Chapter DFI-Sec 5

DFI-Sec 5.03 History History: Cr. Register, December, 1977, No. 264, eff. 1-1-78; r. and recr. (1), renum. (2) and (3) to be (3) and (4) and am., cr. (2), Register, December, 1980, No. 300, eff. 1-1-81; am. (3), Register, December, 1984, No. 348, eff. 1-1-85; am. (1) (h), Register, December, 1989, No. 408, eff. 1-1-90; am. (1) (intro.), renum. (4) to be (6), cr. (4) and (5), Register, December, 1991, No. 432, eff. 1-1-92; am. (1) (intro.), renum. (6) to be (7), cr. (6), Register, December, 1992, No. 444, eff. 1-1-93; am. (4), Register, December, 1994, No. 468, eff. 1-1-95; cr. (1) (m) and (n), Register, December, 1995, No. 480, eff. 1-1-96; am. (1) (intro.), renum. (2) to (5) and (7) to be (3) to (6) and (8) and am. (5) and (6), cr. (2) and (7), r. (6), Register, December, 1998, No. 516, eff. 1-1-99; cr. (1) (o), am. (5), Register, December, 1999, No. 528, eff. 1-1-00; am. (1) (h) and (5), renum. (1) (o) to be (3) (c) and am., cr. (1) (o), Register, December, 2000, No. 540, eff. 1-1-01; emerg. cr. (1) (p) and (q), eff. 1-1-01; CR 01-025: cr. (1) (p) and (q), Register, July, 2001, No. 547, eff. 8-1-01; CR 04-074: r. (2), renum. (3) to (8) to be (2) to (7) Register December 2004 No. 588, eff. 1-1-05; correction in (4) made under s. 13.93 (2m) (b) 7., Stats., Register December 2004 No. 588; CR 08-077: am. (1) (intro.), (f) to (k), (m) to (o) and (2) to (6) Register December 2008 No. 636, eff. 1-1-09; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.

DFI-Sec 5.035 DFI-Sec 5.035 Investment advisors with custody.

DFI-Sec 5.035(1) (1) Except as provided in sub. (2), and subject to the definitions in sub. (4), it shall be a prohibited business practice for an investment adviser registered, or required to be registered, to have custody of client funds or securities unless the investment adviser complies with all of the following:

DFI-Sec 5.035(1)(a) (a) The investment adviser notifies the division promptly in writing on Form ADV that the investment adviser has or may have custody.

DFI-Sec 5.035 Note Note: Form ADV is available online at the website of the Investment Adviser Registration Depository, www.iard.com, and may be filled out and submitted electronically.

DFI-Sec 5.035(1)(b) (b) A qualified custodian maintains the 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 investment adviser’s name as agent or trustee for the clients.

DFI-Sec 5.035(1)(c) (c) When an investment adviser opens an account with a qualified custodian on a client’s behalf, either under the client’s name or under the investment adviser’s name as agent, the investment adviser shall notify the client in writing of the qualified custodian’s name, address, and the manner in which the funds or securities are maintained, promptly when the account is opened and following any changes to this information.

DFI-Sec 5.035(1)(d) (d) Account statements shall be sent to clients in compliance with one of the following:

DFI-Sec 5.035(1)(d)1. 1. If client funds or securities are held by a qualified custodian, the investment adviser shall have a reasonable basis for believing that the qualified custodian sends an account statement, at least quarterly, to each client for which it maintains funds or securities, identifying the amount of funds and of each security in the account at the end of the period and setting forth all transactions in the account during that period.

DFI-Sec 5.035(1)(d)2. 2. If client funds or securities are held by the adviser:

DFI-Sec 5.035(1)(d)2.a. a. The investment adviser shall send an account statement, at least quarterly, to each client for whom the investment adviser has custody of funds or securities, identifying the amount of funds and of each security of which the investment adviser has custody at the end of the period and setting forth all transactions during that period; and

DFI-Sec 5.035(1)(d)2.b. b. The investment adviser shall engage an independent certified public accountant to verify all client funds and securities by actual examination at least once during each calendar year at a time chosen by the accountant without prior notice or announcement to the adviser and that is irregular from year to year. The accountant shall file a copy of the special examination report with the division within 30 days after the completion of the examination, stating that it has examined the funds and securities and describing the nature and extent of the examination; and

DFI-Sec 5.035(1)(d)2.c. c. Within one business day of the finding of any material discrepancies identified during the course of the examination under subd. 2. b., the accountant shall notify the division of the discrepancy by means of a facsimile transmission or electronic mail, followed by first class mail, directed to the division.

