[Federal Register Volume 60, Number 244 (Wednesday, December 20, 1995)]
[Rules and Regulations]
[Pages 65547-65550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30684]



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DEPARTMENT OF THE TREASURY
26 CFR Part 1

[TD 8635]
RIN 1545-AS92


Nonbank Trustee Net Worth Requirements

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final and temporary regulations.

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SUMMARY: This document contains regulations that provide guidance to 
nonbank trustees with respect to the adequacy of net worth requirements 
that must be satisfied in order to be or 

[[Page 65548]]
remain an approved nonbank trustee. These regulations affect nonbank 
trustees and custodians of individual retirement accounts, and nonbank 
custodians of qualified plans and tax-sheltered annuities.

EFFECTIVE DATE: These regulations are effective December 20, 1995.

FOR FURTHER INFORMATION CONTACT: Marjorie Hoffman, (202) 622-6030 (not 
a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    On December 6, 1994, temporary regulations (TD 8570) under section 
401 were published in the Federal Register (59 FR 62570). A notice of 
proposed rulemaking (EE-38-94), cross-referencing the temporary 
regulations, was published in the Federal Register (59 FR 62644) on the 
same day. The temporary regulations provide guidance on the adequacy of 
net worth requirements for nonbank trustees and custodians of 
individual retirement plans, and for nonbank custodians of custodial 
accounts of qualified plans and tax-sheltered annuities.
    After consideration of all of the comments, the temporary 
regulations are replaced and the proposed regulations are adopted as 
revised by this Treasury decision. Because section 401(d)(1), under 
which Sec. 1.401-12 was originally issued, was repealed by section 
237(a) of the Tax Equity and Fiscal Responsibility Act of 1982, Public 
Law 97-248 (1982), these final regulations also move all the rules for 
nonbank trustees and custodians that were previously in Sec. 1.401-
12(n) to Sec. 1.408-2.

Explanation of Provisions

    The fiduciary conduct rules for nonbank trustees and custodians 
under longstanding Treasury regulations require nonbank trustees and 
custodians to maintain a minimum amount of net worth in order to 
qualify as an approved nonbank trustee or custodian. Under this 
requirement, the nonbank trustee or custodian's net worth must exceed 
the greater of a specified dollar amount or a percentage of the value 
of all assets held in fiduciary accounts of retirement plans. A primary 
objective of this adequacy-of-net-worth requirement has been to ensure 
that nonbank trustees and custodians maintain a level of solvency 
commensurate with their financial and fiduciary responsibilities.
    Under the general net worth requirement, nonbank trustees and 
custodians may not accept new accounts unless their net worth exceeds 
the greater of $100,000 or four percent of the value of all assets held 
in fiduciary accounts. Additionally, nonbank trustees and custodians 
must take whatever steps are necessary (including the relinquishment of 
fiduciary accounts) to ensure that their net worth exceeds the greater 
of $50,000 or two percent of the value of all assets held by them in 
fiduciary accounts.
