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UPDATE: SEC offers extension for RIAs impacted by COVID-19 (March 2020)
On Friday, March 13, 2020, the U.S. Securities and Exchange Commission issued an order offering registered investment advisers relief from certain filing deadlines. This relief is limited solely to Form ADV and Form PF filing and delivery obligations that would otherwise fall due between March 13, 2020 and April 30, 2020, where the deadline cannot be met “due to circumstances related to current or potential effects of COVID-19.”
ADVOCACY: AICPA comments on the SEC proposed changes to advertising rules (February 2020)
On February 10, the Personal Financial Planning Division submitted comments to the SEC regarding the proposed changes to advertising rules for Investment Advisers. The comments advocate for regulation that is clear, practical and easy to interpret.
UPDATE: SEC votes to adopt rules and interpretations to protect retail investors (June 2019)
On June 5, the SEC voted to adopt a package of rulemakings and interpretations designed to impact the quality and transparency of retail investors’ relationships with investment advisers and broker-dealers. Specifically, these new actions include the new Regulation Best Interest, the new Form CRS Relationship Summary, and two separate interpretations under the Investment Advisers Act of 1940. Last August, the AICPA Personal Financial Planning Legislative and Regulatory Task Force commented on the proposal. Regulation Best Interest and Form CRS will become effective 60 days after they are published in the Federal Register and will include a transition period until June 30, 2020 to give firms sufficient time to come into compliance. AICPA members providing financial planning guidance to individuals are already held to the Statement on Standards in Personal Financial Planning Services, so the standards to which you are held will not change. Read more in the SEC press release and read future editions of PFP News for more information.
ADVOCACY: AICPA Comments on SEC Proposed Regulations (August 2018)
On August 7th, the AICPA Personal Financial Planning Legislative and Regulatory Task Force submitted comments on the recently proposed broker and investment adviser regulations. In the comments, the task force urged the SEC to acknowledge and keep separate the two different business models and standards currently in place. Additionally, emphasis was added on dually registered adviser standards and on how using the term ‘best interest’ is confusing to the public.
UPDATE: DOL Fiduciary Rule Officially Dead (June 2018)
As of June 14th, the DOL Fiduciary Rule is officially no more. June 13th was the final deadline for saving the rule as the government declined to request the U.S. Supreme Court to reconsider a decision to vacate the rule made by the 5th Circuit Court back in March. The SEC is currently considering its own version of the fiduciary rule addressing the standards of conduct for investment professionals.
UPDATE: SEC Launches Searchable Database (May 2018)
Recently, the SEC Action Lookup for Individuals (SALI) was launched in order to help the public easily detect individuals who have a court or commission order against them (filed after Oct 1, 2014). SALI’s search results are not limited to registered investment professionals, setting it apart from many of the other online directories.
UPDATE: DOL Issues Instructions to Rely on the Temporary Enforcement Policy (May 2018)
On May 7, 2018, based on concerns about ambiguity surrounding the DOL Fiduciary rule, the Department issued Field Assistance Bulletin NO. 2018-02 instructing financial institutions to continue to rely upon the temporary enforcement policy (effective through July 1, 2019).
UPDATE: SEC Votes to Pass Proposal of Standards of Conduct for Investment Professionals (April 2018)
On April 18th, the SEC passed a proposal to partially elevate standards for brokers who provide investment advice to retail investors. Only a few rules are suggested to be harmonized between brokers and investment advisers, recognizing that sales and professional business models require different regulation. Read the SEC announcement and summary here and the proposal here. Once published in the Federal Register, there will be a 90 day comment period. Watch future editions of PFP News for any updates, further guidance or developments related to this new rule.
UPDATE: Fifth Circuit Court Vacates DOL Fiduciary Rule (March 2018)
On March 15, 2018, the Fifth Circuit Court of Appeals vacated the DOL fiduciary rule introducing a new element of uncertainty about the future of the rule. Should the DOL decide to appeal the Fifth Circuit decision, the agency has until April 30, 2018. If the DOL decides to let the decision stand, many experts say it would kill the rule either nationally or at least to the Fifth Circuit’s jurisdiction. An agency spokesperson stated that the Labor Department will not be enforcing the rule after March 15th until a decision has been made about whether or not they will file an appeal. Stay updated on developments by reading the latest PFP Newsletter issued weekly by email.
UPDATE: DOL Officially Delays Implementation of Fiduciary Rule (November 2017)
On Monday November 27th, the U.S. Department of Labor released final text delaying implementation of the enforcement mechanisms of its fiduciary duty regulation until the July 1, 2019. The DOL states it needs extra time to conduct a reassessment of the rule's impact on retirement advice and to potentially coordinate with the Securities and Exchange Commission. As of June 9, 2017, only the Impartial Conduct Standards portion of the requirements (including the “best interest” standard) took effect for those delivering advice on retirement assets. The rule was published in the Federal Register on November 29, 2017.
UPDATE: DOL Seeks 18-Month Delay of Fiduciary Rule (November 2017)
On November 1, the U.S. Department of Labor proposed an 18-month extension of the transition period and applicability dates relating to the Fiduciary Rule. Currently, the full impact of the rule, including the BIC Exemption and the Principal Transaction Exemption requirement, is scheduled to take effect on January 1, 2018. The delay, if approved by the White House’s Office of Management and Budget, would move the applicability date to July 1, 2019.
ADVOCACY: AICPA Comments on SEC Request for Information on Standards of Conduct (October 2017)
On October 27, the AICPA’s Personal Financial Planning Legislative and Regulatory Task Force submitted a comment letter regarding the SEC’s request for information on standards of conduct for investment advisers and broker dealers. The AICPA emphasized the importance of objective advice for all individual investors and expressed the importance of anyone representing themselves as investment advisers being held to a fiduciary standard of care. The comments also make clear that requiring disclosures alone do not resolve the issue of conflicted advice and that harmonization of other SEC and FINRA rules would be harmful.
UPDATE: OMB Approves Proposal for 18-Month Delay of DOL Rule’s Phase II (August 2017)
On August 28th, the Office of Management and Budget approved a proposal to delay the transition period and applicability date of the US Department of Labor’s Fiduciary Rule from January 1, 2018 to July 1, 2019. The delay must now be finalized by the Labor Department.
UPDATE: Trump Administration Could Pull Plug on DOL Class-Action Provision (August 2017)
On Friday, August 25th, the Trump administration gave clear signs that it intends to remove the class-action-litigation provision from the DOL Fiduciary Rule. The class-action provision is one of the rule’s most hated components by those opposed to the rule. Due to the high standards to which AICPA members are already held, the new rule should have minimal impact to members who provide pfp advice and adhere to the Statement on Standards in Personal Financial Planning Services.
ADVOCACY: A Move Towards Strengthened Standards for Financial Planners (August 2017)
On August 21st, the AICPA PFP Executive Committee submitted a comment letter in response to the CFP Board’s proposal for revising its Code of Ethics and Standards of Conduct. The AICPA commended the Board for strengthening its standards, which is a positive step forward in protecting the public interest. Grounding all professional standards in protecting the best interest of the public with clarity and providing advice without conflicts of interest, were among the comments emphasized by the AICPA. CPA financial planners have certain stricter obligations relating to the management of conflicts of interest, documentation requirements and compensation disclosures as addressed in the AICPA Code of Professional Conduct and Statement on Standards in PFP Services.
UPDATE: Bill to Kill DOL Rule Passes House (July 2017)
On July 20, the House of Representatives approved legislation which includes a provision to kill the Labor Department fiduciary rule. In addition, House and Senate Republicans introduced separate bills to stop the regulation and establish a new investment advice standard.