DFI-Sec 5.035(1)(d)3. 3. If the investment adviser is a general partner of a limited partnership, is a managing member of a limited liability company, or holds a comparable position for another type of pooled investment vehicle, the account statements required under par. (d) 1. or 2. a., shall be sent to each limited partner, member or other beneficial owner or their independent representative.

DFI-Sec 5.035(1)(e) (e) If a client does not receive account statements and notices directly from the adviser or custodian, the investment adviser shall obtain from the client a written designation of an independent representative to receive, on the client’s behalf, notices and account statements as required under pars. (c) and (d).

DFI-Sec 5.035(1)(f) (f) An adviser who has custody as defined in sub. (4) (a) as a result of having fees directly deducted from client accounts, as described in sub. (4) (a) 2., shall comply with all of the following:

DFI-Sec 5.035(1)(f)1. 1. The adviser shall obtain written authorization from the client to deduct advisory fees from the account held with the qualified custodian.

DFI-Sec 5.035(1)(f)2. 2. Except as provided in subd. 4., each time a fee is directly deducted from a client account, the adviser shall concurrently do both of the following:

DFI-Sec 5.035(1)(f)2.a. a. Send the qualified custodian notice of the amount of the fee to be deducted from the client’s account; and

DFI-Sec 5.035(1)(f)2.b. b. Send the client an invoice itemizing the fee. Itemization includes the formula used to calculate the fee, the amount of assets under management the fee is based on, and the time period covered by the fee.

DFI-Sec 5.035(1)(f)3. 3. The investment adviser notifies the division on Form ADV that the investment adviser intends to comply with subds. 1. and 2.

DFI-Sec 5.035(1)(f)4. 4. An investment adviser having custody as described in sub. (4) (a) 2. and who complies with the safekeeping requirements in pars. (a) through (f), is not required to meet the financial requirements for custodial advisers prescribed in s. DFI-Sec 5.02 (2).

DFI-Sec 5.035(1)(g) (g) An investment adviser who has custody as described in sub. (4) (a) 3. and who does not meet the exception provided under sub. (2) (c) shall comply with each of the following:

DFI-Sec 5.035(1)(g)1. 1. The investment adviser shall hire an independent party as defined in sub. (4) (b) to review all fees, expenses and capital withdrawals from the pooled accounts.

DFI-Sec 5.035(1)(g)2. 2. The investment adviser shall send all invoices or receipts to the independent party, detailing the amount of the fee, expenses or capital withdrawal, and the method of calculation so that the independent party can do both of the following:

DFI-Sec 5.035(1)(g)2.a. a. Determine that the payment is in accordance with the pooled investment vehicle standards set forth in the partnership agreement or membership agreement.

DFI-Sec 5.035(1)(g)2.b. b. Forward to the qualified custodian, written approval for payment of the fee, expense or capital withdrawal, and provide a copy to the investment adviser.

DFI-Sec 5.035(1)(g)3. 3. The investment adviser shall notify the division on Form ADV that the investment adviser intends to comply with subds. 1. and 2.

DFI-Sec 5.035(1)(g)4. 4. An investment adviser having custody as described in sub. (4) (a) 3. and who complies with the safekeeping requirements in pars. (a) through (e), together with the requirements in par. (g), will not be required to meet the financial requirements for custodial advisers prescribed in s. DFI-Sec 5.02 (2).

DFI-Sec 5.035(2) (2) 

DFI-Sec 5.035(2)(a) (a) With respect to shares of an open-end investment company as defined in section 5 (a) (1) of the investment company act of 1940, an investment adviser may use the investment company’s transfer agent in lieu of a qualified custodian for purposes of complying with sub. (1).

DFI-Sec 5.035(2)(b) (b)

DFI-Sec 5.035(2)(b)1. 1. An investment adviser is not required to comply with sub. (1) with respect to securities that meet all of the following requirements:

DFI-Sec 5.035(2)(b)1.a. a. The securities are acquired from the issuer in a transaction or series of transactions not involving a public offering.

DFI-Sec 5.035(2)(b)1.b. b. The securities are uncertificated, and ownership is recorded only on the records of the issuer or its transfer agent in the name of the client.

DFI-Sec 5.035(2)(b)1.c. c. The securities are transferable only with prior consent of the issuer or holders of the outstanding securities of the issuer.

DFI-Sec 5.035(2)(b)2. 2. The exemptions contained in subd. 1. are available with respect to securities held for the account of a limited partnership, limited liability company, or other type of pooled investment vehicle, only if the entity has audited financial statements that are distributed in compliance with par. (c), and the investment adviser notifies the division on Form ADV that the investment adviser intends to distribute the audited financial statements as prescribed above.