    For passive nonbank trustees and custodians (qualified nonbank 
entities that have no discretion to direct the investment of assets), 
the percentage requirements are lower. Specifically, passive nonbank 
trustees and custodians may not accept new accounts unless their net 
worth exceeds the greater of $100,000 or two percent of the value of 
all assets held in fiduciary accounts. Additionally, they must take 
appropriate action (including the relinquishment of fiduciary accounts) 
to ensure that their net worth exceeds the greater of $50,000 or one 
percent of the value of assets held in their fiduciary accounts.
    The proposed and temporary regulations provide a special rule for 
passive nonbank trustees and custodians that are broker-dealers and 
members of the Securities Investor Protection Corporation (SIPC). The 
proposed and temporary regulations provide that, to the extent that 
assets held in any fiduciary accounts are insured by SIPC in the event 
of the member's liquidation ($500,000 per account, $100,000 of which 
may be cash), the assets will be disregarded in determining the value 
of assets held in fiduciary accounts by the trustee or custodian for 
purposes of the percentage part of the net worth requirement.
    The final regulations adopt the provisions of the proposed and 
temporary regulations. In addition, in response to comments, the final 
regulations extend the SIPC-related relief to all nonbank trustees and 
custodians that are broker-dealers and members of SIPC rather than 
limiting the relief to passive nonbank trustees and custodians. The 
final regulations provide that the amount of the minimum net worth 
requirement for nonbank trustees and custodians that are SIPC members 
is reduced by either two percent of assets insured by SIPC (in the case 
of the minimum net worth requirement that applies to a trustee or 
custodian accepting additional accounts) or one percent of assets 
insured by SIPC (in the case of the minimum net worth requirement that 
must be satisfied to avoid a mandatory relinquishment of accounts). An 
example in the regulations illustrates this rule.
    The final regulations also retain the rule in the proposed and 
temporary regulations that increased the initial net worth requirement 
for all nonbank trustees and custodians. The purpose of the rule is to 
better assure that the enterprises are sound and well-funded during 
their start-up period. This initial net worth requirement requires all 
new entities applying for nonbank trustee or custodian status to have a 
net worth of not less than $250,000 for the most recent taxable year 
preceding the applicant's initial application.
    This new initial net worth requirement applies only to applications 
received after January 5, 1995. Previously approved nonbank trustees 
and custodians need only satisfy the ongoing net worth requirement.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It also has been determined that 
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to 
these regulations, and, therefore, a Regulatory Flexibility Analysis is 
not required. Pursuant to section 7805(f) of the Internal Revenue Code, 
the notice of proposed rulemaking preceding these regulations was 
submitted to the Small Business Administration for comment on its 
impact on small business.

