Which acts require a “manual” (rather than electronic) signature?

A BenefitsLink discussion yesterday remarked on a service provider’s request for a nonelectronic signature, despite an IRS procedure that permits an electronic signature.

There is no one comprehensive rule that answers questions about the acts or circumstances that require a manual, rather than an electronic, signature.

For some of us, it’s not easy to recall which acts (of those that call for a plan sponsor’s or plan administrator’s signature) permit an electronic, or require a “manual”, signature. So, let’s crowdsource our list.

The focus is on what the three U.S. government agencies—the Treasury department’s Internal Revenue Service (IRS), the Labor department’s Employee Benefits Security Administration (EBSA), and the Pension Benefit Guaranty Corporation (PBGC)—say is permitted or required. If you quickly remember it, next to each description put the abbreviation for the agency that stated a rule or guidance.

I’ll start by putting one entry in each category.

Manual signature required

A plan’s administrator authorizing its service provider to submit the administrator’s Form 5500 report — EBSA — source ???

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Electronic signature permitted

A user’s signature to adopt an IRS-preapproved plan document — IRS — Rev. Proc. 2017–41 § 5.10, 2017-29 I.R.B. 92, 99 (July 17, 2017), https://www.irs.gov/pub/irs-irbs/irb17-29.pdf

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We invite your BenefitsLink neighbors’ praise if you help us complete this list.

2 hours ago, Peter Gulia said:

A plan’s administrator authorizing its service provider to submit the administrator’s Form 5500 report — EBSA — source ???

Best source I am aware of is the EFAST2 FAQ 33a: (https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/efast2-form-5500-processing.pdf)

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Under the e-signature option, service providers that manage the filing process for plans or Direct Filing Entities (DFEs) can get their own EFAST2 signing credentials and submit the electronic Form 5500 for a plan or DFE, or Form 5500, Form 5500-SF or Form 5500-EZ for a plan. The service provider must have specific written authorization from the plan administrator, employer/plan sponsor, or DFE to submit the filing. In addition, the plan administrator, employer/plan sponsor, or person authorized to sign on behalf of the DFE, including the “jurat,” must manually sign a paper copy of the applicable completed form, and the service provider must attach a PDF copy of the manually signed form (without schedules or attachments) to the electronic filing submitted to EFAST2.

I don't know if you are focusing solely on signatures required of the plan administrator but, the enrolled actuary's signature on the Schedule MB/SB must be manual, from the Form 5500 instructions:

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An enrolled actuary must sign Schedule SB. ... Except as otherwise provided in these instructions, a stamped or machine produced signature is not acceptable.

...

The plan’s actuary is permitted to sign the Schedule SB on page one using the actuary’s signature or by inserting the actuary’s typed name in the signature line followed by the actuary’s handwritten initials.

Now I have a question for you - let's say I load a PDF of a document onto my tablet, which has support for a digital pen, and I sign that document using the digital pen on the tablet. If the document requires a "manual" or "handwritten" signature, but states no requirement for ink-on-paper, does my pen-on-tablet signature satisfy that requirement?

C.B. Zeller, thank you for the source about authorizing a service provider to submit a Form 5500 report.

I regret I can’t add much help about an actuary’s signature on Schedule MB/SB. (I’m don’t know any rule, guidance, or practice for this. The defined-benefit pension plans I’ve advised about in recent years are governmental plans.) The instruction you quote is ambiguous. There might be several nonfrivolous interpretations.

BenefitsLink neighbors, let’s keep filling out this list. Which acts:

require an ink-on-paper signature?

require a “manual” signature, but permit it to be delivered by electronic means?

permit an electronic signature?

This is good foundational guidance:

E:\PUBLAW\PUBL229.106 (govinfo.gov)

AMDG, thank you for reminding us about the E-SIGN Act, now a 22-year-old.

That law imposes some constraints on a Federal agency’s rulemaking powers and interpretation powers.

But an act for which an agency calls for a “manual” or even ink-on-paper signature might not be a transaction that must not be denied legal effect because it was done using an electronic signature.

And even when an agency acts beyond its powers, few retirement-plans or retirement-services practitioners want to take on the burdens of challenging the government.

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Most of us like electronic signatures. Which are the acts for which EBSA or IRS asks us to slow down and scribble something that looks like an old-fashioned signature?