DFI-Sec 5.035(2)(c) (c) An investment adviser is not required to comply with par. (d) with respect to the account of a limited partnership, limited liability company, or another type of pooled investment vehicle that is subject to audit at least annually and distributes annually its audited financial statements prepared in accordance with generally accepted accounting principles to all limited partners, members, or other beneficial owners, within 120 days of the end of its fiscal year. The investment adviser shall notify the division on Form ADV that the investment adviser intends to comply with the audit safeguards described above.

DFI-Sec 5.035(2)(d) (d) An investment adviser is not required to comply with sub. (1) with respect to the account of an investment company registered under the investment company act of 1940.

DFI-Sec 5.035(2)(e) (e) An investment adviser is not required to comply with the safekeeping requirements of sub. (1) or the net worth requirements of s. DFI-Sec 5.02 (2) if the investment adviser has custody solely because the investment adviser is the trustee for a beneficial trust, if all of the following conditions are met for each trust:

DFI-Sec 5.035(2)(e)1. 1. The beneficial owner of the trust is a parent, a grandparent, a spouse, a sibling, a child or a grandchild of the adviser. Those relationships shall include “step” relationships.

DFI-Sec 5.035(2)(e)2. 2. For each account under subd. 1., the investment adviser complies with each of the following:

DFI-Sec 5.035(2)(e)2.a. a. The investment adviser provides a written statement to each beneficial owner of the account setting forth a description of the requirements of sub. (1) and the reasons why the investment adviser will not be complying with those requirements.

DFI-Sec 5.035(2)(e)2.b. b. The investment adviser obtains from each beneficial owner a signed and dated statement acknowledging the receipt of the written statement required under subd. 2. a.

DFI-Sec 5.035(2)(e)2.c. c. The investment adviser maintains a copy of the documents required in subd. 2. a. and b. until the account is closed or the investment adviser is no longer trustee.

DFI-Sec 5.035(2)(f) (f) Any adviser who intends to have custody of client funds or securities but is not able to utilize a qualified custodian as defined in sub. (4) (c) shall first obtain approval from the division and shall comply with all of the applicable safekeeping provisions under sub. (1), including taking responsibility for those requirements that are designated to be performed by a qualified custodian.

DFI-Sec 5.035(3) (3) 

DFI-Sec 5.035(3)(a) (a) If an investment adviser receives or obtains a client’s securities or funds inadvertently, but returns them to the client within three business days of receipt, or forwards third party checks within 24 hours of receipt, the adviser will not be considered to have custody, but shall keep the following records relating to the inadvertent custody:

DFI-Sec 5.035(3)(a)1. 1. A ledger or other listing of all securities or funds held or obtained, including the following information:

DFI-Sec 5.035(3)(a)1.a. a. Issuer.

DFI-Sec 5.035(3)(a)1.b. b. Type of security and series.

DFI-Sec 5.035(3)(a)1.c. c. Date of issue.

DFI-Sec 5.035(3)(a)1.d. d. For debt instruments, the denomination, interest rate and maturity date.

DFI-Sec 5.035(3)(a)1.e. e. Certificate number, including alphabetical prefix or suffix.

DFI-Sec 5.035(3)(a)1.f. f. Name in which registered.

DFI-Sec 5.035(3)(a)1.g. g. Date given to the adviser.

DFI-Sec 5.035(3)(a)1.h. h. Date sent to client or sender.

DFI-Sec 5.035(3)(a)1.i. i. Form of delivery to client or sender, or copy of the form of delivery to client or sender.

DFI-Sec 5.035(3)(a)1.j. j. Mail confirmation number, if applicable, or confirmation by client or sender of the fund’s or security’s return.

DFI-Sec 5.035(3)(a)2. 2. If an investment adviser obtains possession of securities that are acquired from an issuer in a transaction or series of transactions not involving any public offering that qualify for the exception from custody under sub. (2) (b), the adviser shall keep the following records:

DFI-Sec 5.035(3)(a)2.a. a. A record showing the issuer or current transfer agent’s name, address, telephone number and other applicable contact information pertaining to the party responsible for recording client interests in the securities; and

DFI-Sec 5.035(3)(a)2.b. b. A copy of any legend, shareholder agreement or other agreement showing that those securities are transferable only with prior consent of the issuer or holders of the outstanding securities of the issuer.

