AICPA Joins FPA In Opposing Exemption For Brokers
The American Institute of Certified Public
Accountants (AICPA) has come out in opposition to the SEC's decision to
exempt the fee-based accounts of certain broker-dealers from the 1940
Investment Advisers Act, saying the re-proposed rule "could have
unintended, negative consequences for investors."
In doing so, the AICPA moved away from its historic
position, which contended that accountants who gave "solely incidental
advice" should not be forced to register as RIAs. Like attorneys,
accountants were granted that exemption under the Advisers Act, while
brokerages were granted a different, more restrictive exemption because
they sell securities.
The AICPA now joins a growing list of groups in
opposing the exemption that Wall Street's wirehouses have lobbied for
ferociously. Other opponents include the American Association Of
Retired Persons, the Consumer Federation Of America, the CFP Board Of
Standards, the Investment Counsel Association Of America and the
Financial Planning Association, which has sued the SEC over the
proposed rule. Some at the FPA say privately the reproposed rule is
worse.
In public comments submitted to the SEC, Joel H.
Framson, chair of the AICPA's Personal Financial Planning Executive
Committee, says the rule, as proposed, will confuse investors.
Framson, for example, cites the SEC's decision to
exempt brokers whose advisory services are "solely incidental" to their
brokerage services. What is and is not incidental, he says, is becoming
hard to define as clients place a greater value on investment advice.
"As fee-based accounts emerged over the past decade,
the direct relationship between compensation and brokerage transactions
was lost," he writes. "When a fee is charged rather than a commission,
it is no longer clear when investment advice is no longer solely
incidental to the brokerage service. Rather, by charging a fee, the
investor is likely to view the investment advice as the primary
service."
The AICPA says the following activities should no longer be considered incidental to brokerage services:
Holding out to the public as an
investment advisor, financial planner, financial consultant or other
similar terms.
Providing financial planning services.
Sponsoring wrap fee programs.
"We believe all fee-based accounts should be managed
as advisory accounts," Framson writes. "This approach truly creates a
bright-line test and eliminates the need to establish subjective
guidelines on what constitutes incidental advice."
The SEC announced in December, after being sued by
the FPA, that it intends to continue to allow broker-dealers to provide
fee-based services pending the adoption of permanent rules, which are
expected on April 15.
Heads Roll At CFP Board As Up To 25% Of Staff Gets Axed
Since becoming CEO of the CFP Board of Standards on
November 1, Sarah Ball Teslik has wasted little time in reorganizing
and restructuring the Denver-based professional regulatory organization
(PRO). Late last year, Teslik terminated a large group of the PRO's
paid staff, with some estimating that cuts went as deep as 25% or 30%
of total personnel.
Glenn Pape, chair of the CFP Board of Governors,
declined to comment as did the CFP Board's public relations staff. All
deferred to Teslik, whose office said she was traveling. Other sources
say the cuts included Gary Diffendaffer, who had served as acting CEO
following the resignation of Lou Garday, Teslik's predecessor. The cuts
reportedly were deepest in the information technology department, much
of which was outsourced, and the public relations department, which
many thought was bloated.
Plantation, Fla.-based advisor Ben Tobias, who
served as chair of the Board of Professional Review in 2003 and spent
six years involved in various volunteer roles at the PRO, says he
called old colleagues in the professional group in Denver and was
pleased to learn that it was untouched. "I thought it was important
that the Board of Professional review remain intact and it did," Tobias
says.
But the same did not hold for the rest of the
nonprofit organization, in Tobias' view. "There was absolutely more
potential to be more efficient," he explains. "A few people on staff
that I talked to don't seem upset."
Apparently, it didn't take Teslik more than a week
or two to figure out what Tobias observed over several years. The big
question remaining is what she plans to do with the additional
resources. Down the road in Denver, the Financial Planning Association
is saying the advisory profession needs a self-regulatory organization,
a role that the CFP Board has long sought for itself.
American Express Spinning Off Advisors Unit
American Express Co.'s plans to spin off its
American Express Financial Advisors unit has been met with approval by
analysts.
Analysts at Forrester Research, for example, view
the split as a way for American Express Financial Advisors to "invest
aggressively in the big opportunity it faces: financial
planning-especially retirement planning-for the mass affluent."
Forrester and other analysts also view an
independent American Express Financial Advisors as one that will be
more competitive.
"The deal structure will leave AEFA with a strong
credit rating and good access to capital," Forrester Research analysts
say in a recent report. "An independent AEFA won't have to compete with
other divisions of American Express for corporate investment dollars."
