SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 275

[Release No. IA-3372; File No. S7-17-11]

RIN 3235-AK71

Investment Adviser Performance Compensation

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

SUMMARY: The Securities and Exchange Commission (“Commission” or “SEC”) is adopting 

amendments to the rule under the Investment Advisers Act of 1940 that permits investment 

advisers to charge performance based compensation to “qualified clients.” The amendments

revise the dollar amount thresholds of the rule’s tests that are used to determine whether an 

individual or company is a qualified client. These rule amendments codify revisions that the 

Commission recently issued by order that adjust the dollar amount thresholds to account for the 

effects of inflation. In addition, the rule amendments: provide that the Commission will issue an 

order every five years in the future adjusting the dollar amount thresholds for inflation; exclude 

the value of a person’s primary residence and certain associated debt from the test of whether a 

person has sufficient net worth to be considered a qualified client; and add certain transition 

provisions to the rule.

EFFECTIVE DATE: The amendments are effective on May 22, 2012.

FOR FURTHER INFORMATION CONTACT: Daniel K. Chang, Senior Counsel, or C. 

Hunter Jones, Assistant Director, at 202-551-6792, Office of Regulatory Policy, Division of 

Investment Management, Securities and Exchange Commission, 100 F Street, NE, Washington, 

DC 20549-8549.
2

SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to rule 

205-3 [17 CFR 275.205-3] under the Investment Advisers Act of 1940 (“Advisers Act” or 

“Act”).

1

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................................... 2

II. DISCUSSION ......................................................................................................................... 5

A. Inflation Adjustment of Dollar Amount Thresholds................................................5

B. Exclusion of the Value of Primary Residence from Net Worth 

Determination ..........................................................................................................8

C. Transition Provisions.............................................................................................16

D. Effective Date ........................................................................................................20

III. COST-BENEFIT ANALYSIS .................................................................................................. 20

A. Benefits..................................................................................................................22

B. Costs.......................................................................................................................24

IV. PAPERWORK REDUCTION ACT ........................................................................................... 31

V. REGULATORY FLEXIBILITY ACT CERTIFICATION............................................................... 32

VI. STATUTORY AUTHORITY ................................................................................................... 33

TEXT OF RULES......................................................................................................................... 33

I. INTRODUCTION

Section 205(a)(1) of the Investment Advisers Act generally restricts an investment 

adviser from entering into, extending, renewing, or performing any investment advisory contract 

that provides for compensation to the adviser based on a share of capital gains on, or capital 

appreciation of, the funds of a client.2

 1 15 U.S.C. 80b. Unless otherwise noted, all references to statutory sections are to the Investment 

Advisers Act, and all references to rules under the Advisers Act, including rule 205-3, are to Title 

17, Part 275 of the Code of Federal Regulations [17 CFR 275].

 Congress restricted these compensation arrangements 

(also known as performance compensation or performance fees) in 1940 to protect advisory 

clients from arrangements it believed might encourage advisers to take undue risks with client 

2 15 U.S.C. 80b-5(a)(1).
3

funds to increase advisory fees.3 Congress subsequently authorized the Commission to exempt 

any advisory contract from the performance fee restrictions if the contract is with persons that 

the Commission determines do not need the protections of those restrictions.

4

The Commission adopted rule 205-3 in 1985 to exempt an investment adviser from the 

restrictions against charging a client performance fees in certain circumstances.5

 The rule, when 

adopted, allowed an adviser to charge performance fees if the client had at least $500,000 under 

management with the adviser immediately after entering into the advisory contract 

(“assets-under-management test”) or if the adviser reasonably believed the client had a net worth 

of more than $1 million at the time the contract was entered into (“net worth test”). The 

Commission stated that these standards would limit the availability of the exemption to clients 

who are financially experienced and able to bear the risks of performance fee arrangements.6

In 1998, the Commission amended rule 205-3 to, among other things, change the dollar 

amounts of the assets-under-management test and net worth test to adjust for the effects of 

 3 H.R. Rep. No. 2639, 76th Cong., 3d Sess. 29 (1940). Performance fees were characterized as 

“heads I win, tails you lose” arrangements in which the adviser had everything to gain if 

successful and little, if anything, to lose if not. S. Rep No. 1775, 76th Cong., 3d Sess. 22 (1940).

4 Section 205(e) of the Advisers Act. Section 205(e) of the Advisers Act authorizes the 

Commission to exempt conditionally or unconditionally from the performance fee prohibition 

advisory contracts with persons that the Commission determines do not need its protections. 

Section 205(e) provides that the Commission may determine that persons do not need the 

protections of section 205(a)(1) on the basis of such factors as “financial sophistication, net 

worth, knowledge of and experience in financial matters, amount of assets under management, 

relationship with a registered investment adviser, and such other factors as the Commission 

determines are consistent with [section 205].”

5 Exemption To Allow Registered Investment Advisers to Charge Fees Based Upon a Share of 

Capital Gains Upon or Capital Appreciation of a Client’s Account, Investment Advisers Act 

Release No. 996 (Nov. 14, 1985) [50 FR 48556 (Nov. 26, 1985)] (“1985 Adopting Release”). 