UPDATE: DOL Requests Input on Fiduciary Rule Extension and Best Interest Contract Requirements (June 2017)
On June 27, the U.S. Department of Labor issued a request for comments on extending the applicability date of the fiduciary rule, currently set to take full effect on January 1, 2018. Additionally, there is a separate comment period on other issues raised in the RFI which includes streamlining or eliminating key provisions which are part of the new best interest contract requirements. Learn more in this summary article.
UPDATE: DOL Fiduciary Rule Takes Effect June (June 2017)
The U.S. Department of Labor Fiduciary Rule will take effect this Friday, June 9. The rule mandates that advisers delivering investment advice on retirement assets adhere to the Impartial Conduct Standards (including the “best interest” standard) during the transition period ending January 1, 2018, when the full impact of the rule is currently scheduled to take effect. During the transition period, firms and individuals are given time to prepare for certain new disclosure requirements.
UPDATE: SEC Seeks Input on Standards of Conduct for Investment Advisers and Broker-Dealers (June 2017)
On June 1, SEC Chairman Jay Clayton made a request in this public statement for input on matters that directly impact retail investors. The DOL and the SEC are considering coordinating and streamlining efforts as each body pursues ongoing analysis of the standards of conduct applicable to investment advisers and broker-dealers who provide investment advice to retail investors. Clayton opens the floor for comments on matters like retail investor confusion, conflicts of interest and commissions.
UPDATE: DOL Implements 60-Day Delay on Fiduciary Rule (April 2017)
On April 4, the U.S. DOL officially delayed the implementation of the fiduciary rule, according to the Federal Register. Proponents to the rule have flooded the Labor Department with approximately 180,000 comment letters. It is not clear whether the rule will ultimately be killed or will take effect on June 9th.
UPDATE: DOL Issues Conflicts of Interest Exemptions FAQ (October 2016)
The U.S. Department of Labor issued its first set of answers to frequently asked questions about the fiduciary rule. The FAQs, based on input received from financial services firms and other stakeholders, are an important part of the regulatory process as they allow the DOL to clarify important parts of the rule.
UPDATE: AICPA Submits International Tax Reform Comments (June 2016)
The AICPA offered comments on various international tax provisions to House Ways and Means Committee Chairman Kevin Brady in a June 23 letter. The letter’s specific recommendations primarily focus on the technical issues of the international provisions in the Tax Reform Act of 2014. AICPA Tax Executive Committee Chair Troy K. Lewis, stated, “From a policy perspective, we generally refrain from supporting or opposing most of the provisions because our membership’s client base is comprised of a variety of taxpayers, and the specific provisions could either benefit or negatively impact them. Instead, we aim to objectively identify potential technical issues, administrative-type concerns, provisions needing clarification, and areas we think warrant further consideration as Congress moves forward with international tax reform.”
UPDATE: SEC Proposes Rule Requiring Investment Advisors to Implement Succession Plans (June 2016)
On June 28, 2016 The Securities and Exchange Commission proposed a new rule that would require registered investment advisers to implement written business continuity and transition plans. The proposed rule is designed to ensure that investment advisers have plans in place to address operational and other risks related to a significant disruption in order to minimize client and investor harm. Read the press release here.
ADVOCACY: AICPA Comments Regarding Canadian Personal Financial Regulation Issues (June 2016)
In support of our colleagues at CPA Ontario, and in collaboration with the Global Accounting Alliance, the AICPA Personal Financial Planning Division commented last week on regulation efforts set forth by the Ontario government to enhance the regulation of those practicing as personal financial planners. The AICPA recognizes this activity as a global issue as the efforts have captured the attention leading accounting organizations around the world. The government has appointed an Expert Committee to construct an enhanced regulatory regime. In the comments provided to the expert committee, the AICPA emphasized the single most important element towards making a meaningful difference in the interest of the public is to ensure that all providers of personalized financial planning advice adhere to a statutory best interest duty. Additionally, the comments suggested that regulated professionals, including the CPAs, should be recognized in the existing regulatory framework and acknowledged as meeting the recommendations given the rigorous regulatory regimes already in place and finally, to involve professional bodies with extensive experience in setting and enforcing standards to assist in creating the minimum standards in Ontario.
UPDATE: U.S. Department of Labor Releases Final Version of Fiduciary Rule (April 2016)
On April 6, 2016, the U.S. Department of Labor has released the final version of the Fiduciary Rule, defining standards set for all financial professionals who manage or provide advice on retirement accounts for individual clients. This new requirement aims to reduce the billions of dollars U.S. investors lose annually to biased financial advice and is one step closer to a uniform standard across all regulatory bodies. Click here for a summary of the key changes as released. As reflected in the Statement on Standards in Personal Financial Planning and the AICPA Code of Professional Conduct, the AICPA is committed to the best interest of the public, which is the foundation of the fiduciary standard. For more materials, you may visit the Department’s website for a Fact Sheet, Frequently Asked Questions and a chart comparing the previously proposed and final rules.
UPDATE: SEC Releases 2016 Exam Priorities (January 2016)
The Securities and Exchange Commission announced its Office of Compliance Inspections and Examinations’ (OCIE) 2016 priorities. New areas of focus include liquidity controls, public pension advisers, product promotion, and two popular investment products – exchange-traded funds and variable annuities. The priorities also reflect a continuing focus on protecting investors in ongoing risk areas such as cybersecurity, microcap fraud, fee selection, and reverse churning. The 2016 examination priorities address issues across a variety of financial institutions, including investment advisers, investment companies, broker-dealers, transfer agents, clearing agencies, and national securities exchanges. Read the SEC press release.
UPDATE: Forefield Alert: New Crowdfunding Rules Take Effect This Year (January 2016)
On October 30, 2015, after three and a half years of proposals, comments, and discussion, the Securities and Exchange Commission (SEC) announced its final rules on equity crowdfunding for small businesses. The forms that funding portals use to register with the SEC become effective on January 29, 2016, while the final regulations take effect on May 16, 2016. Forefield has developed a new client alert that explains the final rules.
UPDATE: SEC Examines Retirement Advice with New Questionnaire (January 2016)
In June 2015, the Securities and Exchange Commission launched the ReTIRE initiative to focus on retirement-based savings and conduct examinations of certain registered investment advisers and broker-dealers that provide services or sell investment products to retail investors. Recently, the agency has distributed a 75-query document to advisers requesting information about their practices regarding 401(k) rollovers, compliance controls, fees and other issues.
ADVOCACY: AICPA Comments on Canada’s Expert Committee’s Request to Consider Financial Advisory and Financial Planning Policy Alternatives (September 2015)
The AICPA submitted comments to Canada’s Ministry of Finance and its Expert Committee, commending their efforts to strengthen the legal framework surrounding the regulation of activities of individuals who offer financial planning, advice and activities. The AICPA believes the most important step towards consumer protection is to elevate the standard of care as it relates to conflicts of interest and potential conflicts of interest as outlined in the comment letter. It is important for consumers to be able to differentiate among service providers due to the various levels of legal frameworks, standards, ethics, and minimum competencies in place for individuals who offer these services. Because there are many influential disciplines involved in the provision of financial advice with existing rigorous frameworks in place, it is important to ensure that any new regulations do not result in duplicative regulation.