DFI-Sec 5.035(3)(b) (b) Each registered investment adviser whose principal office is in this state who has custody or possession of securities or funds of any client shall maintain and keep current the following books and records in addition to those required under sub. (1):

DFI-Sec 5.035(3)(b)1. 1. A copy of all documents required in sub. (1) (f) if the adviser is authorized or permitted to withdraw a client’s funds or securities maintained with a custodian upon the adviser’s instruction to the custodian.

DFI-Sec 5.035(3)(b)2. 2. A journal or other record showing all purchases, sales, receipts and deliveries of securities, including certificate numbers, for all accounts and all other debits and credits to the accounts.

DFI-Sec 5.035(3)(b)3. 3. A separate ledger account for each client showing all purchases, sales, receipts and deliveries of securities, the date and price of each purchase and sale, and all debits and credits.

DFI-Sec 5.035(3)(b)4. 4. Copies of confirmations of all transactions effected by or for the account of any client.

DFI-Sec 5.035(3)(b)5. 5. A record for each security in which any client has a position, which record shall show the name of each client having any interest in each security, the amount or interest of each client, and the location of each security.

DFI-Sec 5.035(3)(b)6. 6. A copy of each of the client’s quarterly account statements, as generated and delivered by the qualified custodian. If the adviser also generates a statement that is delivered to the client, the adviser shall also maintain copies of such statements along with the date such statements were sent to the clients.

DFI-Sec 5.035(3)(b)7. 7. If applicable to the adviser’s situation, a copy of the auditor’s report and financial statements and letter verifying the completion of the examination by an independent certified public accountant and describing the nature and extent of the examination.

DFI-Sec 5.035(3)(b)8. 8. A record of any finding by the independent certified public accountant of any material discrepancies found during the examination.

DFI-Sec 5.035(3)(b)9. 9. If applicable, evidence of the client’s designation of an independent representative.

DFI-Sec 5.035(3)(c) (c) If an investment adviser has custody because it advises a pooled investment vehicle, as defined in sub. (4) (a) 3., the adviser shall also keep the following records:

DFI-Sec 5.035(3)(c)1. 1. True, accurate and current account statements;

DFI-Sec 5.035(3)(c)2. 2. If the investment adviser complies with sub. (2) (c), the investment adviser shall make and maintain each of the following records:

DFI-Sec 5.035(3)(c)2.a. a. A record of the date of the audit.

DFI-Sec 5.035(3)(c)2.b. b. A copy of the audited financial statements.

DFI-Sec 5.035(3)(c)2.c. c. A record evidencing the mailing by the issuer of its audited financial statements to all limited partners, members or other beneficial owners within 120 days of the end of its fiscal year.

DFI-Sec 5.035(3)(c)3. 3. If the adviser complies with sub. (1) (g), the investment adviser shall make and maintain the following records:

DFI-Sec 5.035(3)(c)3.a. a. A copy of the written agreement with the independent party reviewing all fees and expenses, indicating the responsibilities of the independent third party.

DFI-Sec 5.035(3)(c)3.b. b. Copies of all invoices and receipts showing approval by the independent party for payment through the qualified custodian.

DFI-Sec 5.035(4) (4) 

DFI-Sec 5.035(4)(a) (a) “Custody” for purposes of this section, means holding directly or indirectly, client funds or securities, or having any authority to obtain possession of them, or having the ability to appropriate them in the following contexts, without limitation:

DFI-Sec 5.035(4)(a)1. 1. Possession of client funds or securities unless received inadvertently and returned to the sender promptly, but in any case within three business days of receiving them, except that receipt of checks drawn by clients and made payable to unrelated third parties will not meet the definition of custody if they are forwarded to the third party within 24 hours of receipt and the adviser maintains the records required under sub. (3) (a);

DFI-Sec 5.035(4)(a)2. 2. Any arrangement, including a general power of attorney, under which an investment adviser is authorized or permitted to withdraw client funds or securities maintained with a custodian upon the investment adviser’s instruction to the custodian; and

DFI-Sec 5.035(4)(a)3. 3. Acting in any capacity, such as general partner of a limited partnership, managing member of a limited liability company, or a comparable position for another type of pooled investment vehicle, or trustee of a trust, that provides an investment adviser or a supervised person out of the investment adviser, legal ownership of, or access to, client funds or securities.

DFI-Sec 5.035(4)(b) (b) “Independent party” for purposes of sub. (1) (g), means a person that meets all of the following:

DFI-Sec 5.035(4)(b)1. 1. The person is engaged by the investment adviser to act as an intermediary for the payment of fees, expenses and capital withdrawals from a pooled investment.

DFI-Sec 5.035(4)(b)2. 2. The person does not control, is not controlled by, and is not under common control with, the investment adviser.