The fiduciary rule has been dead for about six months now—much to the delight of most advisors. However, in what we feel was an inevitable development, the rule is starting to make a comeback. With the new SEC best interest rule getting a lot of negative feedback from all sides, it seemed very likely that states would take matters into their own hands and development states-level fiduciary rules. That is exactly what is happening. New Jersey is now working on a fiduciary rule of its own and it seems likely many other states will follow suit. If that transpires, advisors could face a patchwork of national rules that would make compliance a nightmare.
FINSUM: This was inevitable. States feel like the SEC’s rule is not as rigorous in its protections as the DOL rule was, and thus they feel they need to take matters into their own hands.
One of the very interesting aspects—which is thoroughly underreported—is that despite the rise of ETFs, mutual funds have held a major portion of market share in the advisor allocation business. One of the trends which has emerged is that the growth of ETFs has not really cost mutual funds as much as one would expect. Rather, advisors have just started to use them in different ways. ETFs are seen as better for broad passive exposure, but when it comes to active management, mutual funds are seen as the superior choice. This helps explain why smart beta and other forms of active ETFs have been relatively unsuccessful.
FINSUM: It is not mutual funds that have suffered from the shift to ETFs, rather it has been variable annuities and individual stocks. This is a quite a positive development for the asset management industry, in our opinion.
Brokers pay attention—a major loophole in the SEC’s best interest rule has just become apparent. One of the industry’s big complaints about the BI rule has been that it seeks to govern the use of the “advisor” title. Well, until now it seems that everyone had missed a key loophole in the rule. When the SEC drafted it, it allowed for dually-registered advisors/B-Ds to call themselves advisors even when they are carrying on brokerage business. 61% of registered reps work at dually-registered firms, meaning this aspect of the rule is mostly a moot point for the majority of advisors. According to Michael Kitces, famed advisor and wealth management commentator, “The rule literally doesn’t apply to most advisers”.
FINSUM: This is one of those bombshell realizations that seems to happen when a new rule is 1,000+ pages long—you miss things.
At the end of August, the IRS closed the door on the numerous high-tax states that were trying to classify their residents’ taxes as charitable gifts so as to make them deductible. That moved slammed the door of options shut for New York and New Jersey residents. However, the IRS didn’t close the door to other workarounds, and Connecticut apparently has a favorable model that specifically applies to pass-through entities. The workaround allows full deduction to the previous tax level for users through an income credit system on taxes paid.
FINSUM: One wonders if the IRS will just move on to shutting these programs down or whether this is a model that other states can build on.
Advisors, don’t hold your breath. Despite widespread criticism from basically every side of the equation, it appears unlikely the SEC is going to do much to correct the major flaws in its current Best Interest Rule. Barbara Roper of the CFA, says that she is “not at all confident” the SEC will make any meaningful changes to the rule “to better protect investors”, pointing out that the SEC had every chance to improve on the DOL rule, but didn’t. “It’s hard to believe that they are going to have a sudden conversion and fix the problems now”, she says.
FINSUM: Brokers, consumer protection groups, and clients all hate this rule (and don’t understand it), and it doesn’t make sense to anybody. Hopefully Roper is wrong and they will change the rule, but we worry they may not.
The SEC’s best interest rule has been giving brokers headaches almost since the demise of the DOL rule. Many groups have commented on the rule’s failing, including its governance on the use of titles and its deeply confusing attempt at delineating between brokers and advisors. However, one of those gripes now seems to have played out in practice, as early results from the SEC’s testing of its Customer Relationship Summary form (CRS) has essentially failed. According to the chief of the firm hired to do the study for the SEC, “Overall, participants had difficulty throughout the proposed CRS with sorting out the similarities and differences between the broker/dealer services and investment advisor services, and integrating this information across sections”.
FINSUM: This supports exactly what everyone in the industry has been saying—the rule is totally confusing and does nothing to help consumers. The SEC is going to have to do a major rewrite.