What is the Investment Advisers Act of 1940?
The Investment Advisers Act of 1940 is a U.S. federal law that defines the role and responsibilities of an investment advisor/adviser. Prompted in part by a 1935 report to Congress on investment trusts and investment companies prepared by the Securities and Exchange Commission (SEC), the act provides the legal groundwork for monitoring those who advise pension funds, individuals and institutions on investing. It specifies what qualifies as investment advice and stipulates who must register with state and federal regulators in order to dispense it.
What Shaped the Act
The original impetus of the Investment Advisers Act of 1940, as with most other financial regulations of the 1930s and 1940s, was the stock market crash of 1929 and its disastrous aftermath, the Great Depression.
Those calamities inspired the Securities Act of 1933, which succeeded in introducing more transparency in financial statements so investors could make informed decisions about investments, and to establish laws against misrepresentation and fraudulent activities in the securities markets.
In 1935, the SEC report to Congress warned of the dangers posed by certain investment counselors and advocated the regulation of those who provided investment advice. The same year as the report, the Public Utility Holding Act of 1935 passed, allowing the SEC to examine investment trusts.
Investment Advisers Act and the Investment Company Act, both passed in 1940, protected consumers against misleading and fraudulent investment advice.
Those developments prompted Congress to begin work not only on the Investment Advisers Act but the Investment Company Act of 1940. This related bill clearly defined the responsibilities and requirements of investment companies when offering publicly traded investment products including open-end mutual funds, closed-end mutual funds, and unit investment trusts.
Establishing Advisor Criteria
The Investment Advisers Act addressed who is and isn't an advisor/adviser by applying three criteria: what kind of advice is offered, how the individual is paid for their advice/method of compensation, and whether or not the lion's share of the advisor's income is generated by providing investment advice (the primary professional function). Also, if an individual leads a client to believe they are an investment adviser (by presenting themselves as that in advertising, for example), they can be considered one.
The act stipulates that anyone providing advice or making a recommendation on securities (as opposed to another type of investment) is considered an advisor. Individuals whose advice is merely incidental to their line of business may not be considered an advisor, however. Some financial planners and accountants may be considered advisors while some may not, for example.
The detailed guidelines for the Investment Advisers Act of 1940 can be found in Title 15 section 80b-1 of the United States Code.
$25 Million in Assets
How much an advisor/adviser needs to have under management to be required to register with the SEC under the Investment Advisers Act of 1940.
Registration as an Advisor
The agency with whom advisors need to register depends mostly on the value of the assets they manage, along with whether they advise corporate clients or only individuals. In general, advisors who have at least $25 million in assets under management or provide advice to investment companies are required to register with the SEC. Advisors managing smaller amounts typically register with state securities authorities.
Those amounts were amended by Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which allowed many advisors who previously registered with the SEC to now do so with their state regulators, because they managed less money than the new federal rules required. But the Dodd-Frank Act also initiated registration requirements by those who manage private funds, such as hedge funds and private equity funds, who were previously exempt from registration despite often managing very large sums of money for investors.
According to the SEC, the cumulative impact of the Dodd-Frank Act registration changes was "a 10% decrease in the number of advisers registered with the Commission, but a 13% increase in the total assets under management of those registered advisers."