The exemption applies to the entrance into, performance, renewal, and extension of advisory 

contracts. See rule 205-3(a).

6 See 1985 Adopting Release, supra note 5, at Sections I.C and II.B. The rule also imposed other 

conditions, including specific disclosure requirements and restrictions on calculation of 

performance fees. See id. at Sections II.C – E.
4

inflation since 1985.

7

 The Commission revised the former from $500,000 to $750,000, and the 

latter from $1 million to $1.5 million.

8

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”)9

amended section 205(e) of the Advisers Act to require that the Commission adjust for inflation 

the dollar amount thresholds in rules under the section, rounded to the nearest $100,000.10 

Separately, the Dodd-Frank Act also required that we adjust the net worth standard for an 

“accredited investor” in rules under the Securities Act of 1933 (“Securities Act”),

11 such as 

Regulation D,12 to exclude the value of a person’s primary residence.13

In May 2011, the Commission published a notice of intent to issue an order revising the 

dollar amount thresholds of the assets-under-management and the net worth tests of rule 205-3 to 

account for the effects of inflation.

14

 7 See Exemption To Allow Investment Advisers To Charge Fees Based Upon a Share of Capital 

Gains Upon or Capital Appreciation of a Client’s Account, Investment Advisers Act Release No. 

1731 (July 15, 1998) [63 FR 39022 (July 21, 1998)] (“1998 Adopting Release”).

 Our release (“Proposing Release”) also proposed to amend 

the rule itself to reflect any inflation adjustments to the dollar amount thresholds that we might 

8 See id. at Section II.B.1.

9 Pub. L. No. 111-203, 124 Stat. 1376 (2010). 

10 See section 418 of the Dodd-Frank Act (requiring the Commission to issue an order every five 

years revising dollar amount thresholds in a rule that exempts a person or transaction from section 

205(a)(1) of the Advisers Act if the dollar amount threshold was a factor in the Commission’s 

determination that the persons do not need the protections of that section).

11 15 U.S.C. 77a - 77z-3. 

12 See 17 CFR 230.501 - .508. 

13 See section 413(a) of the Dodd-Frank Act.

14 See Investment Adviser Performance Compensation, Investment Advisers Act Release No. 3198 

(May 10, 2011) [76 FR 27959 (May 13, 2011)] (“Proposing Release”). Rule 205-3 is the only 

exemptive rule issued under section 205(e) of the Advisers Act that includes dollar amount tests, 

which are the assets-under-management and net worth tests. See supra text accompanying note 

10.
5

issue by order.

15

On July 12, 2011, we issued an order revising the threshold of the 

assets-under-management test to $1 million, and of the net worth test to $2 million.

 In addition, our proposed amendments (i) stated that the Commission would 

issue an order every five years adjusting for inflation the dollar amount thresholds, (ii) excluded

the value of a person’s primary residence from the test of whether a person has sufficient net 

worth to be considered a “qualified client,” and (iii) modified certain transition provisions of the 

rule.

16 We 

received approximately 50 comments on our proposed rule amendments.17

II. DISCUSSION

 Today we are 

adopting amendments to rule 205-3 largely as we proposed them, with modifications to address 

issues raised by commenters, as discussed further below. 

A. Inflation Adjustment of Dollar Amount Thresholds

We are amending rule 205-3 in three ways to carry out the required inflation adjustment 

of the dollar amount thresholds of the rule. First, we are revising the dollar amount thresholds 

that currently apply to investment advisers, to codify the order we issued on July 12, 2011. As 

amended, paragraph (d) of rule 205-3 provides that the assets-under-management threshold is $1 

million and that the net worth threshold is $2 million, which are the revised amounts we issued 

by order.

18 Although some commenters objected to raising these dollar amount thresholds,19

 15 Id. 

16 See Order Approving Adjustment for Inflation of the Dollar Amount Tests in Rule 205-3 under 

the Investment Advisers Act of 1940, Investment Advisers Act Release No. 3236 (July 12, 2011) 

[76 FR 41838 (July 15, 2011)] (“Order”). The Order is effective as of September 19, 2011. Id. 

The order applies to contractual relationships entered into on or after the effective date, and does 

not apply retroactively to contractual relationships previously in existence.

17 The comment letters we received on the Proposing Release are available on our website at 

http://www.sec.gov/comments/s7-17-11/s71711.shtml.

18 The calculation used to determine the revised dollar amounts in the tests is described below. See 
6

section 205(e) of the Advisers Act requires that we adjust the amounts for inflation.20

Second, we are adding to rule 205-3, as proposed, a new paragraph (e) that states that the 

Commission will issue an order every five years adjusting for inflation the dollar amount 

thresholds of the assets-under-management and net worth tests of the rule. 21 These periodic 

adjustments are required by the Advisers Act,

22 and most commenters supported this amendment

to the rule.

23

 

infra note 25. As we noted in the Proposing Release, an investment adviser can include in 

determining the amount of assets under management the assets that a client is contractually 

obligated to invest in private funds managed by the adviser. Only bona fide contractual 

commitments may be included, i.e., those that the adviser has a reasonable belief that the investor 

will be able to meet. See Proposing Release, supra note 15, at n.17.

