The US Internal Revenue Service (IRS) issued news release IR-2020-194 on August 28, approving the temporary use of digital signatures for certain IRS forms that must be filed with the IRS manually. Of note, this list of forms includes Form 8832, Entity Classification Election, which allows an eligible entity to elect how it will be classified for US federal tax purposes. The news release does not, however, cover Internal Revenue Code Section 83(b) election statements, which allows a taxpayer to elect to report income from the transfer of property for the performance of services in the year of such property transfer.
The news release provides a list of certain IRS forms (full list included below) that can be submitted with a digital signature if mailed to the relevant IRS service center address by or on December 31, 2020. The IRS further updated this list of forms on September 10, 2020 (these forms are also included below). In a June 12, 2020 IRS memorandum, IRS services and enforcement employees were notified that they can accept images of signatures (scanned or photographed) and digital signatures (those using encryption techniques) on certain documents including but not limited to “extensions of statute of limitations on assessment or collection . . . and any other statement or form needing the signature of a taxpayer or representative traditionally collected by IRS personnel outside of standard filing procedures.”
The news release expands the number of IRS forms that will be accepted with a digital signature to include specific tax forms filed through “standard filing procedures.” The news release only addresses digital signatures; thus, based on the distinctions drawn between images of signatures and digital signatures in the June 12 memorandum, the news release does not appear to cover scanned or photographed signatures.
The news release explains that the IRS has introduced this temporary change to reduce in-person contact, thereby lessening the risk of taxpayers and tax professionals falling ill during the coronavirus (COVID-19) pandemic. Thus, although these forms will still have to be mailed to the IRS, one layer of in-person contact is potentially removed by allowing digital signatures.
Digital signatures may also ease the administrative burden in having the relevant IRS forms executed. Form 8832, for example, often presents administrative difficulties when the form is for a non-US entity and the responsible party required to sign the form also is not located within the United States; in particular, there may be delays caused by the need to mail executed forms internationally, and even delays due to limited printer access. The news release also appears to confirm that the IRS has previously expected original “wet” signatures on Form 8832, as opposed to a scanned or photographed copy of the executed form.
Of note, the IRS does not specify which digital signature product tax professionals must use. As a result, it is not clear what security and anti–identity theft protocols should be used, if any, to verify the digital signature is true and accurate. However, the guidance provided by the IRS states that “[n]o specific technology is required for this purpose during this temporary deviation.”
In IRS announcement 2013-8, 2013-4 IRB 440, while also seeking public recommendations on “electronic signatures,” the IRS proposed five core electronic signing requirements:
Electronic signatures are permitted on Forms W-8. Under applicable Treasury Regulations, electronic signatures may be accepted by a withholding agent if (1) the act of the electronic signature is effected by the person whose name is on the electronic Form W-8, and (2) the signature must also authenticate and verify the submission. For this purpose, the terms “authenticate” and “verify” have the same meanings as they do when applied to a written signature on a paper Form W-8.
In light of the above guidance, for purposes of the news release (and the forms listed therein), taxpayers should consider using digital signature products that (1) must be effected by the required signatory; and (2) attach the digital signature to the form in the appropriate signature box.
To ensure the IRS accepts the signature, it might be helpful if the digital signature provides (1) the signatory’s name and title (if applicable); (2) the signatory’s email address; and (3) the date and time of the digital signature.
It would also be a helpful practice to ensure a record of the electronic transmission of the digitally signed form is securely saved, should further authentication be required at a later date.
IRS Commissioner Chuck Rettig has stated the IRS understands the importance of digital signatures to the tax community, and while balancing security and protection against identity theft and fraud, the IRS will review processes to determine where long-term actions can be made. While no guidance making digital signature options permanently allowable for the forms addressed in the news release has been released as of the date hereof, it is feasible based on Commissioner Rettig’s statements that more permanent guidance may be forthcoming. Morgan Lewis will continue to review this issue and publish updates as relevant.
While the news release does offer some relief to taxpayers, it is limited to the forms listed below and does not provide relief for other filings that taxpayers must sign and mail to the IRS, e.g., an Internal Revenue Code Section 83(b) election statement, which allows a taxpayer to elect to report income from the transfer of property for the performance of services in the year of such property transfer.
The following forms are listed in the news release:
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our COVID-19 Legal Issue Compendium.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
San Francisco
Gregory Hartker
Sarah-Jane Morin
Silicon Valley
Barton W.S. Bassett
Nicola Y. Liu
Washington, DC
Jennifer Breen
Eric Albers-Fiedler
[1] As of July 31, 2020, the IRS will temporarily accept the duplicate copy of Form 3115 via fax for taxpayers requesting consent to make a change in accounting method under the automatic method change procedures.