More On Legal & Compliancefrom The Advisor's Professional Library
- Updating Form ADV and Form U4 When it comes to disclosure on Form ADV, RIAs should assume information would be material to investors. When in doubt, RIAs should disclose information rather than arguing later with securities regulators that it was not material.
- Using Solicitors to Attract Clients Rule 206(4)-3 under the Investment Advisors Act establishes requirements governing cash payments to solicitors. The rule permits payment of cash referral fees to individuals and companies recommending clients to an RIA, but requires four conditions are first satisfied.
Congressional leaders averted a government shutdown by striking a deal late Thursday on a nearly $1 trillion spending bill to keep the government running until next fall. The spending plan was approved by a 296-121 vote by the House of Representatives on Friday, and the full Senate was expected to vote on the bill later Friday.
However, negotiations are still taking place on extending the payroll tax cuts and unemployment insurance, which both expire at the end of the year. Published reports said that Senate Majority Leader Harry Reid, D-Nev., and Senate Minority Leader Mitch McConnell, R-Ky., were confident that a long-term deal could be reached soon, but if not, that Democrats were preparing a temporary two-month payroll tax cut extension.
The spending bill contains $21.5 billion for agencies and programs within the financial services category. This total is $222 million below last year’s level and $4.2 billion below the Obama administration’s request.
The spending bill upholds the overall regular (base) discretionary level of $1.043 trillion as agreed to in the Budget Control Act. When combined with the previous “minibus” Appropriations bill enacted in November, total discretionary funding for FY 2012 will equal $1.043 trillion. That would be $7 billion less than last year’s level of $1.050 trillion and $98 billion less than the President’s request.
Chief among the allocations is $1.3 billion for the Securities and Exchange Commission, which is $136 million over last year’s level and $86 million below the administration’s request. The legislation also rescinds $25 million from the new Dodd-Frank mandated “reserve fund”–a fund for the SEC for programs that Congress has not approved.
However, industry officials note that the $1.3 billion appropriation for the SEC still falls short of the $1.5 billion authorized under the Dodd-Frank Act for 2012, and that the increased funds will likely not be enough to help the agency boost its examination of advisors and therefore stave off the possibility of a self-regulatory organization for advisors.
“The appropriation for next fiscal year continues to be a band-aid approach to regulating the financial services industry,” says Duane Thompson (left), senior policy analyst for fi360. “Like the banking regulators, Congress should provide for self-funding by the SEC to respond to future growth in registered investment advisors and rebuilding its technological infrastructure.”
The $1.5 billion under Dodd-Frank, Thompson says, was to be allocated so that the SEC could “fully carry out its responsibilities under the law.” The $1.3 billion “would not make the SRO issue ‘go away.’”
Marilyn Mohrman-Gillis, managing director of public policy for the CFP Board, says that the SEC concluded in its study under Section 914 of Dodd-Frank that the agency needs a “stable, scalable source of funding” that could “grow with the growth of advisors.”
While the CFP Board is “hopeful that some of the $136 million increase in annual appropriations will be allocated to enhancing the agency’s investment advisor exam program, the SEC has many other funding pressures and priorities,” she says. Authorizing the SEC to collect user fees to fund an enhanced examination program “will provide the type of stable, scalable funding that the SEC needs to protect investors and is the best solution to thwart an SRO for advisors.”
The CFP Board was one of the advisor associations (and TD Ameritrade) that sponsored a study by the Boston Consulting Group, released Thursday, which found that bulking up the SEC’s exam program for advisors would cost less than having FINRA be the SRO for advisors, or establishing a new SRO.
The study also found that even dual registrants (60%), which are advisors regulated by the SEC and FINRA, expressed a preference for SEC oversight over FINRA as an SRO.