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## Record

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## Text

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.

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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
Secretary (Enforcement).
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
for the matters published during the preceding months. These
monthly indexes are cumulated on a semiannual basis, and are
published in the last Bulletin of each semiannual period.

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

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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

The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue
Bulletins are available at www.irs.gov/irb/.

We Welcome Comments About the Internal Revenue Bulletin

If you have comments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it,
we would be pleased to hear from you. You can email us your suggestions or comments through the IRS Internet Home Page
www.irs.gov) or write to the Internal Revenue Service, Publishing Division, IRB Publishing Program Desk, 1111 Constitution Ave.
NW, IR-6230 Washington, DC 20224.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Airs%3Ab7bfefe60fd9b7f6. Public record. Not legal advice.