The deal is expected to be tax-free to shareholders and to close in the third quarter.
AEFA business generated $7 billion in revenue and
net income of $700 million last year, and lagged other American Express
units in terms of profitability.
Currently, according to American Express, AEFA has:
A nationwide network of more
than 12,000 advisors, serving more than 2.5 million clients;
More than $410 billion in assets owned, managed and administered;
More than $145 billion of life insurance in force;
An international presence with
the recent acquisition of U.K.- based Threadneedle Asset Management.
An experienced management team
that will continue to be led by James Cracchiolo as chairman and chief
executive.
The two companies will be independent, have separate
public ownership, boards of directors and management, but they will
enter into exclusive marketing affiliations that will allow AEFA to
continue to use the American Express name for a transition period
following completion of the spin-off, according to American Express.
Board Of Standards Disciplines 23
The Certified Financial Planner Board of Standards
announced disciplinary actions involving 23 advisors, including nine
who had their certification revoked and three suspensions.
Those who had their certifications permanently
revoked were Mark D. Romano of Lakewood, Calif.; John M. Kittle of
Wichita, Ka.; Thomas S. Greeves of Rockville, Md.; Anthony J. Bille of
Hopkinton, Mass.; James Currier of Bloomfield Hills, Mich.; Marshall E.
Melton of Greensboro, N.C.; Howard S. Coff of Holland, Pa.; Travis D.
Wakeley of Hurst, Texas; and Kevin D. Kunz of Bountiful, Utah.
Certifications were suspended in the cases of David
J. Scranton of Westbrook, Conn.; Catherine M. Nolen of Nashville,
Tenn., and Marianne Springer Miller of San Antonio.
The revocations were based on the following cases:
Romano allegedly made
inappropriate investment recommendations to his client and failed to
inform his broker-dealer of outside business and investment
recommendations.
Kittle allegedly recommended unsuitable mutual funds to public customers.
Among the accusations against
Greeves were that he engaged in dishonest and unethical practices, and
in a fraudulent course of business which operated as a fraud on his
investment advisory clients.
Billie was accused of stealing
assets from a client who was possibly suffering from memory loss and
Alzheimer's Disease, while acting as the client's trustee, lawyer and
estate planner.
Currier and his firm allegedly
failed to maintain mandatory records and failed to report in timely
fashion 25 client complaints to the NASD.
Melton allegedly misused funds invested in his companies.
Coff's certification was
revoked after it was learned that he pleaded guilty to felony charges
of mail fraud and conspiracy to commit money laundering.
Wakeley allegedly recommended
investments in a company for which he was chief financial officer,
possibly as part of a Ponzi scheme.
Among the allegations against
Kunz were that he offered and sold unregistered securities.
The remaining 11 planners cited received letters of
admonition. They included Gwendolyn Biggs of Sacramento and Aubrey
Morrow of San Diego. Among other charges, Biggs was accused of cashing
a client out of annuities he inherited from his wife without explaining
the tax implications and then selling him more annuities and convincing
this client to loan her $300,000 to buy a Hawaiian condominium.
Morrow was accused of accepting commissions on accounts that his
retainer agreement claimed would be managed on a fee-only basis.
Morrow's retainer agreement also stated that all disputes must first be
submitted to a process established by the CFP Board of Standards,
although no such process exists.
Gergen: Chances Of Social Security Privatization Slim
President George Bush's plan to privatize Social Security has less than a 50% chance of getting enacted, U.S. News & World Report Editor-At-Large David Gergen told attendees at TD Waterhouse's Partnership Coference recently.
Acknowledging that Bush was as bold and ambitious as
any president in modern times, Gergen predicted that Bush has a chance
"to become a great president." But the advisor to many presidents
questioned whether Bush could obtain the 60 Senate votes necessary to
make Social Security personal accounts a reality.
Among Democrats, only Sen. Ben Nelson of Nebraska
has indicated a willingness to work with the president on overhauling
Social Security, while 43 Democratic senators have said they will not
vote for Bush's plan. Additionally, Gergen-who has advised presidents
including Ronald Reagan and Bill Clinton-said that some Republicans,
such as Olympia Snowe of Maine, have voiced deep doubts about Bush's
program.
Gergen said the complexity of the program reminded
him of the ill-fated Clinton proposal in 1993 and 1994 to overhaul the
nation's health insurance system. He said when a program "requires
1,900 new regulations" it's frequently dead on arrival.
Ironically, Gergen thinks that if President Bush's
Social Security plan fails it will make it easier to make the cuts in
income and estate taxes enacted in his first term permanent.