Drafting Information

    The principal author of these regulations is Marjorie Hoffman, 
Office of the Associate Chief Counsel, (Employee Benefits and Exempt 
Organizations) IRS. However, other personnel from the IRS and Treasury 
Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 is amended by adding 
an entry in numerical order to read as follows:

    Authority: 26 U.S.C. 7805. * * *
    Sec. 1.401-12 also issued under 26 U.S.C. 401(d)(1). * * * 
    
[[Page 65549]]



Secs. 1.401-12 and 1.408-2   [Amended]

    Par. 2. Paragraph (n) of Sec. 1.401-12 is redesignated as paragraph 
(e) of Sec. 1.408-2 and the authority citation immediately following 
Sec. 1.401-12 is removed.


Sec. 1.401-12T   [Removed]

    Par. 3. Section 1.401-12T is removed.


Sec. 1.401(f)-1   [Amended]

    Par. 4. Section 1.401(f)-1 is amended by:
    1. Removing the language ``section 401(d)(1) and the regulations 
thereunder'' and adding ``Sec. 1.408-2(e)'' in its place in the last 
sentence of paragraph (b)(1)(ii).
    2. Removing the language ``401(d)(1) and adding ``408(n)'' in its 
place in paragraph (d)(1).
    Par. 5. Section 1.408-2 is amended by:
    1. Removing the language ``401(d)(1)'' and adding ``408(n)'' in its 
place in paragraph (b)(2)(i).
    2. Removing the language ``(b)(2)(ii)'' and adding ``(e)'' in its 
place in paragraph (b)(2)(i).
    3. Removing paragraph (b)(2)(ii).
    4. Redesignating (b)(2)(iii) as (b)(2)(ii).
    5. Removing newly designated paragraphs (e)(1) and (e)(9).
    6. Further redesignating paragraphs (e)(2) through (e)(8) as 
paragraphs (e)(1) through (e)(7), respectively.
    7. Removing the language ``For the plan years to which this 
paragraph applies, the'' and adding ``The'' in its place, and removing 
the language ``(c)(1)(i)'' and adding ``(b)'' in its place, in the 
first sentence of newly designated paragraph (e)(1).
    8. Removing the language ``401'' and adding ``408'' in its place, 
and removing the language ``(n)(3) to (n)(7)'' and adding ``(e)(2) to 
(e)(6)'' in its place, in the second sentence of newly designated 
paragraph (e)(1).
    9. Removing the language ``Commissioner of Internal Revenue, 
Attention: E:EP, Internal Revenue Service, Washington, D.C. 20224'' and 
adding ``the address prescribed by the Commissioner in revenue rulings, 
notices, and other guidance published in the Internal Revenue Bulletin 
(see Sec. 601.601(d)(2)(ii)(b) of this chapter)'' in its place in the 
third sentence of newly designated paragraph (e)(1), in the last 
sentence of newly designated (e)(6)(9)(iv), and in the first sentence 
of newly designated (e)(6)(v)(B).
    10. Removing the language ``(n)(8)'' and adding ``(e)(7)'' in its 
place in the last sentence of newly designated paragraph (e)(1).
    11. Removing the language ``(n)(6)'' and adding ``(e)(5)'' in its 
place in newly designated paragraph (e)(2)(iv).
    12. Redesignating newly designated paragraph (e)(5)(ii)(A) as 
paragraph (e)(5)(ii)(E).
    13. Removing the language ``(n)(7)(i)(A)'' and adding 
``(e)(6)(i)(A)'' in its place in newly designated paragraph 
(e)(5)(ii)(B)(2) and in newly designated paragraph (e)(5)(ii)(C)(2).
    14. Removing the language ``(n)(6)(iii)(A)'' and adding 
``(e)(5)(iii)(A)'' in its place in newly designated paragraph 
(e)(5)(iii)(B).
    15. Removing the language ``(n)(6)(vi)'' and adding ``(e)(5)(vi)'' 
in its place in newly designated paragraph (e)(5)(v)(A).
    16. Removing the language ``(n)(6)(viii)(C)'' and adding 
``(e)(5)(viii)(C)'' in its place in newly designated paragraph 
(e)(5)(vi).
    17. Removing the language ``(n)(3)(v)'' and adding ``(e)(2)(v)'' in 
its place, and removing the language ``(n)(8)'' and adding ``(e)(7)'' 
in its place, in newly designated paragraph (e)(5)(viii).
    18. Removing the language ``(n)(6)(i)(A)(3)'' and adding 
``(e)(5)(i)(A)(3)'' in its place, and removing the language 
``(n)(5)(ii)(E)'' and adding ``(e)(4)(ii)(E)'' in its place, in the 
third sentence of newly designated paragraph (e)(6)(i)(A).
    19. Removing the language ``(n)(7)(iii)(A)(3)'' and adding 
``(e)(6)(iii)(A)(3)'' in its place in newly designated paragraph 
(e)(6)(iii)(C).
    20. Revising newly designated paragraph (e)(5)(ii)(A) and adding 
paragraph (e)(5)(ii)(D).
    21. The revision and addition read as follows:


Sec. 1.408-2  Individual retirement accounts.

