Authored by Kristen Hughes and Matthew O’RourkeRegistered investment advisers (RIAs) that maintain custody of customer assets, and who are registered with the Securities and Exchange Commission (SEC), are subject to various regulations intended to protect their clients. One such rule under the Investment Advisers Act of 1940 – the “custody rule” (i.e., SEC Rule 206(4)) – requires RIAs to obtain external assurance for customer accounts through either a surprise custody examination or by conducting a financial statement audit. Show
What is custody according to the SEC?Investment advisers are deemed to have custody of a client’s assets if the investment adviser directly or indirectly holds client funds / securities or has authority to obtain possession of them in connection with their advisory services. This includes the following:
There are three significant exceptions to the annual examination requirement. In each of these cases, an annual surprise examination is either not required or is otherwise deemed to be satisfied:
The custody ruleWhen an adviser is deemed to have custody of a client’s funds or securities, the custody rule subjects the adviser to the following requirements:
A surprise examination requires procedures such as, but not limited to, the examination of certain books and records that relate to the adviser’s custody and confirmation with both the qualified custodians and clients. The examination must be completed and the report submitted electronically to the SEC within 120 days after the surprise examination date, as chosen by the independent accountant. Financial statement audit vs. surprise examinationIn certain cases, a custody examination may be a more efficient service than an audit, primarily when a fund does not have a legally-imposed investor mandate for audited financial statements. If the fund is registered with a foreign authority that requires audited financial statements (e.g., the Cayman Islands Monetary Authority), a surprise custody examination may be duplicative of the work already performed. Custody examinations are more limited in scope than audits since custody examinations focus on equity activities (e.g., subscriptions and redemptions) and investment existence, but not the underlying valuation. An audit requires more substantial planning / assessment of risks and testing of the entirety of the fund’s financial statements, including valuation of investments. The financial statement audit also requires management to develop sufficient and appropriate procedures and controls over valuation and financial reporting to comply with U.S. GAAP. These factors typically cause the custody examination to be less expensive, intrusive and time consuming as compared to a financial statement audit. While the RIA must still design appropriate policies and procedures, there can be a sizeable administrative resource efficiency and cost effectiveness to exploring the surprise examination option. Special caution regarding custody examinations for funds that self-custody investments, including digital and virtual currenciesRIAs that self-custody their assets, including those invested in digital and virtual currencies, should pay special attention to whether they self-custody their assets or whether the assets are held by a qualified custodian. The SEC defines qualified custodians narrowly to include:
Management should carefully evaluate whether their holdings are held by an appropriately qualified custodian. Additional requirements under Internal Control Report – Rule 206(4)-2(a)(6) Internal Control Report – Rule 206(4)-2(a)(6) establishes additional requirements for an investment adviser that itself, or its related person, maintain client funds or securities as a qualified custodian in connection with advisory services provided to clients. Such an investment adviser must obtain or receive from its related person an internal control report related to itself or its affiliates’ custody services, including the safeguarding of funds and securities, prepared by an independent public accountant that is registered with, and subject to inspection, by the PCAOB at least once each calendar year. These rules may add a significant complexity to an RIA seeking to obtain a custody examination to satisfy its custody requirements. ConclusionEach investment adviser must review the requirements for their organization to determine the right path. We strongly recommend discussing your unique situation with an audit advisor prior to making a decision to ensure pertinent factors are considered in your decision. For more information on this topic, or to learn how Baker Tilly asset management industry specialists can help, contact our team. What is the SEC Custody Rule?Under rule 206(4)-2 of the Advisers Act, otherwise known as the Custody Rule, it is a fraudulent practice for a registered investment adviser to have custody of client funds or securities, unless the adviser takes certain required steps to protect the assets.
What makes a qualified custodian?A qualified custodian either maintains client funds and securities in a separate account for each client under that client's name, or in accounts that contain only client funds and securities under the name of the investment adviser as agent or trustee for the clients.
When can an investment adviser borrow from a client quizlet?Reference: 10.17 in the License Exam Manual. Under NASAA's Model Rule on Unethical Business Practices of Investment Advisers, Investment Adviser Representatives, and Federal Covered Advisers, when may an investment adviser borrow money from a client? When the client is a broker/dealer.
Who is a client of an investment adviser?Client: Any of your firm's investment advisory clients. This term includes clients from which your firm receives no compensation, such as family members of your supervised persons.
|