September 30, 2021

Internal Revenue Service
Attn: CC:PA:LPD:PR (Notice 2021-40)
Room 5203
P.O. Box 7604
Ben Franklin Station
Washington, DC 20044

Re: Permanent Relief for Remote Witnessing Procedures

In response to the request for comments included in Notice 2021-40, the undersigned organizations write to reiterate our request for the Internal Revenue Service (“Service”) to make permanent its temporary relief from the physical presence requirement for spousal consents, as originally announced in Notice 2020-42 and extended by Notice 2021-03 and Notice 2021-40. The undersigned organizations appreciate the relief and extensions the Service previously announced due to the pandemic. We believe, however, that permanent relief is warranted, even as the pandemic abates. We believe further that it should be made available without the need for a formal rulemaking process.

Permanent Relief Is Warranted Based on Additional Security and Convenience

Remote witnessing has worked well during the pandemic and has allowed retirement plan participants to access their benefits, without unnecessarily jeopardizing their health by physically meeting with a notary public or plan representative. These personal and public health benefits, however, have not been the only benefits of using remote witnessing. Specifically, remote witnessing has proven, under the Service’s temporary relief, to be more secure and more convenient than physical witnessing. Security. Remote witnessing creates a more secure environment for spousal consents than physical witnessing. Just like physical witnessing, remote witnessing provides real-time third-party identity verification by visually comparing a person’s face with a valid photo ID indicating that the person is who they claim to be. However, unlike most physical witnessing, remote witnessing can also easily be recorded and create an electronic audit trail. Additionally, in the case of plans that use a remote online notarization service, plan sponsors can utilize additional levels of fraud prevention that cannot be incorporated into a physical witnessing process. For example, remote online notarization services generally use multi-factor authentication through two forms of identity proofing, including knowledge-based authentication and credential analysis. This provides additional protection for spouses for whom the plan may not have an existing relationship. Under these circumstances, not only is remote witnessing as secure as physical witnessing, it is more secure because of these additional layers of protection.

Notice 2021-40 requests comments on “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.” We now have over a 2 year of experience with remote witnessing. Since the Service first announced its temporary relief from the physical presence requirement, retirement plan service providers have relied on remote online notarizations tens of thousands of times. Notwithstanding this significant volume, we are not aware of any confirmed instances or patterned attempts at fraud related to these remote online notarizations.

We understand that certain groups have asserted to the Service that relief from the physical presence requirement will result in an increase in fraud or abuse. Such commenters should provide concrete evidence, rather than unsupported speculations or anecdotal reporting, that such fraud or abuse has increased and that the physical presence requirement would have prevented it. The undersigned’s members have actual experience with tens of thousands of spousal consents conducted via remote witnessing since the beginning of the pandemic. They can confirm that they see no evidence of increased fraud or abuse, or increased risk of fraud or abuse.