Recommendations of Contributions as Fiduciary Advice
This is my 56th article about interesting observations concerning the Department of Labor’s fiduciary rule and exemptions. These articles also cover the DOL’s FAQs interpreting the regulation and exemptions and related developments in the securities laws.
The Department of Labor’s Request for Information on the fiduciary rules and exemptions focuses on a number of issues that became apparent as financial institutions and advisers work to comply with the new requirements. One of these, which is addressed in the RFI, but which has not been generally discussed, is that a recommendation of a contribution, or of increased contributions, to plans and IRAs is a fiduciary act. As a result, if the recommended contribution causes higher compensation to be paid to the adviser (or the adviser’s financial institution), the recommendation would result in a prohibited transaction.
The problems are obvious. Even though there is a potential conflict of interest where an adviser could make a little more money because of the increased contributions, the benefits to participants of increasing their retirement savings in plans and IRAs are meaningful. In that regard, it seems that public policy would favor increased contributions to IRAs and plans, even though there may be some minor benefit to the person making the recommendation.
With that in mind, the Department of Labor’s RFI asked:
Contributions to Plans or IRAs Should recommendations to make or increase contributions to a plan or IRA be expressly excluded from the definition of investment advice? Should there be an amendment to the Rule or streamlined exemption devoted to communications regarding contributions? If so, what conditions should apply to such an amendment or exemption?
The first question is whether a recommendation to make those contributions should be viewed as a fiduciary act. My view is that it should not. The benefits of increased contributions are so obvious, and the potential conflict is so small, that the easiest, and most direct, solution would be for the DOL to conclude that a recommendation to make or increase contributions is not fiduciary advice.
However, if the DOL doesn’t do that, it should follow through with a favorable response to the second question. In its essence, the DOL’s second question is whether there should be a streamlined exemption for contribution recommendations. A truly streamlined exemption might work. However, usually exemptions have conditions. If those requirements are more than di minimus, the rules would likely create a trap for the unwary. In saying that, I mean that many advisers might not be aware of those additional requirements when recommending that a retirement investor save more in his or her IRA or plan.
Hopefully, the DOL will conclude that recommendations to a participant or IRA owner to increase their retirement contributions is not a fiduciary act. If they conclude otherwise, a recommendation to make or increase contributions would result in a prohibited transaction . . . and an exemption will be necessary. Unless it is an exemption without conditions (which is rare, but possible), there will undoubtedly be inadvertent violations.