Wealth Management
(Washington)
The SEC’s Investor Advocate has pointed out that Reg BI is under threat. Some of the developments in the market have meant that Reg BI may be rendered useless. In particular, the increasing use of “nudges” in trading inevitably rubs against the fundamental meaning of Reg BI. If trading platforms for retail investors are constantly using “nudges”, or encouragements to trade, how much does that constitute a recommendation? That is the esoteric question that the SEC must address. According to the SEC’s Investor Advocate, Rick Fleming, “In my view, it appears that the use of certain DEPs, by gamifying securities trading for retail customers, could significantly influence these retail customers’ investment decisions in ways that were not fully contemplated when the commission adopted Reg BI with its important distinction between solicited and unsolicited trading.
FINSUM: Reg BI is only a couple years old and it is already antiquated!
(Washington)
Advisors have been paying very close attention to Reg BI. This is especially true because the Biden administration looks poised to make a number of changes to the rule, including defining “fiduciary” and bolstering enforcement. However, that appears to not be all as the SEC may be set to make an addition to Reg BI: a new section covering the gamification of trading. The SEC’s Investor Advocate, Rick Fleming, says that “N]ow it seems that most if not all of the on-line discount brokers are influencing investor behavior with digital engagement practices, which further blurs the line between providing investment advice and traditional brokerage service … At some point, if the Commission fails to brighten the distinction between advisors and brokers, it will make little sense to regulate the two with such distinct regulatory models.”.
FINSUM: Critical changes to definitions, much heavier enforcement looming, and now a pandora’s box on gamification. And this might be just the beginning.
(Washington)
Joe Biden has picked Lisa Gomez to head the Employee Benefits Security Administration at the Department of Labor. And speaking to senators this week, she made a comment which clearly signals the direction of the Department. She said “there’s nothing that is more central to ERISA than defining who is a fiduciary”. Speaking about her pending work for the DOL, she said she plans “to be briefed on the efforts of looking at the definition of a fiduciary in different contexts, and taking another look at the conflict of interest rule and how it would apply in different situations”. She continued “Determining exactly who is a fiduciary in different contexts … has been the source of disagreement and it’s been a long road to get there”.
FINSUM: The writing is on the wall at the DOL and SEC. The Biden administration is starting to flex its muscle and will beef up regulation.
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(Washington)
Every scary dream about regulations that broker-dealers have had since Biden got elected might be coming true, at least based on new comments out of the SEC. According to Gurbir Grewal, “We must design penalties that actually deter and reduce violations, and are not seen as an acceptable cost of doing business”. Grewal is the former Attorney General of New Jersey who is now the Director of the Division of Enforcement of the SEC. He added, “[T]o achieve the intended deterrent effect, it may be appropriate to impose more significant penalties for comparable behavior over time … Doing so will make it harder for market participants to simply ‘price in’ the potential costs of a violation”.
FINSUM: All signs point to things getting much tougher over the next couple years.
(Washington)
The House Democrats’ update of the Biden Administration’s tax proposal hit airwaves yesterday, and it is just now starting to sink in. One of the elements that was immediately apparent to one senior tax professional was that the updated capital gains tax proposal is effectively a “marriage tax”, according to Nicole DeRosa, senior tax manager at Wiss. Note that increased rates (5% plus the 3.8% surtax) start at $400,000 of income for individual filers, but $450,000 for joint filers. Many times the joint filing limit would be double the individual limit, but in this case it is barely above. This effectively means married couples are being taxed for their matrimony.
FINSUM: This is illogical and unfair to married couples. Hopefully this does not make it into law in its current form.
(Washington)
Biden’s big ‘death tax’ has been spooking advisors and their wealthy clients for months now, and there are very major concerns over if and when it will be implemented. Well we have good news and bad news today. The good news is that both the House Democrats and the Ways and Means commission have put forth proposals with significantly lower tax rates than Biden’s initial budget. The House Democrats, for instance, would keep all-in capital gains taxes at a max of around 28.8% (counting the surtax). The bad news is that a recent adoption by the Ways and Means Commission puts the cutoff date for any company sales that would be affected by Biden’s much bigger capital gains taxes as Sept 13th (for sales with a binding contract prior to that date).
FINSUM: Overall, the direction of the proposals is getting more favorable for the HNW community, but there is still a LONG way to go.