This post continues our examination of the Department of Labor’s suite of final fiduciary and conflict of interest regulations. Our previous posts discussed the newly expanded definition of “investment advice fiduciary”; the “best interest contract” (or BIC) exemption; and the new class exemption for principal transactions. Collectively, these rules vastly expand the definition of an “investment advice fiduciary” while at the same time providing new prohibited transaction class exemptions intended to preserve many of the commission-based compensation arrangements that would otherwise be imperiled under the new fiduciary standard. In this and the next three posts, we will examine how the Department has amended certain existing Prohibited Transaction Exemptions to come into alignment with its new fiduciary and conflict of interest standards.
This post explains the changes to Prohibited Transaction Exemption (PTE) 84-24 relating to insurance agents and brokers.
PTE 84-24 (Before the 2016 Amendments)
The Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code) prohibit investment advice fiduciaries to employee benefit plans and IRAs from self-dealing, including receiving compensation that varies based on their investment advice and receiving compensation from third parties in connection with their advice. “Investment advice fiduciaries” for this purpose includes financial services firms, and their employees, contractors and representatives, who provide investment advice for a fee (direct or indirect) to ERISA-covered retirement plans and IRAs. Thus, investment advice fiduciaries are generally barred from receiving commissions, 12b-1 fees, trails, and revenue sharing in connection with the sale of most investments absent an exemption. ERISA and the Code also prohibit all fiduciaries and other parties related to plans and IRAs from engaging in purchases and sales of products with the plans and IRAs.
A number of existing prohibited transaction class exemptions currently permit investment advice fiduciaries to engage in several types of prohibited transactions in connection with the provision of fiduciary investment advice to plans, plan participants, and IRA investors. In the context of the sale of insurance products and annuities, the most important of these exemptions is PTE 84-24 (“Class Exemption for Certain Transactions Involving Insurance Agents and Brokers, Pension Consultants, Insurance Companies, Investment Companies and Investment Company Principal Underwriters”).
PTE 84-24 generally provides an exemption for a plan’s payment of sales commissions to insurance agents or brokers, pension consultants, or investment company principal underwriters in connection with the plan’s purchase of insurance or annuity contracts and investment company securities. It applies to transactions where the insurance agent or broker, pension consultant or investment company principal underwriter or its affiliate is a fiduciary of the plan (an “investment advice fiduciary”) so long as the entity seeking to avail itself of the exemption does not have any discretionary authority or control over the plan assets involved in the transaction other than as a nondiscretionary trustee. The exemption also covers situations in which an affiliate of the investment advice fiduciary provides services to the plan, the assets of which are involved in the transaction. For example, an insurance company that sells annuities to a retirement plan can also provide recordkeeping services through an affiliate.
Before amendment, PTE 84-24 imposed the following conditions:
- The transaction must be effected in the ordinary course of business;
- The transaction must be on terms at least as favorable to the plan as an arm’s length transaction with an unrelated party;
- The combined total of all fees, commissions and other consideration received in connection with the transaction must not be in excess of “reasonable compensation;”
- The agent, broker, pension consultant or investment company principal underwriter or its affiliates cannot be a trustee (other than a non-discretionary trustee) or a fiduciary who is expressly authorized in writing to manage, acquire or dispose of the assets of the plan involved in the transaction on a discretionary basis; and
- The agent, broker, pension consultant or investment company principal underwriter must provide an independent fiduciary of the plan with certain disclosures regarding the transaction and the independent fiduciary must acknowledge in writing the receipt of this information and approve the transaction.
PTE 84-24 permits the receipt of commissions and fees, to the extent that they are reasonable under the circumstances, in the case of the sale of insurance, annuity contracts, and mutual funds shares. Though not so limited, PTE 84-24 was often applied in connection with the marketing and sale of proprietary funds and products. Before the recent amendments (explained below) PTE 84-24 had long been relied on broadly to allow for the receipt of commissions in connection with the sale of annuity contracts that would otherwise run afoul of the prohibited transaction rules under ERISA and the Code.
Amendments to Prohibited Transaction Exemption 84-24
The newly issued Department of Labor final fiduciary and conflict of interest regulations amend PTE 84-24 to:
- Impose on those seeking relief the same impartial conduct standards found in the Best Interest Contract Exemption; and
- Narrow the scope of the exemption so that it cannot be used for advice by investment advice fiduciaries to Individual Retirement Account (IRA) owners in connection with transactions involving:
- Variable annuity contracts or other annuity contracts that would constitute “Securities” under federal securities laws; or
- Mutual fund shares.
As amended, PTE 84-24 allows investment advice fiduciaries to receive certain types of compensation in connection with transactions involving insurance contracts, specified annuity contracts, and investment company securities. The types of advice and compensation covered include:
- The receipt, directly or indirectly, by an investment advice fiduciary of an “an insurance commission” from an insurance company in connection with the purchase with plan or IRA assets (including through a rollover or distribution) of an insurance contract or a fixed rate annuity contract. As the name suggests, a “fixed rate annuity contract” is a contract issued by an insurance company under which benefits of which do not vary, in part or in whole, based on the investment experience. Neither a variable annuity nor an “indexed annuity or similar annuity” qualifies as a fixed rate annuity contract.
NOTE: An insurance commission is a sales commission paid by the insurance company to the insurance agent or broker or pension consultant for affecting the purchase of the fixed annuity contract or insurance contract. While this includes commission payments, and renewal fees and trailers, it does not include 12b-1 fees, revenue sharing, administrative fees, or marketing payments. In the post-final rule environment, investment advice seeking to be paid 12b-1 fees, revenue sharing, administrative fees, or marketing payments must rely on the BIC exemption.