UPDATE: PFP Executive Committee Chair Letter re: DOL Fiduciary Proposed Rulemaking (August 2015)
Read a letter to PFP/PFS members from the AICPA PFP Executive Committee chair, Lyle Benson, on the DOL’s proposed rule to amend the definition of “fiduciary” advice under the Employee Retirement Income Security Act.
UPDATE: SEC Announces ReTIRE Initiative (June 2015)
On June 22, the SEC announced the launch of a multi-year Retirement-Targeted Industry Review and Examination (ReTIRE) initiative. The SEC’s Office of Compliance Inspections and Examinations (OCIE), through the National Examination Program (NEP), will focus on retirement-based savings and conduct examinations of certain registered investment advisers and broker-dealers that provide services or sell investment products to retail investors. Examination focus areas include: reasonable basis for recommendations; conflicts of interest; supervision and compliance controls; and marketing and disclosure. Read the June 22nd risk alert from the SEC.
UPDATE: DOL Extends Deadline for Comments on Proposed Fiduciary Rule (May 2015)
The DOL has added 15 days to the initial comment period for its proposed fiduciary rule, extending the comment period from 75 days to 90. Labor Secretary Thomas Perez noted that the total comment period could stretch out to more than 140 days, because more comments will be allowed after a public hearing in August.
UPDATE: DOL Proposed Fiduciary Rule Released (April 2015)
On April 14th, the OMB publicly released the Department of Labor’s long-awaited proposed rule to amend the definition of “fiduciary” under the Employee Retirement Income Security Act (ERISA), strengthening standards for individuals providing investment advice to a retirement plan, its participants or beneficiaries. This proposed rule replaces a similar proposal by the DOL from 2010. There is a 75-day comment period, followed by a public hearing with the record reopened for comment after the hearing.
Major provisions of the rule include:
- The proposed rule clarifies and rationalizes the definition of fiduciary investment advice. Specifically, a fiduciary is any individual (including brokers, RIAs, insurance agents or other types of advisers) receiving compensation for providing investment advice for consideration in making retirement investment decisions that are individualized to, or specifically directed to, an employee benefit plan, plan fiduciary, participant or beneficiary.
- The proposed rule creates specific carve-outs for particular types of communications that are best understood as non-fiduciary in nature, such as order-taking. For example, it creates a “seller’s carve-out” which would not treat arm’s length transactions where there is generally no expectation of fiduciary investment advice as fiduciary advice, provided that the carve-out’s specific conditions are met. It creates carve-outs for general retirement education, sales pitches to plan fiduciaries with financial expertise, and other carve-outs, provided the conditions outlined in the rule are met.
- Generally, individuals providing fiduciary investment advice may not receive payments creating conflicts of interest without a prohibited transaction exemption. The DOL is proposing new and revised exemptions from the prohibited transaction rules of ERISA and the Code that are broad, principles-based, and adaptable to changing business practices.
- The “best interest contract exemption” would allow an adviser and firm to receive commissions and revenue sharing provided that they (among other requirements) expressly agree to provide advice that is in the “best interest” of the advice recipient. The firm must have adopted policies and procedures reasonably designed to mitigate any harmful impacts of conflicts of interest, and disclose basic information on their conflicts and the cost of their advice.
- The “principal transaction exemption” would allow advisers to recommend certain fixed-income securities and sell them to the investor from the adviser’s own inventory, as long as the adviser adheres to the exemption’s consumer-protective conditions.
- The DOL is also requesting comments on a “low-fee exemption” that would allow firms to accept payments that would otherwise be deemed conflicted when recommending the lowest-fee products in a given product class.
Read FAQs from the DOL on the proposed rule, which includes information on how this rule differs from the 2010 proposal.
ADVOCACY: AICPA Comments to the Institute for the Fiduciary Standard on Best Practices (March 2015)
The AICPA submitted a letter to the Institute for the Fiduciary Standard regarding the proposed Best Practices For Advisers and Brokers Seeking to Meet the True Fiduciary Standard. The AICPA provided general and detailed responses to certain of the specific criteria set forth in the proposal.
In general, the AICPA believes that clear and concise guidance regarding investment adviser behaviors are essential to the health of the financial planning and investment advisory industry and the welfare of the public interest. AICPA supports this effort of the IFS and the premise that specific and measurable behaviors that reflect generally accepted principles of fiduciary behavior are vital to the public interest.
In that regard, the AICPA's SSPFPS similarly provides specific guidance for CPAs who provide personal financial planning services, including investment advice, that builds on the AICPA Code of Professional Conduct (Code) and basic tenets of behaviors required by a fiduciary - always acting in the best interest of the public (i.e., client, when providing personal financial planning services). We are in general agreement that the Best Practices set forth by the IFS are consistent with AICPA’s standards of practice and behavior.
UPDATE: Mary Jo White Says SEC Should Move Forward with Fiduciary Rule (March 2015)
SEC chair, Mary Jo White, indicated at an industry conference that the SEC should “implement a uniform fiduciary duty for broker-dealers and investment advisers where the standard is to act in the best interest of the investor.”
The AICPA delivered letters to Chair White in 2013, emphasizing our position that the public’s interest must be placed at the forefront; that it is critical that all advisers providing personalized investment advice to retail investors be held to a minimum standard of care, with suggestions on what this minimum standard should entail; and that the enormous negative impact on capital markets, society and the economy when advice is driven by an adviser’s self-interest is not quantifiable. The AICPA will continue to monitor this issue and take action as necessary.
UPDATE: SEC Will Target Retirement Issues in 2015 (March 2015)
The SEC is preparing for a sweep that will assess how financial services professionals manage retirement issues, according to Jane Jarcho of the SEC’s Office of Compliance and Inspections. In addition, the SEC is planning for a second batch of sweep exams focusing on cybersecurity. Previous cybersecurity sweeps found that many advisers have security standards in place, but weaknesses may be caused by employees who don't adhere to established practices. View the SEC’s 2015 examination priorities.
UPDATE: DOL Fiduciary (February 2015)
Rep. Ann Wagner, R-Mo., introduced a bill that would force the DOL to delay action on a fiduciary rule for retirement account advisers until the SEC takes action on a similar proposal. In addition, the bill would lay out cost-benefit standards for the SEC to use in its rule-making process. This comes shortly after President Obama pushed the DOL to move forward with their proposed fiduciary rule. The DOL rule is currently with Office of Management and Budget for review, before it’s made public. The AICPA supports an elevated standard; we are monitoring developments and will keep you apprised on the latest.
UPDATE: DOL and SEC Fiduciary Rules (February 2015)
President Obama is pushing the Department of Labor to move forward with their proposed fiduciary rule, strengthening standards for brokers overseeing retirement accounts. The rule was proposed by the DOL in November 2010, and has faced industry opposition. The DOL is expected to submit the proposal for review by the OMB soon. Additionally, SEC chief Mary Jo White said last week that that she expects to voice her opinion on the idea of giving brokers a fiduciary mandate "in the short term." White indicated that it didn't matter when the DOL took action on a similar initiative, because the Labor Department rule and a possible SEC rule would be separate.
UPDATE: Budget Increase for SEC in Spending Bill (December 2014)
A $1.1 trillion spending bill that was passed by Congress last week was signed by President Obama yesterday. The bill includes a $150 million increase in the SEC’s budget, which raises the possibility that more resources could be devoted to the oversight of investment advisers.
Since early 2009, the AICPA has advocated its position that investment adviser oversight remain with the SEC and states in lieu of shifting to an independent SRO. Read a comment letter articulating our position that the principles-based regulatory approach of the Investment Advisers Act and its related rules should continue to govern investment advisers and further, that regulatory oversight remain exclusively with the SEC and/or states. Providing the SEC with resources to properly enforce their rules, even if it means assessing additional fees on investment advisers, is the best solution for investment advisers and the public. Read more about AICPA’s advocacy in this area.
