The fiduciary issue has been in the spotlight for advisors who provide retirement investment advice to clients for years—advisors recently grappled with the DOL fiduciary rule and its application, but following its demise were faced with the need to determine how the DOL’s previously applicable “prudent man” standard would mesh with the SEC’s new Regulation Best Interest (“Reg BI”).
Reg BI shocked many advisors by clearly providing that the new best interest standard applies to advisors who provide recommendations with respect to rollovers between retirement accounts, such as from an employer-sponsored plan into an IRA. Unfortunately, while the spirit of the two rules is similar, the new SEC standard does not precisely match the DOL fiduciary standard—meaning that advisors who provide rollover advice must exercise caution to ensure compliance with both regimes.
Evaluating Rollover Transactions Under Regulation Best Interest
Advisors who make recommendations regarding the rollover of retirement assets between plans will now be required to comply with the SEC’s Reg BI, which means establishing that the rollover is in the client’s best interest before advising the rollover. Establishing that the rollover transaction was in the client’s best interests can be accomplished in a number of ways, including by showing that the advisory services provided by the advisor with respect to the rollover IRA add value as a tool for meeting the client’s specific goals.
In cases involving rollover IRAs, the advisor may be able to establish that the rollover is in the client’s best interests even if the fees associated with the IRA are higher than those in an employer-sponsored plan, as Reg BI clearly states that fee levels are not the only relevant consideration. In other situations, the investment options or investment mix in the rollover IRA may better suit the client’s goals—but the availability of a wider variety of investment options in a rollover IRA cannot generally be the sole basis for determining that the rollover is in the client’s best interest.
Specifically, advisors who make rollover recommendations must consider several non-exhaustive factors listed in the rule itself, including: (1) fees and expenses, (2) available services in both plans, (3) available investment options, (4) availability of penalty-free withdrawals from the accounts, (5) how required minimum distribution (RMD) rules can impact the client’s goals, (6) whether the plan provides any level of creditor protection, (7) whether the plan permits holding of employer stock, and (8) any additional special features of the initial account.