19 Some commenters maintained, for example, that raising the dollar amount thresholds would limit 

the investment options for those investors that fall below the new thresholds, and would harm 

smaller funds that rely on investments from investors with more limited resources to operate. 

See, e.g., Comment Letter of Crescat Portfolio Management LLC (May 11, 2011) (“Crescat 

Portfolio Comment Letter”); Comment Letter of Hyonmyong Cho (June 8, 2011) (“H. Cho 

Comment Letter”); Comment Letter of Harold Clyde (June 4, 2011) (“H. Clyde Comment 

Letter”); Comment Letter of Douglas Estadt (June 7, 2011) (“D. Estadt Comment Letter”). Other 

commenters supported raising the dollar amount thresholds, noting that this change would ensure 

that the “qualified client” standard is limited to clients who are financially experienced and able 

to bear the risks of performance fee arrangements. See, e.g., Comment Letter of Better Markets, 

Inc. (July 11, 2011) (“Better Markets Comment Letter”); Comment Letter of Certified Financial 

Planner Board of Standards, Inc. (July 11, 2011) (“CFP Board Comment Letter”); Comment 

Letter of Managed Funds Association (July 8, 2011) (“MFA Comment Letter”); Comment Letter 

of North American Securities Administrators Association, Inc. (July 11, 2011) (“NASAA 

Comment Letter”).

20 See supra note 10.

21 Rule 205-3(e) provides that the Commission will issue an order on or about May 1, 2016 and 

approximately every five years thereafter adjusting the assets-under-management and net worth 

tests for the effects of inflation. These adjusted amounts will apply to contractual relationships 

entered into on or after the effective date of the order, and will not apply retroactively to 

contractual relationships previously in existence. See supra note 16. The proposed rule would 

have stated that the Commission’s order would be effective on or about May 1. We have deleted 

the word “effective” in the final rule to reflect the fact that the effective date will likely be later 

than May 1. See Order, supra note 16 (setting effective date of the order approximately 60 days 

after the order’s issuance).

22 See supra note 10.

23 See Comment Letter of Chris Barnard (May 31, 2011) (“C. Barnard Comment Letter”); Better 

Markets Comment Letter; CFP Board Comment Letter; Comment Letter of Investment Adviser 

Association (July 11, 2011) (“IAA Comment Letter”); MFA Comment Letter. One commenter 
7

Amended rule 205-3(e) also specifies the price index on which future inflation 

adjustments will be based.24 The index is the Personal Consumption Expenditures Chain-Type 

Price Index (“PCE Index”),25 which is published by the Department of Commerce.

26 The dollar 

amount tests we adopted in 1998 will be the baseline for future calculations.

27 As we noted in 

the Proposing Release, the use of the PCE Index is appropriate because it is an indicator of 

inflation in the personal sector of the U.S. economy28

 

stated that the dollar amount tests should be reevaluated more frequently. See NASAA Comment 

Letter.

and is used in other provisions of the 

24 See rule 205-3(e)(1).

25 The revised dollar amounts in the tests reflect inflation as of the end of 2010, and are rounded to 

the nearest $100,000 as required by section 418 of the Dodd-Frank Act. The 2010 PCE Index is 

111.112, and the 1997 PCE Index is 85.433. These values are slightly different from those 

provided in the Proposing Release because of periodic adjustments issued by the Department of

Commerce. See Proposing Release, supra note 15, at n.19; see also infra note 26. Assets-undermanagement test calculation to adjust for the effects of inflation: 111.112/85.433 x $750,000 = 

$975,431; $975,431 rounded to the nearest multiple of $100,000 = $1 million. Net worth test 

calculation to adjust for the effects of inflation: 111.112/85.433 x $1.5 million = $1,950,862; 

$1,950,862 rounded to the nearest multiple of $100,000 = $2 million.

26 The values of the PCE Index are available from the Bureau of Economic Analysis, a bureau of the 

Department of Commerce. See http://www.bea.gov. See also 

http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=64&ViewSeries=NO&Java

=no&Request3Place=N&3Place=N&FromView=YES&Freq=Year&FirstYear=1997&LastYear=

2010&3Place=N&Update=Update&JavaBox=no#Mid.

27 Rule 205-3(e) provides that the assets-under-management and net worth tests will be adjusted for 

inflation by (i) dividing the year-end value of the PCE Index for the calendar year preceding the 

calendar year in which the order is being issued, by the year-end value of the PCE Index for the 

calendar year 1997, (ii) multiplying the threshold amounts adopted in 1998 ($750,000 and $1.5 

million) by that quotient, and (iii) rounding each product to the nearest multiple of $100,000. For 

example, for the order the Commission would issue in 2016, the Commission would (i) divide the 

year-end 2015 PCE Index by the year-end 1997 PCE Index, (ii) multiply the quotient by 

$750,000 and $1.5 million, and (iii) round each of the two products to the nearest $100,000.