UPDATE: SEC “Never-Before Examined” Initiative (February 2014)
The SEC is pressing ahead with an initiative to examine financial advisers who have been registered for three years or longer but never examined. A letter sent to unexamined advisers outlined the SEC’s two-pronged approach. “The risk-assessment approach is designed to obtain a better understanding of a registrant. This type of exam may include a high-level review of an adviser's overall business activities, with a particular focus on the compliance program and other essential documents needed to assess the representations made on disclosure documents. The focused review approach includes conducting comprehensive, risk-based examinations of one or more of the higher-risk areas of the business and operations of advisers selected for an examination.
UPDATE: SEC Chief says Fiduciary Rule is Primary, Immediate Focus (February 2014)
At a conference in Washington, SEC Chairman Mary Jo White said the SEC is intensifying its consideration of the question of the role and duties of investment advisers and broker-dealers, with the goal of enhancing investor protection. After her presentation, she told reporters that a decision on a uniform fiduciary rule was a “primary, immediate focus” for the SEC this year, in addition to considering whether there should be harmonization of investment adviser and broker-dealer regulation.
The AICPA delivered letters to Chairman White last summer, emphasizing our position that the public’s interest must be placed at the forefront; that it is critical that all advisers providing personalized investment advice to retail investors be held to a minimum standard of care, with suggestions on what this minimum standard should entail; and that the enormous negative impact on capital markets, society and the economy when advice is driven by an adviser’s self-interest is not quantifiable. The AICPA will continue to monitor this issue and take action as necessary
ADVOCACY: AICPA Submits Comments to SEC in Connection with Fiduciary Standard (July 2013)
As previously communicated, on January 21, 2011, the SEC submitted to Congress its study on the obligations and standards of conduct of financial professionals. The study recommended that the SEC adopt and implement a uniform fiduciary standard of conduct for broker-dealers and investment advisers -- no less stringent than currently applied to investment advisers under the Advisers Act -- when those financial professionals provide personalized investment advice about securities to retail investors. The AICPA has had a long-standing position of supporting this elevated standard of care in this situation.
Subsequently, on March 1, 2013, the SEC requested data and other information on such a uniform fiduciary standard of conduct, and also requested comments on proposed concepts. Various elements of this request raise concerns that the standard would ultimately be weakened. The AICPA and other like-minded organizations sent a letter on June 4th to SEC Chair, Mary Jo White, urging her to establish a standard that is at least as strong as the existing standard for investment advisers.
The AICPA delivered a second letter on July 5th to Chairman White, emphasizing our position that the public’s interest must be placed at the forefront; that it is critical that all advisers providing personalized investment advice to retail investors be held to a minimum standard of care, with suggestions on what this minimum standard should entail; and that the enormous negative impact on capital markets, society and the economy when advice is driven by an adviser’s self-interest is not quantifiable.
The AICPA will continue to monitor this issue and take action as necessary.
ADVOCACY: AICPA and Other Like-Minded Organizations Voice Opposition to Weakened Fiduciary Standard (June 2013)
As previously communicated, on January 21, 2011, the SEC submitted to Congress its study on the obligations and standards of conduct of financial professionals. The study recommended that the SEC adopt and implement a uniform fiduciary standard of conduct for broker-dealers and investment advisers -- no less stringent than currently applied to investment advisers under the Advisers Act -- when those financial professionals provide personalized investment advice about securities to retail investors. The AICPA has had a long-standing position of supporting this elevated standard of care in this situation.
Subsequently, on March 1, 2013, the SEC requested data and other information on such a uniform fiduciary standard of conduct, and also requested comments on proposed concepts. Various elements of this request raise concerns that the standard would ultimately be weakened. Therefore, AICPA and other like-minded organizations urged SEC Chair, Mary Jo White, in a letter delivered on June 4th, to establish a standard that is at least as strong as the existing standard for investment advisers.
The AICPA will continue to monitor this issue and take action as necessary.
UPDATE: Legislation Introduced to Impose SEC User Fees to Fund RIA Exams (July 2012)
On July 25, U.S. Representative Maxine Waters (D-CA) introduced the “Investment Adviser Examination Improvement Act of 2012,” which would provide the SEC with the authority to impose and collect user fees on investment advisers (“RIAs”) for the purpose of increasing the number and frequency of SEC examinations. This bill is co-sponsored by Reps. Barney Frank and Michael Capuano.
ADVOCACY: AICPA Advocacy on Investment Adviser Oversight (June 2012)
To reiterate our long-standing position in support of keeping investment adviser oversight with the SEC and/or states, in response to the June 6th hearing in connection with H.R. 4624, the Investment Adviser Oversight Act of 2012, AICPA sent further correspondence to House Financial Services Committee Chairman Spencer Bachus and Ranking Member Barney Frank. The AICPA strongly believes that the principles-based regulatory approach of the Investment Advisers Act and its related rules should continue to govern investment advisers and further, that regulatory oversight remain exclusively with the SEC and/or states. It is in the best interest of the investing public to keep oversight with the SEC. Moreover, the costs associated with paying fees to a SRO may threaten the success of smaller firms, harming small businesses across the country. Read the letter submitted to Bachus and Frank.
ADVOCACY: AICPA Urges Congress to Keep Investment Adviser Oversight with SEC (April 2012)
On April 26, the AICPA expressed its opposition to the Investment Adviser Oversight Act of 2012, which was introduced in the House of Representatives on April 25 by House Committee on Financial Services chairman Spencer Bachus (R-Ala.) and Representative Carolyn McCarthy (D-NY), and urged Congress to keep oversight of investment advisers with the Securities and Exchange Commission (SEC).
In response to the bill, AICPA CEO Barry Melancon, CPA, CGMA stated: “We believe that the SEC’s core mission to protect investors requires adequate regulation of the investment advisory profession. The SEC remains the proper regulatory body to protect the public’s best interest.” Melancon continued, “Providing the SEC with resources to properly enforce their rules is the best solution for investors and the public.”
Since early 2009, the AICPA has advocated its position that investment adviser oversight remain with the SEC and states in lieu of shifting to an independent SRO.
On November 24, 2010, AICPA submitted a comment letter articulating our position that the principles-based regulatory approach of the Investment Advisers Act and its related rules should continue to govern investment advisers and further, that regulatory oversight remain exclusively with the SEC and/or states. Providing the SEC with resources to properly enforce their rules, even if it means assessing additional fees on investment advisers, is the best solution for investment advisers and the public.
We reiterated our position in a comment letter dated November 3, 2011 in response to the discussion draft, Investment Adviser Oversight Act of 2011, stating that an SRO is inherently conflicted and is not the right answer for regulation of investment advisers. We believe that FINRA would bring a broker-dealer perspective, and bias, to investment adviser examinations and that its rules-based, check-the-box approach is not conducive to adequate regulation of the investment advisory profession nor is it in the public’s best interest as it diverts the focus from placing the investor’s interest first to simply complying with rules.
A study by The Boston Consulting Group in December 2011 found that funding an enhanced SEC examination program would likely cost half that of creating a SRO for investment advisers. The report further found that funding a SRO would likely cost twice as much for each investment advisory firm as paying user fees to the SEC and that, given the SEC would still have to oversee the SRO, any cost savings to the SEC through creation of a SRO would be minimal.
