The
Financial Planning Association is asking the Securities and Exchange
Commission to clarify when a broker-dealer is considered exempt from
the Investment Advisers Act of 1940.
The FPA, which has
been waging a court battle against the exemption, formally asked the
SEC for guidance on what the difference is between financial planning
and fee-based brokerage services.
The
exemption-approved by the SEC two years ago after a six-year battle
that pitted financial planners against brokers-allows broker-dealers to
avoid being regulated as investment advisors so long as their
investment advice is "solely incidental" to their brokerage services.
The FPA has been
leading the opposition against the ruling, stating it confuses
consumers and allows brokers to skirt meaningful regulation. The
organization says it expects a ruling soon on its lawsuit against the
SEC, which seeks to eliminate the exemption.
In asking for the
clarification, FPA officials said they are trying to address confusion
that exists now that the exemption is in place. The organization also cited an investigative report in the April issue of Smart Money magazine that "documented numerous violations of the rule."
"Regardless of
whether FPA prevails in its legal challenge to this rule, there is a
cloud of confusion surrounding its reach and implementation," said FPA
President Nicholas A. Nicolette. "The SEC will ultimately need to
clarify for investors and brokerage firims what financial planning
services can and cannot be provided by brokerage firms, no matter what
the services are called."
In its letter to the SEC, the FPA asks for clarification on the following three points:
Whether a
broker-dealer would fall under the Advisers Act when an agent is
providing elements of a financial plan, such as retirement plans,
estate plans and college education plans. The FPA argues some brokerage
firms are avoiding the financial planning restrictions by offering
customers segments of a plan that, when taken together, amount to
comprehensive financial planning rather than brokerage services.
Confirmation
that a broker-dealer is subject to the Advisers Act when its registered
representatives recommend specific stocks, bonds or mutual funds to
implement the asset allocation recommended in its financial plan.
Clarification
about when the fee-based account disclosures required by the rule must
be made to the client. The FPA maintains some brokerage firms are not
giving prospective customers an opportunity to review the disclosure
prior to signing an account agreement