IRS extends physical presence requirement relief


The IRS recently issued Notice 2021-40, providing a 12-month extension of the temporary relief from the requirement under Treas. Reg. Sec. 1.401(a)-21(d)(6) that participant elections on certain retirement plans be witnessed by a plan representative or a notary public. The extension runs through June 30, 2022.


This extension of relief is in response to the continuing COVID-19 pandemic and to permit consideration of stakeholder comments—provided pursuant to Notice 2021-40 and Notice 2021-03—related to whether permanent guidance should be issued to modify the physical presence requirement.


Notice 2020-42 initially provided temporary relief from the physical presence requirement through Dec. 31, 2020. Notice 2021-03 extended this temporary relief through June 30, 2021.


Notice 2021-40 maintains the requirement regarding the use of live audio-video technology in order to be eligible for temporary relief.




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