UPDATE: SEC Addresses Family Office Exclusion Questions and Posts FAQs on Form ADV and IARD (February 2012)
On January 19, the SEC posted a set of staff responses to questions about the “family office rule” (rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940), and expects to update this page from time to time to provide responses to additional questions. The responses represent the views of the staff of the Division of Investment Management and are not a rule, regulation, or statement of the SEC, and the Commission has neither approved nor disapproved the information. Responses cover questions about: ownership and control of a family office, key employees, family members, non-advisory services and the grandfathering provision.
Additionally, the staff of the Division of Investment Management also supplemented its “Frequently Asked Questions on Form ADV and IARD” with questions regarding mid-sized advisers (see additional FAQ page dedicated to mid-sized advisors), master-feeder arrangements, the identification of a private fund with its Form D file number, private fund identification numbers (PFIDs) and the calculation of regulatory assets under management.
UPDATE: Form ADV Amendment Due March 30, 2012 (January 2012)
The SEC is requiring that mid-sized advisers with assets under management (AUM) between $25 and $100 million switch to state registration by June 28, 2012 (with the exception of advisers with their principal office and place of business in New York or Wyoming).
All investment advisers registered with the SEC must file a Form ADV amendment by March 30, 2012 declaring their regulatory assets under management. The SEC adopted revisions to the instructions of Part 1A of Form ADV to implement a uniform method for advisers to calculate AUM in addition to assessing whether an adviser is eligible to register with the Commission.
Read the final rule implementing these changes. Read FAQs from the SEC on Form ADV and IARD. Visit the North American Society of State Securities Administrators (NASAA) for contacts at the state level and the Switch Resource Center.
UPDATE: New Study Supports AICPA Investment Adviser Position (December 2011)
Since early 2009, AICPA has advocated its position that investment adviser oversight remain with the SEC and states in lieu of shifting to an independent SRO or FINRA. On December 15, Boston Consulting Group, commissioned by a group of like-minded organizations with positioning similar to AICPA’s, released a study that found that establishing a SRO to oversee investment advisers would cost at least twice as much as funding an enhanced SEC examination program via user fees. The cost of shifting oversight to FINRA did not fall far behind the cost of establishing an independent SRO. While AICPA chose not to be directly involved in the study in consideration of the best interest of the overall membership and our ability to positively impact the outcome of this debate, we are pleased with the result and will point to the study as support for our position as further advocacy takes place with the House Committee on Financial Services. Following are materials to help you get up to speed with the latest:
- Boston Consulting Group Study on Investment Adviser Oversight
- Press Release Announcing the Study
- Survey of Investment Advisers in Terms of Their Preference for Regulator
The AICPA continues to actively monitor this issue and will take action as necessary to positively impact legislation. We will keep you apprised of developments as they unfold. Please email us at firstname.lastname@example.org with any questions or concerns.
UPDATE: Senator Bachus Postpones Action on Investment Adviser Oversight (December 2011)
A spokesman for House Financial Services Committee announced that Chairman Spencer Bachus (R-Ala.) will not introduce formal legislation shifting oversight of investment advisers from the SEC to a self-regulatory organization (SRO), likely to be the Financial Industry Regulatory Authority (FINRA), until Spring 2012.
The AICPA opposes the creation of a self-regulatory organization (SRO) for investment advisers and believes that FINRA would bring a broker-dealer perspective to investment adviser examinations and that its rules-based approach is not conducive to adequate regulation of the investment advisory profession.
On November 3, the AICPA submitted a letter to Chairman Spencer Bachus and Ranking Member Barney Frank regarding the regulation of investment advisers and the standard of care for broker-dealers when giving investment advice to their clients.
ADVOCACY: AICPA Submits Comment Letter Regarding Regulation of RIAs and Standard of Care for Broker-Dealers (November 2011)
On November 3rd, the AICPA submitted a letter to the House Financial Services Committee Chairman Spencer Bachus and Ranking Member Barney Frank regarding the regulation of investment advisers and the standard of care for broker-dealers when giving investment advice to their clients.
The letter reinforced our position that the principles-based regulatory approach of the Investment Advisers Act and its related rules should continue to govern investment advisers and further, that regulatory oversight remain exclusively with the SEC and states. Providing the SEC with resources to properly enforce their rules, even if it means assessing additional fees on investment advisers, is the best solution for investment advisers and the public.
Further, we oppose the creation of a self-regulatory organization (SRO) for investment advisers and believe that FINRA would bring a broker-dealer perspective to investment adviser examinations and that its rules-based approach is not conducive to adequate regulation of the investment advisory profession.
Finally, we support a uniform fiduciary standard of conduct for broker-dealers and investment advisers when those financial professionals provide personalized investment advice about securities to retail investors. We support this elevated standard of care so long as the fiduciary standard is no less stringent than the standard currently applied to investment advisers under the Investment Advisers Act.
UPDATE: DOL to Re-Propose Fiduciary Definition (September 2011)
The DOL announced on September 19th that it will re-propose its rule on the definition of a fiduciary, after facing strong industry opposition. The new proposed rule is expected to be issued in early 2012, after soliciting additional industry input and researching further. According to a DOL press release, “the agency anticipates revising provisions of the rule including, but not restricted to, clarifying that fiduciary advice is limited to individualized advice directed to specific parties, responding to concerns about the application of the regulation to routine appraisals and clarifying the limits of the rule's application to arm's length commercial transactions, such as swap transactions. Also anticipated are exemptions addressing concerns about the impact of the new regulation on the current fee practices of brokers and advisers….” Read the full press release.
UPDATE: Hearing on Regulation and Oversight of Broker-Dealers and Investment Advisers (September 2011)
The House Financial Service Subcommittee on Capital Markets and Government Sponsored Enterprises held a hearing on Tuesday on the regulation and oversight of broker-dealers and investment advisers, focusing on studies mandated by the Dodd-Frank Act on the effectiveness of standards of care applicable to broker-dealers and investment advisers, and on the need for enhanced examination and enforcement resources for investment advisers.
The PFP Division continues to actively analyze and monitor these issues in collaboration with the AICPA’s Congressional Affairs Team. We will keep you apprised of developments as they unfold.
UPDATE: New York Financial Planning Bill (August 2011)
The New York State Assembly has introduced a bill (no. A05378) that would require financial planners advising the elderly to hold the CFP credential. The bill defines financial planner as “an individual, business or entity that sells, promotes or holds themselves out to sell or promote or provide investment planning, income tax planning, education planning, retirement planning, estate planning, risk management, and any other area with respect to the management of financial resources; including but not limited to 401(k)s, individual retirement accounts (IRAs), Roth IRAs, SEP-IRAs and IRA rollovers.” The AICPA is aware of this issue and will provide support as necessary in educating legislators that this definition of financial planner encompasses work that CPAs do in their normal course of business and for which they are already adequately and effectively regulated by the State and adhere to a stringent standard of care such that there is no need to be a CFP to provide this advice. We will keep you apprised of developments as they arise.
UPDATE: DOL Extends Applicability Dates for Retirement Plan Fee Disclosure Rules (July 2011)
On July 13th, the DOL issued a final regulation extending and aligning the applicability dates for its retirement plan fee disclosure rules.
First, the DOL further extended the effective date of its interim final regulation under Section 408(b)(2) of ERISA. This rule requires covered service providers of retirement plans to disclose comprehensive information about their fees and potential conflicts of interest to ERISA-covered plan fiduciaries. This regulation was to become effective with respect to plan contracts or arrangements for services in existence on or after January 1, 2012 (the original deadline of July 16, 2011 had previously been extended), but the final regulation issued July 13th pushed the effective date to April 1, 2012.