28 See Clinton P. McCully, Brian C. Moyer, and Kenneth J. Stewart, “Comparing the Consumer 

Price Index and the Personal Consumption Expenditures Price Index,” Survey of Current 

Business (Nov. 2007) at 26 n.1 (available at 

http://www.bea.gov/scb/pdf/2007/11%20november/1107_cpipce.pdf) (PCE Index measures 

changes in “prices paid for goods and services by the personal sector in the U.S. national income 

and product accounts” and is primarily used for macroeconomic analysis and forecasting). See

also FEDERAL RESERVE BOARD, MONETARY POLICY REPORT TO THE CONGRESS (Feb. 17, 2000) 

at n.1 (available at 

http://www.federalreserve.gov/boarddocs/hh/2000/february/ReportSection1.htm#FN1) (noting 
8

federal securities laws.

29 Commenters agreed that the PCE Index is an appropriate indicator of 

inflation30 and that the 1998 dollar amounts are the proper baseline for future inflation 

adjustments.31

B. Exclusion of the Value of Primary Residence from Net Worth Determination

We also are amending the net worth test in the definition of “qualified client” in rule 

205-3 to exclude the value of a natural person’s primary residence and certain debt secured by 

the property.

32 This change, although not required by the Dodd-Frank Act, is similar to the 

change that Act requires the Commission to make to rules under the Securities Act, such as 

Regulation D.

33

 

the reasons for using the PCE Index rather than the consumer price index).

29 See Proposing Release, supra note 15, at n.22 and accompanying text. 

30 See Better Markets Comment Letter; IAA Comment Letter; Comment Letter of Georg Merkl 

(July 11, 2011) (“G. Merkl Comment Letter”). Although two commenters asserted that inflation 

is not the proper unit of measure by which to adjust net worth requirements, see Comment Letter 

of David Hale (May 20, 2011) and Comment Letter of Joseph V. Delaney (undated) (“J. Delaney 

Comment Letter”), section 205(e) of the Advisers Act requires that we adjust the dollar amount 

thresholds of rule 205-3 for inflation.

31 See C. Barnard Comment Letter; G. Merkl Comment Letter. 

32 Rule 205-3(d)(1)(ii)(A).

33 See section 413(a) of the Dodd-Frank Act (requiring the Commission to adjust any net worth 

standard for an “accredited investor” as set forth in Commission rules under the Securities Act to 

exclude the value of a natural person’s primary residence). The Dodd-Frank Act does not require 

that the net worth standard for an accredited investor be adjusted periodically for the effects of 

inflation, although it does require the Commission at least every four years to “undertake a review 

of the definition, in its entirety, of the term ‘accredited investor’ ... [as defined in Commission 

rules] as such term applies to natural persons, to determine whether the requirements of the 

definition should be adjusted or modified for the protection of investors, in the public interest, 

and in light of the economy.” See section 413(b)(2)(A) of the Dodd-Frank Act. In January 2011, 

we proposed rule amendments to adjust the net worth standards for accredited investors in our 

rules under the Securities Act. See Net Worth Standard for Accredited Investors, Securities Act 

Release No. 9177 (Jan. 25, 2011) [76 FR 5307 (Jan. 31, 2011)] (“Accredited Investor Proposing 

Release”). We recently adopted those amendments substantially as proposed. See Net Worth 

Standard for Accredited Investors, Securities Act Release No. 9287 (Dec. 21, 2011) [76 FR 

81793 (Dec. 29, 2011)] (“Accredited Investor Adopting Release”).
9

We proposed to exclude the value of a person’s primary residence and the debt secured 

by the residence, up to the fair market value of the residence, from the calculation of a person’s 

net worth.34 A number of commenters supported the proposed exclusion.35 Many agreed with 

our statement in the Proposing Release that the value of an individual’s residence may have little 

relevance to the person’s financial experience and ability to bear the risks of performance fee 

arrangements.36 The Certified Financial Planner Board of Standards noted in its comment letter 

that the value of an individual’s equity in a residence is more likely to be a function of the length 

of time that the investor has owned the home, than to be a function of the investor’s experience 

or sophistication. Commenters also stated that excluding the value of the residence would 

promote regulatory consistency because it parallels the treatment of a person’s primary residence 

in determinations of net worth under other securities rules.

37

Many commenters objected to the exclusion of the value of a person’s primary residence 

from the calculation of net worth. Commenters expressed concern that the exclusion would limit 

the investment options of less wealthy investors and restrict their access to advisory 

arrangements that include performance fees.

38

 34 See Proposing Release, supra note 

 Some argued that excluding the value of a 

residence would harm advisers to smaller funds that rely on investments from less wealthy

15, at n.28 and accompanying text.

35 See, e.g., C. Barnard Comment Letter; CFP Board Comment Letter; MFA Comment Letter; 

NASAA Comment Letter.

36 See, e.g., C. Barnard Comment Letter; CFP Board Comment Letter; NASAA Comment Letter.

37 See, e.g., Better Markets Comment Letter; CFP Board Comment Letter; NASAA Comment 

Letter.

