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Year-End Investment Adviser Compliance Reminders

By Robert R. Boeche, Partner; Robert D. Conca, Partner; and Andrew Steiger, Associate Attorney of Shustak Reynolds & Partners, P.C. posted on Wednesday, November 9, 2022.

Each year registered investment advisers (“RIAs”) must undertake a range of compliance tasks and obligations. While tasks can vary dependent upon the operations and registrations of the firm, all RIAs should examine their compliance program no less than annually. Additionally, the calendar year of 2022 saw several new compliance rules take effect, especially for RIAs registered with the Securities and Exchange Commission (“SEC”), which have increased the need to review compliance programs and potentially increase the complexity of such reviews. While not a comprehensive list, what follows is an overview of certain items RIAs should consider as we near the end of the year.[i]

  • Urgent Compliance Manual Update: Investment Adviser Marketing Rule. This year, the SEC made a significant change to its rules governing investment adviser marketing, advertising, and solicitation.[ii] In short, the old marketing rule was completely replaced by a high-level, principles-based rule which permits (and regulates) a broader range of RIA marketing activity.[iii] The effective date of the new marketing rule occurred on November 4, 2022. If not already performed, SEC registered RIAs should immediately update their compliance manuals to reflect the new marketing rule requirements.
  • Annual Retrospective Review. Beginning this year, and annually thereafter, advisers who provide investment advice to either ERISA-covered pension plans, and/or individual retirement accounts (“IRAs”), must conduct an “Annual Retrospective Review” to document how their activities over the fiscal year complied with the Department of Labor’s (“DOL”) Impartial Conduct Standards.[v] [vi] If they have not already, advisers serving retirement clients will also need to update their compliance manual to (a) include their process for documenting, among other things, a best interest analysis of each rollover recommendation, and (b) policies and procedures to mitigate and eliminate conflicts of interest.[vii] The 2022 review, report, and certification process should begin in Q1 2023, but must be completed no later than June 30, 2023, and then kept for six years. Upon request by the DOL, the certified report must be produced within 10 days.[viii] Penalties for intentional noncompliance depend on the circumstances, and can be severe if not promptly corrected.[ix] Consequences may include civil and criminal penalties under ERISA and the Tax Code, the imposition of an excise tax, and revocation of the Firm’s ability to rely on this exemption to receive additional compensation for certain common “prohibited transactions” for a period of 10 years.[x] Enforcement of this rule’s recordkeeping requirements could begin with spot checks as soon as the second half of 2023.
  • Annual Registration Fees. Each year, FINRA’s IARD system facilitates the annual registration renewal process for RIA firms and their investment professionals (“IARs”). Preliminary renewal statements are available on the E-Bill System on November 7, 2022, and show the renewal fees and annual system processing fees due. This year, full payment should be submitted via the IARD by no later than December 12, 2022. Firms that fail to satisfy renewal fee payments on time can face penalties, including the loss of their adviser registration status.[iv]
  • Annual Compliance Review. Rule 206(4)-7(b) of the Investment Advisers Act of 1940, as amended, requires SEC registered RIAs to perform an annual review of compliance policies and procedures to evaluate their effectiveness and implementation.[xi] The appropriate internal stakeholders should ensure a timely review and determine whether there are compliance issues to be addressed for the upcoming year. Areas to consider include, among others, new conflicts of interest, updates to investment or internal processes, or adjustments to the Firm’s business plan, business continuity and succession planning, cybersecurity, and marketing. For example, this year a compliance review might discover that the definitions for advertisement, endorsement, and testimonial have changed, and therefore updates to firm documents will be needed to reflect those changes.
  • Form ADV and Form CRS. RIAs must file updates to their Form ADV disclosure documents annually following the close of their fiscal year.[xii] Firms must file annual ADV updates within 90 days of the fiscal year end, meaning for most firms the submission deadline is March 31, 2023. Delivery of the new brochure to clients must then occur within 120 daysof fiscal year end (April 30, 2023). Each of the following must be updated accordingly:[xiii]
    • Form ADV Part 1. Information about the firm is communicated via the ADV Part 1, such as its identifying details and representations regarding its registration status.
    • Form ADV Part 2A. The ADV Part 2A is provided to each new client before signing an investment advisory agreement and contains the information potential clients might need to select a firm as their investment adviser.
    • Form ADV Part 2B. Firms that have supervised persons providing advisory services to clients may need to update ADV Part 2B if details change.
    • Form CRS. Also known as the ADV Part 3, this document provides a summary of the RIA’s business, including information regarding services, conflicts of interest, fees, and costs. Form CRS is required of SEC-registered RIAs (and broker-dealers) that provide services to retail investors.
  • State Filings. RIAs and Exempt Reporting Advisers (“ERAs”) may need to make state notice filings following the end of their fiscal year. Some triggers for state notice filings include, among other things, opening an office in a new state, or crossing a threshold number of clients in a new state. Notice filings are part of, and are therefore due with, Form ADV Part 1A. Fees for state filings are paid from an adviser’s IARD account.[xiv]
  • Amendments to Form D and Blue-Sky Filings. Advisers to private funds should consider whether they need to file or amend their Form D filing which relates to exempt offerings of securities. Blue-Sky filings give similar notice to individual states. At least annually, advisers should review the information in their Form D and Blue-Sky filings to determine whether any new or amended filings are necessary. Certain Blue-Sky filings expire on a periodic basis in some states and must be renewed. Similarly, private fund issuers must file an annual amendment to their Form D filing if the offering is continuing.[xv]
  • Form PF for Advisers to Private Funds. Advisers to larger private funds will also need to file Form PF. Whether a quarterly or annual filing is required will depend on certain characteristics of the adviser and the private funds it manages. Generally, quarterly filings are due within 60 days after each quarter ends (e.g., March 1, 2023) while annual filers have to file by 120 days after the fiscal year end (April 30, 2023).[xvi]
  • Regulatory Filings – 13F, 13H, 13D, 13G. Annual updates to Form 13F for institutional managers, Form 13H for large traders, and any amendments to Form 13D and Form 13G are due within 45 days of the end of the calendar year (February 14, 2023). Any quarterly updates to Form 13H should be filed promptly.[xvii]