Additionally, the DOL extended the applicability date of fiduciary requirements for disclosure in participant-directed individual accounts. The final rule was issued on October 20, 2010, with an original applicability date of November 1, 2011. Additionally, the regulation contained a 60-day transition rule that permitted initial compliance no later than 60 days after the beginning of the first plan year on or after November 1st. The final rule issued July 13th retains a modified version of the 60-day transition rule that works in conjunction with the new effective date of the 408(b)(2) regulation. The deadline is now the later of (i) 60 days after the first day of the plan year beginning after November 1, 2011, or (ii) 60 days after the effective date of the 408(b)(2) rule.
Read the DOL’s press release and the final regulation.
UPDATE: DOL Notice of Proposed Extension of Applicability Date (June 2011)
On June 1st, the DOL proposed extending the applicability date of fiduciary requirements for disclosure in participant-directed individual accounts. Comments on the proposal are due on or before June 15, 2011. The final rule was issued on October 20, 2010, with an applicability date of November 1, 2011 (see update below dated October 2010). Note that the AICPA commented on the proposed rule in August 2008. The final regulation addresses disclosure of certain plan and investment-related information, including fee and expense information, to participants and beneficiaries in participant-directed individual account plans (e.g., 401(k) plans). This regulation is intended to ensure that all participants and beneficiaries in participant-directed individual account plans have the information they need to make informed decisions about the management of their individual accounts and the investment of their retirement savings. Note that the disclosure rules do not extend to IRA-based plans under IRC section 408, including simplified employee pensions (SEPs) and simple retirement accounts (SIMPLEs) already subject to disclosure regimes under the code, which is consistent with the AICPA’s recommendations.
UPDATE: Results from SEC’s Open Meeting (June 2011)
On June 22, 2011, the SEC held an open meeting to consider adopting rules and rule amendments under the Investment Advisers Act of 1940 (“Advisers Act) to implement provisions of Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Key outcomes relevant to CPA financial planners are summarized below. Also, stay tuned for an AICPA web seminar to be held in the fall, Investment Adviser SEC to State Transition and Other Compliance Issues, with compliance expert, Ellen Bruno, which will dive deeper into these changes.
UPDATE: Mid-Sized Advisors Must Switch to State Regulation by June 28, 2012 (June 2011)
As reported in the June 23rd edition of PFP News, the SEC is requiring that mid-sized advisers with assets under management between $25 and $100 million switch to state registration.
Note however, that advisers with their principal office and place of business in Minnesota, New York and Wyoming with between $25 and $100 million in AUM must remain registered with the SEC. New York did not provide confirmation that they conduct exams of advisory firms when surveyed by the SEC; Minnesota reported it doesn’t conduct exams; and Wyoming doesn’t have an investment adviser law.
All investment advisers registered with the SEC must file a Form ADV amendment by March 30, 2012 declaring their regulatory assets under management. The SEC is adopting revisions to the instructions of Part 1A of Form ADV to implement a uniform method for advisers to calculate AUM in addition to assessing whether an adviser is eligible to register with the Commission.
Note that the SEC is also providing a buffer to prevent advisers from having to frequently switch between SEC and state registration. Specifically, advisers currently unregistered or registered with a state must commence SEC registration once assets reach $110 million. Firms need not withdraw from SEC registration until assets fall below $90 million per the most recent annual updating amendment.
Also on the agenda was whether to adopt a rule defining “family offices” that will be excluded from the definition of an investment adviser under the Advisers Act. The AICPA’s PFP and Tax Executive Committees previously commented on the proposed rule. Many of the AICPA’s suggestions were adopted in the final rule.
The final rule states that a family office is exempt from registration if it provides investment advice only to “family clients,” is wholly owned by family clients and is exclusively controlled by family members and/or family entities, and does not hold itself out to the public as an investment adviser. Note the expansion of the definition to include “family clients” in lieu of the more narrow “family members” in the proposed rule.
If family offices do not meet the terms of the exclusion, they will have to register with the SEC or applicable state securities authorities by March 30, 2012. A family office that does not meet the conditions of the rule may petition for an exemptive order from the SEC. Existing exemptive orders will not be rescinded. Finally, the rule allows for a longer transition period (through December 31, 2013) for the termination of relationships with charitable entities or non-profit organizations that are not exclusively funded by the family.
UPDATE: RIA SEC to State Transition Extension Likely (July 2011)
On July 21st, an estimated 4,000 investment advisers registered with the SEC with less than $100 million in assets under management must switch to state registration. This switch was mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, and requires that advisers file an amendment to their Form ADV no later than August 20, 2011, reporting the market value of their AUM within 30 days of filing.
Note that the deadline for this transition will likely be extended to the first quarter of 2012, according to an April 8th letter from Robert Plaze, associate director of the SEC's Division of Investment Management, to David Massey, President of the North American Securities Administrators Association (NASAA). It is likely that the SEC will adopt implementing rules by July 21st, but will allow a grace period for advisers to come into compliance with requirements; however, this extension is subject to approval by the five SEC commissioners.
NASAA has developed tools to provide information to those investment advisers preparing to switch to state regulation. NASSA's online IA Switch Resource Center contains background information, answers to frequently asked questions, and a directory of state contacts. Users of the site also are able to send their questions to NASAA.
UPDATE: FINRA Hires Oxley to Lobby for Oversight of RIAs (March 2011)
In the wake of the Dodd-Frank-mandated SEC report on RIA examinations, FINRA continues to lobby for authority to regulate investment advisers. FINRA recently hired Michael Oxley, former congressman and co-writer of the Sarbanes-Oxley Act of 2002, to lobby for FINRA to promote self-regulation of investment advisers. The PFP Division strongly believes that the principles-based regulatory approach of the Investment Advisers Act and its related rules should continue to govern investment advisers and further, that regulatory oversight remain exclusively with the SEC and/or states. The AICPA submitted a comment letter on November 24, 2010 reinforcing our position.
UPDATE: SEC Report Released on Broker-Duty Standard of Care (January 2011)
On January 21st, the SEC submitted to Congress its study on the obligations and standards of conduct of financial professionals, as required by Section 913 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The study noted confusion among retail investors over the roles and standards of care applicable to investment advisers and broker-dealers providing personalized investment advice about securities. Furthermore, the study noted that investors should receive the same protection regardless of whether they choose to work with an adviser or a broker.
As outlined in an accompanying press release from the SEC, the study makes the following recommendations:
- That the SEC adopt and implement a uniform fiduciary standard of conduct for broker-dealers and investment advisers -- no less stringent than currently applied to investment advisers under the Advisers Act -- when those financial professionals provide personalized investment advice about securities to retail investors. Note that PFP Executive Committee supports this elevated standard of care in this situation.
- That when broker-dealers and investment advisers are performing the same or substantially similar functions, the SEC consider whether to harmonize the regulatory protections applicable to such functions. Such harmonization should take into account the best elements of each regime and provide meaningful investor protection, while continuing to provide access to the various fee structures, account options, and types of advice that investment advisers and broker-dealers provide.
We will continue to keep you apprised of developments as the SEC adopts and implements a uniform fiduciary standard of care and considers harmonization of the regulatory protections.
UPDATE: SEC Report Released on Study of RIA Examinations (January 2011)
On January 19th, the SEC released its staff report, Study on Enhancing Investment Adviser Examinations, as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act. The study reports that the current SEC registered investment adviser examination program faces significant capacity and funding challenges. The report recommends that Congress consider the following three options to strengthen the SEC’s current investment adviser examination program.