38 See, e.g., Comment Letter of Matthew Gee (June 14, 2011); Comment Letter of Gunderson 

Dettmer Stough Villeneuve Franklin Hachigan LLP (July 8, 2011) (“Gunderson Dettmer 

Comment Letter”); Comment Letter of Alvin Suvil (July 17, 2011) (“A. Suvil Comment Letter”). 
10

investors.39 Others argued that home ownership, compared to home rental, may in fact evidence 

greater rather than less financial experience on the part of individuals.

40

We continue to believe that the value of a person’s residence generally has little 

relevance to the individual’s financial experience and ability to bear the risks of performance fee 

arrangements, and therefore little relevance to the individual’s need for the Act’s protections

from performance fee arrangements.

41

Our exclusion of the value of a person’s primary residence from the net worth calculation

under the rule is similar to the approach that the Commission has taken in other rules to

 Although the process of purchasing and financing a home 

can contribute to an individual’s financial experience, the value of the individual’s equity interest 

in the residence reflects the prevailing market values at the time and can be a function of time in 

paying down the associated debt rather than a function of deliberate investment decision-making. 

In addition, because of the generally illiquid nature of residential assets, the value of an 

individual’s home equity may not help the investor to bear the risks of loss that are inherent in 

performance fee arrangements.

 39 See, e.g., Comment Letter of Roger Alsop (June 16, 2011) (“R. Alsop Comment Letter”); J. 

Delaney Comment Letter; Comment Letter of Molly Huntsman (June 23, 2011) (“M. Huntsman 

Comment Letter”); Comment Letter of Greg Thornton (June 2, 2011); Comment Letter of Greg J. 

Wimmer (June 3, 2011).

40 See M. Gee Comment Letter; Comment Letter of Douglas Wood (June 13, 2011) (“D. Wood 

Comment Letter”). Some commenters appeared to object to excluding residence from net worth 

on public policy grounds because the exclusion would discourage home ownership. See, e.g.,

Comment Letter of Ron Cuningham (June 25, 2011) (“R. Cuningham Comment Letter”); D. 

Wood Comment Letter.

41 For example, an individual who meets the net worth test only by including the value of his 

primary residence in the calculation is unlikely to be as able to bear the risks of performance fee 

arrangements as an individual who meets the test without including the value of her primary 

residence. We stated in 2006, when we proposed a minimum net worth threshold for establishing 

when an individual could invest in hedge funds pursuant to the safe harbor of Regulation D, that 

the value of an individual’s personal residence may bear little or no relationship to that person’s 

knowledge and financial sophistication. See Prohibition of Fraud by Advisers to Certain Pooled 

Investment Vehicles; Accredited Investors in Certain Private Investment Vehicles, Investment 

Advisers Act Release No. 2576 (Dec. 27, 2006) [72 FR 400 (Jan. 4, 2007)] at Section III.B.3.
11

determine the financial qualifications of investors. For example, the Commission excluded the 

value of a person’s primary residence and associated liabilities from the determination of 

whether a person is a “high net worth customer” in Regulation R under the Securities Exchange 

Act of 1934.

42 The Commission also excluded the value of a residence from the determination 

of whether an individual has sufficient investments to be considered a “qualified purchaser” 

under the Investment Company Act of 1940 (“Investment Company Act”) who can invest in 

certain private funds that are not registered under that Act.

43 As discussed above, this approach 

is also reflected in the Commission’s recent amendments to the definition of “accredited 

investor” in rules under the Securities Act, including Regulation D, as required by the 

Dodd-Frank Act.

44

Some commenters voiced particular concern about the exclusion of the residential value

at the same time that we adjust the dollar amount thresholds for inflation, and argued that the two 

changes together could cause too much change at one time.

45

 42 See, e.g., Definition of Terms and Exemptions Relating to the “Broker” Exceptions for Banks, 

Securities Exchange Act Release No. 56501 (Sept. 24, 2007) [72 FR 56514 (Oct. 3, 2007)] at 

Section II.C.1 (excluding primary residence and associated liabilities from the fixed-dollar 

threshold for “high net worth customers” under Rule 701 of Regulation R, which permits a bank 

to pay an employee certain fees for the referral of a high net worth customer or institutional 

customer to a broker-dealer without requiring registration of the bank as a broker-dealer).

 We note that we revised the dollar 

43 Section 3(c)(7) of the Investment Company Act provides an exclusion from the definition of 

“investment company” for any “issuer, the outstanding securities of which are owned exclusively 

by persons who, at the time of acquisition of such securities, are qualified purchasers, and which 

is not making and does not at that time propose to make a public offering of such securities.” A 

“qualified purchaser” under section 2(a)(51) of the Investment Company Act [15 U.S.C. 

80a-2(a)(51)] includes, among others, any natural person who owns not less than $5 million in 

investments, as defined by the Commission. Rule 2a51-1 under the Investment Company Act 

includes within the meaning of “investments” real estate held for investment purposes. 17 CFR 

270.2a51-1(b)(2). A personal residence is not considered an investment under rule 2a51-1, 

although residential property may be treated as an investment if it is not treated as a residence for 

tax purposes. See Privately Offered Investment Companies, Investment Company Act Release 

No. 22597 (Apr. 3, 1997) [62 FR 17512 (Apr. 9, 1997)] at text accompanying and following n.48.

