The 5^th Circuit decision to vacate the DoL Fiduciary Rule (“Rule”) creates a dilemma for the Robo Advice arrangements that depend on the relief granted by that Rule.

Rolling back the Rule means that regulations revert to the 1975 rules[1]. Applying 1975 rules make virtually all Robo advisors to IRAs and defined contribution plans into fiduciaries, without the benefit of an exemption (since the Best Interest Contract Exemption also goes away).

It would appear that institutions that have created/acquired Robos will be unable to use these automated solutions for IRAs or DC Plans, without some additional exemption being created for them.

Presumably, the roll back would include the “no enforcement policy[2]”. Without that policy, Robos may not be permitted to operate.

Financial institutions and advisors must therefore make changes necessary to qualify for an existing exemption or seek a private exemption.

[1] In 1975, the Department issued a regulation, at 29 CFR 2510.3-21(c), defining the circumstances under which a person is treated as providing “investment advice” to an employee benefit plan within the meaning of section 3(21)(A)(ii) of ERISA (the “1975 regulation”), and the Department of the Treasury issued a virtually identical regulation under the Code.^[15^] The regulation narrowed the scope of the statutory definition of fiduciary investment advice by creating a five-part test that must be satisfied before a person can be treated as rendering investment advice for a fee. Under the regulation, for advice to constitute “investment advice,” an adviser who is not a fiduciary under another provision of the statute must—(1) render advice as to the value of securities or other property, or make recommendations as to the advisability of investing in, purchasing, or selling securities or other property (2) on a regular basis (3) pursuant to a mutual agreement, arrangement, or understanding with the plan or a plan fiduciary that (4) the advice will serve as a primary basis for investment decisions with respect to plan assets, and that (5) the advice will be individualized based on the particular needs of the plan or IRA. The regulation provides that an adviser is a fiduciary with respect to any particular instance of advice only if he or she meets each and every element of the five-part test with respect to the particular advice recipient or plan at issue.

[2] FAB 2017-01…during the phased implementation period ending on January 1, 2018, the Department will not pursue claims against fiduciaries who are working diligently and in good faith to comply with the fiduciary duty rule and exemptions, or treat those fiduciaries as being in violation of the fiduciary duty rule and exemptions.

On March 28, 2017, the Treasury Department and the IRS issued IRS Announcement 2017-4 stating that the IRS will not apply § 4975 (which provides excise taxes relating to prohibited transactions) and related reporting obligations with respect to any transaction or agreement to which the Labor Department’s temporary enforcement policy described in FAB 2017-01, or other subsequent related enforcement guidance, would apply. The Treasury Department and the IRS have confirmed that, for purposes of applying IRS Announcement 2017-4, this FAB 2017-02 constitutes “other subsequent related enforcement guidance.”