel’s Memorandum.

GE—Grantee.

GP—General Partner.

GR—Grantor.

IC—Insurance Company.

I.R.B.—Internal Revenue Bulletin.

LE—Lessee.

LP—Limited Partner.

LR—Lessor.

M—Minor.

Nonacq.—Nonacquiescence.

O—Organization.

P—Parent Corporation.

PHC—Personal Holding Company.

PO—Possession of the U.S.

PR—Partner.

PRS—Partnership.

i

PTE—Prohibited Transaction Exemption.

Pub. L.—Public Law.

REIT—Real Estate Investment Trust.

Rev. Proc.—Revenue Procedure.

Rev. Rul.—Revenue Ruling.

S—Subsidiary.

S.P.R.—Statement of Procedural Rules.

Stat.—Statutes at Large.

T—Target Corporation.

T.C.—Tax Court.

T.D.—Treasury Decision.

TFE—Transferee.

TFR—Transferor.

T.I.R.—Technical Information Release.

TP—Taxpayer.

TR—Trust.

TT—Trustee.

U.S.C.—United States Code.

X—Corporation.

Y—Corporation.

Z—Corporation.

January 23, 2023

Numerical Finding List1

Bulletin 2023–4

Announcements:

2023-2, 2023-2 I.R.B. 344

2023-1, 2023-3 I.R.B. 422

Notices:

2023-4, 2023-2 I.R.B. 321

2023-5, 2023-2 I.R.B. 324

2023-6, 2023-2 I.R.B. 328

2023-8, 2023-2 I.R.B. 341

2023-1, 2023-3 I.R.B. 373

2023-2, 2023-3 I.R.B. 374

2023-3, 2023-3 I.R.B. 388

2023-7, 2023-3 I.R.B. 390

2023-9, 2023-3 I.R.B. 402

2023-10, 2023-3 I.R.B. 403

2023-11, 2023-3 I.R.B. 404

Proposed Regulations:

REG-100442-22, 2023-3 I.R.B. 423

REG-146537-06, 2023-3 I.R.B. 436

REG-114666-22, 2023-4 I.R.B. 437

Revenue Procedures:

2023-1, 2023-01 I.R.B. 1

2023-2, 2023-01 I.R.B. 120

2023-3, 2023-01 I.R.B. 144

2023-4, 2023-01 I.R.B. 162

2023-5, 2023-01 I.R.B. 265

2023-7, 2023-01 I.R.B. 305

2023-8, 2023-03 I.R.B. 407

2023-10, 2023-03 I.R.B. 411

2023-11, 2023-03 I.R.B. 417

Revenue Rulings:

2023-1, 2023-2 I.R.B. 309

Treasury Decisions:

9970, 2023-2 I.R.B. 311

9771, 2023-3 I.R.B. 346

A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2022–27 through 2022–52 is in Internal Revenue Bulletin

2022–52, dated December 27, 2022.

1

January 23, 2023

ii

Bulletin No. 2023–4

Finding List of Current Actions on

Previously Published Items1

Bulletin 2023–4

A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2022–27 through 2022–52 is in Internal Revenue Bulletin

2022–52, dated December 27, 2022.

1

Bulletin No. 2023–4

iii

January 23, 2023

Internal Revenue Service

Washington, DC 20224

Official Business

Penalty for Private Use, $300

INTERNAL REVENUE BULLETIN

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