- Impose “user fees” on SEC-registered investment advisers that could be retained by the Commission to fund the investment adviser examination program;
- Authorize one or more self regulatory organizations (“SROs”) to examine, subject to SEC supervision, all SEC-registered investment advisers; or
- Authorize FINRA to examine dual registrants for compliance with the Investment Advisers Act of 1940.
The AICPA submitted a comment letter to the SEC on November 24th, reinforcing our position that the principles-based regulatory approach of the Investment Advisers Act and its related rules should continue to govern investment advisers, and further, that regulatory oversight should remain exclusively with the SEC and/or states. We will continue to keep you apprised of developments as Congress considers the three options proposed in the SEC’s report.
UPDATE: GAO Report Concludes Additional Oversight of Financial Planners Duplicative (January 2011)
On January, 18th, the U.S. Government Accountability Office (GAO) submitted the following report to Congress, “Consumer Finance: Regulatory Structure for Financial Planners Is Generally Comprehensive, but Consumer Protection Issues Remain." This report summarizes the findings of the GAO’s study of the current state and federal oversight structure and regulation of financial planners, as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act. It also lays forth the GAO’s conclusions and recommendations.
Given the current regulatory regime, the GAO concluded that additional financial planning regulation or oversight would be duplicative. The GAO’s conclusion is generally consistent with the AICPA's position, which was articulated to the GAO by PFP Division staff in August 2010. On page 37 of the report, the GAO emphasized that “existing statutes and regulations appear to cover the great majority of financial planning services, and individual financial planners nearly always fall under one or more regulatory regimes, depending on their activities. While no single law governs the broad array of activities in which financial planners may engage, given available information, it does not appear that an additional layer of regulation specific to financial planners is warranted at this time.”
The GAO recommended several “actions that can be taken that may help address consumer protection issues associated with the oversight of financial planners,” which can be found on page 38 of the report.
UPDATE: DOL Proposes Fiduciary Definition Expansion (January 2011)
In November 2010, the Department of Labor proposed a broader definition of an ERISA fiduciary, which would include the provision of advice to IRA and HSA holders. The DOL says that their proposed rule would “protect beneficiaries of pension plans and individual retirement accounts by more broadly defining the circumstances under which a person is considered to be a ‘fiduciary’ by reason of giving investment advice to an employee benefit plan or a plan's participants.”
The proposal includes a new, significantly broader two-part test for the ERISA definition of “fiduciary,” and removes the requirement that advice be on a regular basis. The first prong expands the types of advice to include the provision of appraisals and fairness opinions concerning the value of a security of property, making purchase/sale recommendations, or advising on the management of securities. The second prong would encompass any person acknowledging it is acting as a fiduciary, exercising discretionary authority, providing individualized investment advice, or being a registered investment adviser.
The rule would extend to anyone who provides investment advice to a “plan, plan fiduciary or plan participant or beneficiary,” and receives a fee for giving that advice, regardless of the frequency.
Read the proposed rule. Written comments on the proposed regulations should be submitted to the DOL no later than February 3, 2011. Furthermore, the DOL will hold a public hearing in Washington D.C. on March 1, 2011 and, if necessary, March 2, 2011, on the proposed rule.
UPDATE: Dodd-Frank Wall Street Reform and Consumer Protection Act: A Primer for CPAs (December 2010)
The AICPA’s newest white paper provides a comprehensive analysis of the many provisions of critical importance to CPAs, including those related to CPA financial planners. It highlights the key points of the Act and describes what they mean for CPAs and their clients or employers.
ADVOCACY: AICPA Comments on Proposed SRO Oversight for Investment Advisers (November 2010)
The AICPA has been monitoring the SEC’s regulatory initiatives under the Dodd-Frank Act, and have paid specific attention to the impact of possible FINRA or other self-regulatory organization (SRO) oversight for investment advisers. The Dodd-Frank Act required a study of the examination and enforcement resources for investment advisers, and the necessity of a SRO to “augment the Commission’s efforts in overseeing investment advisers.”
In early November, the CEO of FINRA, Richard Ketchum, posted a comment letter to the SEC’s website laying out what a SRO for investment advisers might look like, and claimed that FINRA, not the SEC, was better able to handle the job. Given that the possibility of SRO oversight was gaining traction, the AICPA submitted a comment letter to the SEC on November 24th, reinforcing our position.
Specifically, we emphasized that the AICPA strongly believes that the principles-based regulatory approach of the Investment Advisers Act and its related rules should continue to govern investment advisers and further, that regulatory oversight remain exclusively with the SEC and/or states. Providing the SEC with resources to properly enforce their rules, even if it means assessing additional fees on investment advisers, is the best solution for investment advisers and the public.
UPDATE: SEC Proposes Rules to Improve Oversight of Investment Advisers (November 2010)
The SEC proposed rules on November 19th to improve the oversight of investment advisers and to help advisers transition from SEC to state registration. The proposal implements exemptions from registration for advisers to venture capital firms and for certain advisers to private funds. The SEC also proposed changes to Form ADV to implement the transition of mid-sized investment advisers (between $25 and $100 million in assets under management) from SEC to State regulation as provided in the Dodd-Frank Act.
ADVOCACY: AICPA Comments on Family Office Proposed Rule (November 2010)
The AICPA PFP and Tax Executive Committees recently submitted comments to the SEC on the Proposed Rule 202(a)(11)(G), which would exclude “family offices” from the definition of an investment adviser under the Investment Advisers Act of 1940 and thus would not subject them to regulation under the Advisers Act. Our comments focused on various definitions and questions posed in the Proposed Rule and identified specific practical recommendations that we believe best serve the interests of the investing public, while taking into account the objective of the SEC to appropriately limit the scope of the family office exemption to traditional single family offices.
Specifically, we addressed the definition of family clients, ownership and control of family offices, the provision that prohibits a family office from holding itself out to the public as an investment adviser, the need for additional guidance with respect to the grandfathering provisions, and previously issued exemptive orders. Lastly, we commented on two other matters not specifically addressed in the Proposed Rule that we suggest warrant consideration by the SEC, namely investment advisory services provided without compensation and relief provisions to rectify inadvertent and unintentional violations.
Read a copy of the SEC's October 12th Release.
Read more from Journal of Accountancy.
UPDATE: Proposed Exemption for "Family Offices" Under Investment Advisers Act of 1940 (October 2010)
The SEC is proposing a rule to define “family offices” that would be excluded from the definition of an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”) and thus would not be subject to regulation under the Advisers Act.
UPDATE: DOL Issues Final Regulation Regarding Fiduciary Requirement for Disclosure in Participant-Directed Individual Account (October 2010)
On October 20, 2010, a final rule was issued regarding fiduciary requirements for disclosure in participant-directed individual account plans, with an effective date of December 2010. Note that the AICPA commented on the proposed rule in August 2008. The final regulation addresses disclosure of certain plan and investment-related information, including fee and expense information, to participants and beneficiaries in participant-directed individual account plans (e.g., 401(k) plans). This regulation is intended to ensure that all participants and beneficiaries in participant-directed individual account plans have the information they need to make informed decisions about the management of their individual accounts and the investment of their retirement savings. Note that the disclosure rules do not extend to IRA-based plans under IRC section 408, including simplified employee pensions (SEPs) and simple retirement accounts (SIMPLEs) already subject to disclosure regimes under the code, which is consistent with the AICPA’s recommendations.