* * * * *
    (e) * * *
* * * * *
    (5) * * *
    (ii) Adequacy of net worth--(A) Initial net worth requirement. In 
the case of applications received after January 5, 1995, no initial 
application will be accepted by the Commissioner unless the applicant 
has a net worth of not less than $250,000 (determined as of the end of 
the most recent taxable year). Thereafter, the applicant must satisfy 
the adequacy of net worth requirements of paragraph (e)(6)(ii) (B) and 
(C) of this section.
* * * * *
    (D) Assets held by members of SIPC--(1) For purposes of satisfying 
the adequacy-of-net-worth requirement of this paragraph, a special rule 
is provided for nonbank trustees that are members of the Securities 
Investor Protection Corporation (SIPC) created under the Securities 
Investor Protection Act of 1970 (SIPA)(15 U.S.C. 78aaa et seq., as 
amended). The amount that the net worth of a nonbank trustee that is a 
member of SIPC must exceed is reduced by two percent for purposes of 
paragraph (e)(5)(ii)(B)(2), and one percent for purposes of paragraph 
(e)(5)(ii)(C)(2), of the value of assets (determined on an account-by-
account basis) held for the benefit of customers (as defined in 15 
U.S.C. 78fff-2(e)(4)) in fiduciary accounts by the nonbank trustee to 
the extent of the portion of each account that does not exceed the 
dollar limit on advances described in 15 U.S.C. 78fff-3(a), as amended, 
that would apply to the assets in that account in the event of a 
liquidation proceeding under the SIPA.
    (2) The provisions of this special rule for assets held in 
fiduciary accounts by members of SIPC are illustrated in the following 
example.

    Example--(a) Trustee X is a broker-dealer and is a member of the 
Securities Investment Protection Corporation. Trustee X also has 
been approved as a nonbank trustee for individual retirement 
accounts (IRAs) by the Commissioner but not as a passive nonbank 
trustee. Trustee X is the trustee for four IRAs. The total assets of 
each IRA (for which Trustee X is the trustee) as of the most recent 
valuation date before the last day of Trustee X's taxable year 
ending in 1995 are as follows: the total assets for IRA-1 is 
$3,000,000 (all of which is invested in securities); the value of 
the total assets for IRA-2 is $500,000 ($200,000 of which is cash 
and $300,000 of which is invested in securities), the value of the 
total assets for IRA-3 is $400,000 (all of which is invested in 
securities); and the value of the total assets of IRA-4 is $200,000 
(all of which is cash). The value of all assets held in fiduciary 
accounts, as defined in Sec. 1.408-2(e)(6)(viii)(A), is $4,100,000.
    (b) The dollar limit on advances described in 15 U.S.C. 
Sec. 78fff-3(a) that would apply to the assets in each account in 
the event of a liquidation proceeding under the Securities Investor 
Protection Act of 1970 in effect as of the last day of Trustee X's 
taxable year ending in 1995 is $500,000 per account (no more than 
$100,000 of which is permitted to be cash). Thus, the dollar limit 
that would apply to IRA-1 is $500,000; the dollar limit for IRA-2 is 
$400,000 ($100,000 of the cash and the $300,000 of the value of the 
securities); the dollar limit for IRA-3 is $400,000 (the full value 
of the account because the value of the account is less than 
$500,000 and no portion of the account is cash); and the dollar 
limit for IRA-4 is $100,000 (the entire account is cash and the 
dollar limit per account for cash is $100,000). The aggregate dollar 
limits of the four IRAs is $1,400,000.
    (c) For 1996, the amount determined under Sec. 1.408-
2(e)(6)(ii)(B) is determined as follows for Trustee X: (1) four 
percent of $4,100,000 equals $164,000; (2) two percent of $1,400,000 
equals $28,000; and (3) $164,000 minus $28,000 equals $136,000. 
Thus, 

[[Page 65550]]
because $136,000 exceeds $100,000, the minimum net worth necessary for 
Trustee X to accept new accounts for 1996 is $136,000.
    (d) For 1996, the amount determined under Sec. 1.408-
2(e)(6)(ii)(C) for Trustee X is determined as follows: (1) two 
percent of $4,100,000 equals $82,000; (2) one percent of $1,400,000 
equals $14,000; and (3) $82,000 minus $14,000 equals $68,000. Thus, 
because $68,000 exceeds $50,000, the minimum net worth necessary for 
Trustee X to avoid a mandatory relinquishment of accounts for 1996 
is $68,000.
* * * * *
Margaret Milner Richardson,
Commissioner of Internal Revenue.
    Approved: December 12, 1995.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 95-30684 Filed 12-19-95; 8:45 am]
BILLING CODE 4830-01-U