A No Action letter released by the SEC in February 2017 clarified its interpretation of the rule1 for asset custody. Quoting from a précis on the subject prepared by Fidelity Investments:
The SEC has clarified that an adviser who has the power to disburse client funds to a third party under a standing letter of instruction (“SLOA”) is deemed to have custody. Advisers who act upon these instructions have to update their ADV and are subject to surprise independent verification, annually
It is to be noted however that the SEC will take no action on the basis of that custody – i.e., will in effect treat that custody as notional – provided an adviser’s SLOAs conform to seven No Action Relief Conditions (quoting again from Fidelity’s summary of the SEC letter):
- The client provides an instruction to the qualified custodian, in writing, that includes the client’s signature, the third party’s name, and either the third party’s address or the third party’s account number at a custodian to which the transfer should be directed.
- The client authorizes the investment adviser, in writing, either on the qualified custodian’s form or separately, to direct transfers to the third party either on a specified schedule or from time to time.
- The client’s qualified custodian performs appropriate verification of the instruction, such as a signature review or other method to verify the client’s authorization, and provides a transfer of funds notice to the client promptly after each transfer.
- The client has the ability to terminate or change the instruction to the client’s qualified custodian.
- The investment adviser has no authority or ability to designate or change the identity of the third party, the address, or any other information about the third party contained in the client’s instruction.
- The investment adviser maintains records showing that the third party is not a related party of the investment adviser or located at the same address as the investment adviser.
- The client’s qualified custodian sends the client, in writing, an initial notice confirming the instruction and an annual notice reconfirming the instruction.
Working with our primary custodians – TD Ameritrade, Schwab, and Fidelity – Schultz Collins intends to meet those conditions.
1 SEC Rule 206(4)‐2 (“Custody Rule”) under the Investment Advisers Act of 1940.