ADVOCACY: AICPA Meets with GAO to Discuss Study on Regulation of Financial Planning (August 2010)
As previously communicated in PFP News, one of the many studies commissioned within the Dodd-Frank Wall Street Reform and Consumer Protection Act is to evaluate the current state and federal oversight structure and regulations for financial planners. On Monday, August 16, the AICPA Congressional Affairs and PFP Division staff met with employees of the Government Accountability Office (GAO) who are commissioned to report their findings and recommendations as it relates to regulation of financial planning. AICPA believes:
Additional oversight of financial planning would be duplicative since the Bureau of Consumer Financial Protection (CFPB) created by the Dodd-Frank Act has oversight over financial planning that is not currently regulated, thereby eliminating any gaps in regulation. (Note that in recognition of the existing comprehensive regulation of CPAs, all licensed CPAs have been excluded from regulation by the CFPB).
Because CPAs are subject to regulation by their state boards of accountancy in any advice that they provide and further, by the SEC or states when providing investment advice, additional regulation of the profession of financial planning is duplicative for CPA financial planners. Our goal, first and foremost, is to protect the public’s best interest, while also recognizing the regulatory framework that currently exists for CPAs.
All financial planners should be held to a minimum standard of care which includes acting with integrity, objectivity, due care, competence, providing full disclosure of any conflicts of interest, attaining client consent if a conflict exists, maintaining the confidentiality of all client information, disclosing to the client of any commission or referral fees, and serving the public interest when providing any of these financial services.
The GAO has and will be meeting with many other stakeholders and will issue their report with recommendations by late January. The AICPA will continue to monitor the progress on this study and provide additional input to the GAO as it is requested. If you have any questions or concerns, please contact us at email@example.com.
UPDATE: The Dodd-Frank Wall Street Reform and Consumer Protection Act: Financial Regulatory Reform Legislation (August 2010)
On August 12th, Wes Nissen, attorney with Winston & Strawn, shared some need to know information for CPA financial planners regarding recent regulatory reform. Request archived materials and listen to a web seminar recording of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The recording covers:
- High level overview of the bill and what led to regulatory reform
- Consumer Financial Protection Bureau
- Regulation of financial planning as a profession
- AUM threshold change
- Fiduciary standard for broker/dealers when providing investment advice
- Possibility of self-regulatory organization for investment advisers
- Family office impact
- Brief overview of other issues including accredited investor, private advisor definition, hedge funds/venture capital, etc.
UPDATE: President Obama Signs Financial Regulatory Reform Bill (July 2010)
President Barack Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act into law on Wednesday, July 21st.
UPDATE: Congress Passes Financial Regulatory Reform Bill (July 2010)
On July 15, in a 60-39 vote, the Senate approved legislation to overhaul financial services regulation. President Obama is expected to sign the bill this week. The legislation, entitled the Dodd-Frank Wall Street Reform and Consumer Protection Act, has now been approved by both Chambers.
UPDATE: Financial Services Regulatory Reform Bill Reported Out of Conference (June 2010)
On June 25th, the House-Senate Conference responsible for reconciling the House and Senate’s bills on financial services regulatory reform concluded. The legislation produced as a result of the Conference, entitled the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Act”), now heads to a vote by the House and Senate. If approved by both Chambers, it will be sent to the President for his signature.
UPDATE: Senate Passes Wall Street Reform Bill (May 2010)
On May 20th, the Senate passed, by a vote of 59-39, the “Restoring American Financial Stability Act of 2010” (“2010 Act”), or H.R. 4173 (as amended). The next step in the process of financial services regulatory reform will be a House-Senate conference committee that will meet after the Memorial Day recess to reconcile the Act’s provisions with those of the House’s regulatory reform bill. (The 2009 passed the full House on December 11, 2009 by a 223-202 vote). Congress hopes to have a final vote on the bill by July 4.
UPDATE: Financial Services Reform (March 2010)
On March 15, 2010, following several months of bi-partisan negotiations, Senate Banking Committee Chair Chris Dodd (D-CT) unveiled his version of financial services regulatory reform, the Restoring American Financial Stability Act of 2010 (“Act”). The House passed its financial services regulatory reform bill, the Wall Street Reform and Consumer Protection Act of 2009, on December 11, 2009, the details of which are summarized in prior communications. The AICPA’s Congressional Affairs and the Personal Financial Planning Teams are in the process of reviewing this bill in detail and its coverage of issues of direct relevance to our members. While not exhaustive, these issues include:
- SEC Study and Rulemaking Regarding Obligations of Brokers, Dealers & Investment Advisers.
- Increase of the AUM threshold for investment advisers to register with the SEC.
- New exception for “family office” under the Adviser’s Act.
- Establishment of a Consumer Financial Protection Bureau.
UPDATE: Issuance of DOL Proposed Regulation on Investment Advice for Participant-Directed ERISA Plans and IRAs (February 2010)
On February 26, 2010, the US Department of Labor released a proposed regulation providing guidance on the statutory prohibited transaction exemptions to ERISA and the Internal Revenue Code (Code), which were created by the Pension Protection Act of 2006. The proposed rules replace a prior, final regulation which was withdrawn last November in response to concerns related to the rules’ treatment of a fiduciary adviser’s conflicts. The proposed rule differs from the earlier version in two important aspects. In general, the proposal implements ERISA 408(b)(14) , 408(g) and Code section 4975, which enable a “fiduciary adviser” (e.g., registered investment adviser, bank, insurance company, broker-dealer, and its affiliates or representatives) to provide investment advice to plan participants so as to not violate prohibited transaction rules. (In general, anytime one is providing investment advice to a plan participant of an ERISA account or IRA, they are acting as an ERISA or Code “fiduciary” and thus should be mindful of these rules).
UPDATE: House of Representatives Approves Sweeping Financial Re-Regulation Bill (December 2009)
The U.S. House of Representatives on December 11 adopted a sweeping financial re-regulation bill, “The Wall Street Reform and Consumer Protection Act of 2009,” by a vote of 223 to 202. The AICPA served as an advocate on several provisions of interest to CPA financial planners.
ADVOCACY: AICPA Sends Letter of Support for Amendment to H.R. 4173 (December 2009)
On December 10, 2009, the AICPA sent a letter of support for an amendment to H.R. 4173, the “The Wall Street Reform and Consumer Protection Act of 2009,” which would strip language giving the SEC explicit authority to allow FINRA to extend its inspection, rulemaking and enforcement jurisdiction to federally-registered investment advisers “associated with” a broker dealer.
On December 11, 2010, the amendment was approved during the House’s consideration of H.R. 4173, which passed the full House. Thus, it appears that regulatory oversight of investment advisers will remain with the SEC and/or state securities authorities. AICPA believes that the SEC and states are best positioned to oversee investment advisers under the Advisers Act, and does not believe that FINRA’s broker-dealer perspective is conductive to adequate regulation of the investment advisory profession.
ADVOCACY: AICPA Comments on the DOL's Proposed Regulation on 401(k) Plan Investment Advice (October 2008)
The AICPA has commented on the DOL's proposed regulation concerning the prohibited transaction exemption for the provision of investment advice under an "eligible investment advice arrangement," as defined by the PPA of 2006.
Update: The final DOL regulation has been withdrawn.
ADVOCACY: AICPA Comments on the DOL's Proposed Regulation on Fiduciary Requirement for Disclosure in Participant-Directed Individual Account Plans (August 2008)
The AICPA has commented on the Prop. Reg. section 2550.404a-5, which addresses fiduciary requirements for disclosure on participant-directed individual account plans.