44 See supra note 33 and accompanying text.

45 See, e.g., R. Alsop Comment Letter; R. Cuningham Comment Letter; M. Huntsman Comment 
12

amount threshold of the net worth test last July and that the revision was effective in September. 

Our current amendment of the net worth test to exclude the value of a residence, which will be 

effective in May 2012, will be effective approximately eight months after the previous change to 

the net worth test. Any further revisions of the dollar amount thresholds of rule 205-3 to adjust 

for inflation are not scheduled to occur until 2016.46

Some of the commenters who disagreed with the proposal to raise the dollar amount 

threshold of the net worth standard or to exclude the value of a residence from net worth, also 

disagreed that a person’s net worth should be used as a measure of eligibility for the exemption 

from the performance fee restrictions.

47 These commenters did not recommend an alternative 

standard that is objective and verifiable, and that would effectively distinguish between those 

investors who do, and those who do not, need the protections of the Act’s performance fee 

restrictions.

48

Our amendment of the net worth standard of rule 205-3 differs from the proposed 

amendment in one respect. The approach we are adopting today will generally require any 

increase in the amount of debt secured by the primary residence in the 60 days before the 

advisory contract is entered into to be included as a liability. As discussed below, this change 

will prevent debt that is incurred shortly before entry into an advisory contract from being 

 

Letter; A. Suvil Comment Letter. 

46 See rule 205-3(e).

47 See, e.g., J. Delaney Comment Letter; Comment Letter of David Hale (May 20, 2011); Comment 

Letter of Tom Irvin (May 18, 2011).

48 One commenter suggested that a “qualified client” include an individual with a bachelor’s degree 

in a finance-related major or a master’s degree in any area from an accredited U.S. university. 

See Comment Letter of Troy Clark (June 23, 2011). Although the suggested finance-related 

major requirement would help to determine whether an individual is financially knowledgeable, 

the suggested master’s degree requirement would not, and neither requirement would establish 

whether an investor has sufficient practical experience in making investment decisions or is 

capable of bearing the risks of loss associated with performance fee arrangements. 
13

excluded from the calculation of net worth merely because it is secured by the individual’s home.

As proposed, the amended rule would have excluded the value of a person’s primary 

residence and the amount of all debt secured by the property that is no greater than the property’s 

current market value.49 The proposed treatment of debt secured by the primary residence was 

the same as we proposed for the calculation of net worth for accredited investors in our rules 

under the Securities Act.50

In the Proposing Release, we requested comment on whether the amendments to the rule 

should contain a timing provision to prevent investors from inflating their net worth by 

borrowing against their homes, effectively converting their home equity — which is excluded 

from the net worth calculation under the amendments adopted today — into cash or other assets 

that would be included in the net worth calculation.

51

 49 Proposed rule 205-3(d)(1)(ii)(A). 

 In particular, we indicated that the 

amendments could provide that the net worth calculation must be made as of a date 30, 60, or 90 

50 See Accredited Investor Proposing Release, supra note 33, at text preceding n.28. One 

commenter recommended that all debt secured by the residence (not just debt up to the fair 

market value of the residence) be excluded from the net worth calculation. See G. Merkl 

Comment Letter. The commenter argued that excluding the debt secured by the residence up to 

the fair market value of the residence would require an investor to obtain a valuation of the 

residence from a real estate agent, which would be burdensome and costly. We note that the rule 

requires an estimate of the fair market value, but does not require a third party opinion on 

valuation for the primary residence. Furthermore, many online services provide residence 

valuations at no charge. In addition, if the amount of mortgage debt exceeds the value of the 

primary residence, excluding the entire debt would result in a higher net worth than under a 

conventional calculation that takes into account all assets and all liabilities. The commenter also 

acknowledged that, although he disagreed with the net worth test as a measure of financial 

sophistication, for purposes of calculating residence-related indebtedness a “close proximity 

between the time of taking on new debt and entering into the advisory contract could work.” Cf.

rule 205-3(d)(1)(ii)(A)(2) (requiring that all residence-related indebtedness incurred within 60 

days before the advisory contract is entered into, other than as a result of the acquisition of the 

primary residence, be subtracted from a client’s net worth for purposes of determining whether 

the client is a “qualified client”).

51 See Proposing Release, supra note 15, at Section II.B.2. 
14

days prior to entry into the investment advisory contract.52 This request for comment was 

similar to the one we made when we proposed amendments to the net worth standard in rules 

under the Securities Act, including Regulation D.