If you need consultation regarding your upcoming regulatory and filing deadlines, or how the new Marketing Rule may apply to your firm, we are ready to help.
Shustak Reynolds & Partners regularly advises investment advisory and broker-dealer firms on the impact of applicable state and federal rules.
Partners Bob Boeche and Bob Conca can be reached at the firm’s San Diego office at (619) 696-9500.


[i] Most RIAs use a Dec. 31st fiscal year end, and this article is written with that in mind. However, the list of requirements remains the same for RIAs with different fiscal year end dates.

[ii] The December 22, 2020, adopting press release of the SEC’s replacement to the Marketing Rule 206(4)-1 can be found, along with a fact sheet outlining the changes, here:

[iii] Last year, Shustak Reynolds & Partners put out a blog diving into this topic in more detail, which can be found here:

[iv] More information about the IARD renewal program can be found here:

[v] Most RIAs are already complying with the Impartial Conduct Standards as a matter of course, which include (1) giving prudent and loyal advice to the retirement investor, (2) receiving only reasonable compensation and performing best execution, and (3) making no misleading statements about transactions or other relevant matters.

[vi] Due to enforcement delays implemented by the DOL, this initial retrospective review period has shifted several times. The consensus is now that the initial retrospective review period must review activities from Jan 21, 2022, to December 31, 2022. Each subsequent review period will be for the full 12-month fiscal year. For more, see:

[vii] Earlier this year, Shustak Reynolds & Partners put out a blog diving into this topic in more detail, which can be found here:

[viii] Federal Register, Vol. 85, No. 244; Friday, Dec 18, 2020; Rules and Regulations, p. 82838, located here:

[ix] Self-correction procedures are described in DOL FAQ at Q20.

[x] “Prohibited Transactions” are defined under ERISA Section 406(a), and broadly speaking means those transactions that create a conflict of interest. The new PTE 2020-02 exemption defines a rollover recommendation from one retirement account to another to be a prohibited transaction, and these transactions produce significant revenue for Firms that serve retirement investors; see also DOL FAQ at Q21, and 29 CFR 2550.408b-2(e)(1).

[xii] Material updates or changes to disciplinary disclosures may also require an “other than annual” update filing.

[xiii] Note also that the SEC announced forthcoming updates to Form ADV in connection with the new Marketing Rule which will include new sections of ADV for RIAs to complete. For more information about ADV filing requirements, see:

[xv] Form D, General Instructions, page 5:

[xvi] Form PF, General Instructions, page 6, question 9:

[xvii] Form 13F, General Instructions, page 1, question 1:; see also 17 CFR §§ 240.13h-1, 240.13d-101, and 240.13d-102.


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