- The receipt of a mutual fund commission by a principal underwriter in connection with the purchase, with plan assets, including through a rollover or distribution, of securities issued by an investment company.
NOTE: As amended, PTE 84-24 no longer permits the receipt of compensation in connection with the purchase of mutual fund shares by IRAs. Also noteworthy is that relief under this provision is available in the context of principal transactions. For a discussion of principal vs. agency transactions, please see our previous post on the subject.
- The effecting by investment advice fiduciary of a transaction for the purchase, with assets of a Plan or IRA, including through a rollover or distribution, of a fixed rate annuity contract or insurance contract, or the effecting by a principal underwriter of a transaction for the purchase, with assets of a Plan, including through a rollover or distribution, of securities issued by a mutual fund company.
- The purchase, with assets of a Plan or IRA, including through a rollover or distribution, of a fixed rate annuity contract or insurance contract from an insurance company, and the receipt of compensation or other consideration by the insurance company.
NOTE: Covered transactions also include buying an insurance contract or a fixed rate annuity contract from an insurance company, or buying mutual funds from an investment company, using plan assets where the insurance/investment company is a fiduciary or service provider by only by reason of its sponsorship of a master or prototype plan. These arrangements are commonplace in the small plan market.
As amended, PTE 84-24 is not available if the investment advice fiduciary is:
- A trustee of the plan or IRA (other than a nondiscretionary trustee who does not render investment advice with respect to plan assets);
- A plan administrator;
- A fiduciary authorized in writing to manage, acquire, or dispose of assets of the plan or IRA on a discretionary basis; or
- An employer with employees covered by the plan.
Impartial Conduct Standards
To rely on the newly amended PTE 84-24, financial institutions generally must adhere to “Impartial Conduct Standards” requiring them to:
- Give advice that is in the retirement investor’s best interest (i.e., prudent advice that is based on the investment objectives, risk tolerance, financial circumstances, and needs of the retirement investor, without regard to financial or other interests of the adviser, financial institution, or their affiliates, related entities or other parties); and
- Make no misleading statements about investment transactions, compensation, and conflicts of interest.
In addition, the transaction must be effected by the investment advice fiduciary in the ordinary course of its business; it must be on terms at least as favorable to the plan or IRA as an arm’s length transaction with an unrelated party; and the combined total of all fees and compensation must be reasonable.
In the case of transactions involving the purchase with plan or IRA assets of a fixed rate, annuity contract, the investment advice fiduciary must disclose to an independent fiduciary for the plan or the IRA owner, information regarding conflicts of interest (e.g., an affiliate relationship with insurance company whose contract is being recommended), compensation, and fees.
In the case of transactions involving the purchase with plan or IRA assets of a fixed rate annuity contract or insurance contract, the insurance agent or broker or pension consultant provides to an independent fiduciary with respect to the Plan, or in the case of an IRA, to the IRA owner, prior to the execution of the transaction the following information in writing:
- Whether the agent, broker, or consultant is an affiliate of the insurance company whose contract is being recommended, or if the ability of the agent, broker, or consultant to recommend fixed rate annuity contracts or insurance contracts is limited by any agreement with the insurance company, the nature of the affiliation, limitation, or relationship;
- The amount of the commission; and
- A statement of any charges, fees, discounts, penalties or adjustments which may be imposed under the recommended contract in connection with the purchase, holding, exchange, termination, or sale of the contract.
Following the receipt of this information, but before the execution of the transaction, an independent plan fiduciary or IRA owner must acknowledge in writing receipt of the information and must approve the transaction on behalf of the plan or IRA. The independent fiduciary may not receive, directly or indirectly, any compensation or other consideration for his or her personal account from any party dealing with the plan in connection with the transaction.
Similar disclosure rules apply to transactions involving mutual funds.
Persons and entities seeking to rely on PTE 84-24 as amended must maintain or cause to be maintained for a period of six years, in a manner that is reasonably accessible for audit and examination, the records necessary to enable to establish compliance. The rule includes safeguards to protect the privacy of individuals and trade secrets.
Effective Dates, Applicable Dates and Grandfathering
The amendments to PTE 84-24 are effective as of June 7, 2016. Recognizing that it will take some time for financial institutions to come into compliance, however, the Department has determined that the amendments will apply to “transactions occurring on or after April 10, 2017.” The Department refers to this date as the rule’s “applicability date.” Thus, the narrowing of the exemption to apply only to purchases of fixed rate annuity contracts and to IRA purchases mutual funds does not take effect until the applicability date. Unlike the BIC exemption, however, the Department did not provide a grandfather provision in this instance. The preamble to the rule explains, however, that relief is available for pre-existing insurance and annuity contract under Section 7 of the BIC exemption. Additional contributions to existing investments will require compliance with the conditions of PTE 84-24 as amended following the Applicability Date.
The narrowing of PTE 84-24 is not without some controversy, particularly on the subject of indexed annuities, which were not mentioned in the 2015 proposed rule. Indexed annuities that are sold to ERISA-covered plans will be ineligible for the relief afforded by PTE 84-24. (Of course, indexed annuities sold to public school system 403(b) plans are unaffected, since these plans are generally governmental plans that are not subject to ERISA). Sales of indexed and variable annuities to ERISA-covered plans and IRAs will instead need to seek the protection of the BIC exemption, the requirements of which are marginally to significantly more onerous. (The Department of Labor has prepared and made available a chart comparing the requirement of the amended PTE 84-24 and the BIC exemption.)