53

As in the recently adopted accredited investor rule amendments adjusting the net worth 

standard,

 

54 the rule amendments to the qualified client net worth standard include a specific 

provision addressing the treatment of incremental debt secured by the primary residence that is 

incurred in the 60 days before the advisory contract is entered into.55 Debt secured by the 

primary residence generally will not be included as a liability in the net worth calculation under 

the rule, except to the extent it exceeds the estimated value of the primary residence. Under the 

final rule amendments, however, any increase in the amount of debt secured by the primary 

residence in the 60 days before the advisory contract is entered into generally will be included as 

a liability, even if the estimated value of the primary residence exceeds the aggregate amount of 

debt secured by such primary residence.56

 52 Id. Two commenters stated that the net worth calculation should not be required to be made on a 

specified date prior to the day the advisory contract is entered into. See C. Barnard Comment 

Letter; G. Merkl Comment Letter. Another commenter stated that the net worth calculation 

should be required to be made on a specified date prior to the day the advisory contract is entered 

into to assist in protecting against refinancing transactions intended solely to inflate net worth. 

See NASAA Comment Letter. 

 Net worth will be calculated only once, at the time the 

53 See Accredited Investor Proposing Release, supra note 33, at Specific Request for Comment 

Number 7 in Section II.A. 

54 See Accredited Investor Adopting Release, supra note 33, at text following n.34.

55 See rule 205-3(d)(1)(ii)(A)(2).

56 The fair market value of the primary residence is determined as of the time the advisory contract 

is entered into, even if the investor has changed his or her primary residence during the 60-day 

period. The rule provides an exception to the 60-day look-back provision for increases in debt 

secured by a primary residence where the debt results from the acquisition of the primary 

residence. Without this exception, an individual who acquires a new primary residence in the 

60-day period before the advisory contract is entered into may have to include the full amount of 

the mortgage incurred in connection with the purchase of the primary residence as a liability, 

while excluding the full value of the primary residence, in a net worth calculation. The 60-day 

look-back provision is intended to address incremental debt secured against a primary residence 
15

advisory contract is entered into. The individual’s primary residence will be excluded from 

assets and any indebtedness secured by the primary residence, up to the estimated value of the 

primary residence at that time, will be excluded from liabilities, except if there is incremental 

debt secured by the primary residence incurred in the 60 days before the advisory contract is 

entered into. If any such incremental debt is incurred, net worth will be reduced by the amount 

of the incremental debt. In other words, the 60-day look-back provision requires investors to 

identify any increase in mortgage debt over the 60-day period prior to entering into an advisory 

contract and count that debt as a liability in calculating net worth.

This approach should significantly reduce the incentive for persons to induce potential 

clients to take on incremental debt secured against their homes to facilitate a near-term 

investment. We believe a 60-day look-back period is long enough to decrease the likelihood of 

circumvention of the standard by taking on new debt and waiting for the look-back period to 

expire. The 60-day period also is designed to be short enough to accommodate investors who 

may have increased their mortgage debt in the ordinary course at some point prior to entering 

into an advisory contract.

Another alternative to address the possibility of parties attempting to circumvent the 

standard would have been to provide that any debt secured by the primary residence that was 

incurred after the original purchase date of the primary residence would have been counted as a 

liability, whether or not the fair market value of the primary residence exceeded the value of the 

total amount of debt secured by the primary residence. We believe that such a standard would be 

overly restrictive and not provide for ordinary course changes to debt secured by a primary 

 

that is incurred for the purpose of circumventing the net worth standard of the rule. It is not 

intended to address debt secured by a primary residence that is incurred in connection with the 

acquisition of a primary residence within the 60-day period. 
16

residence, such as refinancing and drawings on home equity lines. We believe that the approach 

we are adopting here will protect investors by addressing circumstances in which they may have 

been induced to incur new debt secured by the primary residence for the purpose of inflating net 

worth under the rule, while still permitting ordinary course changes to debt secured by the 

primary residence. This approach is similar to the approach the Commission recently adopted

for accredited investor rule amendments adjusting the net worth standard, and it responds to 

commenters who urged the Commission to promote regulatory consistency in the treatment of 

primary residences in other similar contexts in order to promote fairness, facilitate enforcement, 

and provide clarity for both industry and regulators.

57

C. Transition Provisions

We proposed two new transition provisions that would allow an investment adviser and 

its clients to maintain existing performance fee arrangements that were permissible when the 

advisory contract was entered into, even if the performance fees would not be permissible under 

the contract if it were entered into at a later date. We are adopting the two transition rules 

substantially as proposed, which commenters supported.

58 At the suggestion of one commenter 

we also are adopting an additional transition provision to address certain transfers of interest, as 

discussed below.

59

Paragraphs (1) and (2) of rule 205-3(c) are designed so that restrictions on performance 

fees apply only to new contractual arrangements and do not apply to new investments by clients 

(including equity owners of “private investment companies”) who met the definition of 

 The amendments replace the current transition rules section of rule 205-3.

 57 See Accredited Investor Adopting Release, supra note 33, at text following n.46; see, e.g., Better 

Markets Comment Letter; NASAA Comment Letter.

58 Rule 205-3(c)(1); rule 205-3(c)(2). See, e.g., C. Barnard Comment Letter; Gunderson Dettmer 

Comment Letter; M. Huntsman Comment Letter; IAA Comment Letter; MFA Comment Letter. 

59 See rule 205-3(c)(3).
17

“qualified client” when they entered into the advisory contract, even if they subsequently do not 

meet the dollar amount thresholds of the rule.60

Rule 205-3(c)(1)

 This approach minimizes the disruption of 

existing contractual relationships that met applicable requirements under the rule at the time the 

parties entered into them.

61 provides that, if a registered investment adviser entered into a contract 

and satisfied the conditions of the rule that were in effect when the contract was entered into, the 

adviser will be considered to satisfy the conditions of the rule.

62

 60 A “private investment company” is a company that is excluded from the definition of an 

“investment company” under the Investment Company Act by reason of section 3(c)(1) of that 

Act. Rule 205-3(d)(3). Under rule 205-3(b), the equity owner of a private investment company, 

or of a registered investment company or business development company, is considered a client 

of the adviser for purposes of rule 205-3(a). We adopted this provision in 1998, and the provision 

was not affected by our subsequent rule amendments and related litigation concerning the 

registration of certain hedge fund advisers. See 1998 Adopting Release, supra note 

 If, however, a natural person or 

company that was not a party to the contract becomes a party, the conditions of the rule in effect 

at the time they become a party will apply to that person or company. This provision means, for 

example, that if an individual met the $1.5 million net worth test in effect before the effective 

date of our 2011 order and entered into an advisory contract with a registered investment adviser

before that date, the client could continue to maintain assets (and invest additional assets) with 

the adviser under that contract even though the net worth test was subsequently raised to $2 

million and he or she no longer met the new test. If, however, another person becomes a party to 

7; Goldstein 

v. Securities and Exchange Commission, 451 F.3d 873 (D.C. Cir. 2006).

61 Rule 205-3(c)(1), as amended, modifies the existing transition rule in rule 205-3(c)(1), which 

permits advisers and their clients that entered into a contract before August 20, 1998, and 

satisfied the eligibility criteria in effect on the date the contract was entered into, to maintain their 

existing performance fee arrangements. 

62 One commenter supported the provisions allowing advisers to continue to provide advisory 

services under performance fee arrangements that were permitted at the time the contract was 

entered into but stated that the rule should prohibit an adviser from charging performance fees to 

investors that are not qualified clients with respect to money committed after the effective date 

for the rule amendments. See G. Merkl Comment Letter. We believe such an approach would be 

unnecessarily disruptive to advisory relationships. 
18

that contract, the current net worth threshold will apply to the new party when he or she becomes 

a party to the contract.

63

Rule 205-3(c)(2) provides that, if a registered investment adviser previously was not 

required to register with the Commission pursuant to section 203 of the Act and did not register,

section 205(a)(1) of the Act will not apply to the contractual arrangements into which the 

registered adviser entered when it was not registered with the Commission.

64

 63 Rule 205-3(c)(1). Similarly, a person who invests in a private investment company advised by a 

registered investment adviser must satisfy the rule’s conditions when he or she becomes an 

investor in the company. See rule 205-3(b) (equity owner of a private investment company is 

considered a client of a registered investment adviser for purposes of rule 205-3(a)).

 This means, for 

example, that if an investment adviser to a private investment company with 50 individual 

investors was exempt from registration with the Commission in 2009, but then subsequently 

registered with the Commission because it was no longer exempt from registration or because it 

chose voluntarily to register, section 205(a)(1) will not apply to the contractual arrangements the 

adviser entered into before it registered, including the accounts of the 50 individual investors

with the private investment company and any additional investments they make in that company. 

If, however, any other individuals become new investors in the private investment company or if 

64 Section 205(a)(1) will apply, however, to contractual arrangements into which the adviser enters 

after it is required to register with the Commission. See rule 205-3(c)(2). The approach of 

subsection (c)(2) is similar to the transition provisions we adopted for the registration of 

investment advisers to private funds. See Registration Under the Advisers Act of Certain Hedge 

Fund Advisers, Investment Advisers Act Release No. 2333 (Dec. 2, 2004) [69 FR 72054 (Dec. 

10, 2004)]. We are adopting the subsection substantially as proposed, but have made minor 

changes to clarify that the transition provision applies only to contractual arrangements with 

advisers that were not required to register and did not register with the Commission. Our 

proposed subsection would have applied to contractual arrangements with any registered 

investment adviser that previously was “exempt” from the requirement to register with the 

Commission. The revised language clarifies that the transition provision applies to contractual 

arrangements with advisers when they were not required to register (even if they were not 

“exempt”), and does not apply to contractual arrangements entered into with advisers when they 

were registered (even if they were not required to register). Investment advisers that previously 

registered already are subject to section 205(a)(1) and rule 205-3, and therefore would not need 

the transition relief of rule 205-3(c)(2).
19

the original investors became investors in a different private investment company managed by 

the adviser after the adviser registers with the Commission, section 205(a)(1) will apply to the 

adviser’s relationship with the investors with regard to their new investments.

65

Finally, at the suggestion of one commenter, we have revised the third paragraph of rule 

205-3(c), to allow for limited transfers of interests from a qualified client to a person that was not 

a party to the contract and is not a qualified client at the time of the transfer.

66 The approach we 

are taking is similar to the approach we adopted in rule 3c-6 under the Investment Company Act. 

Rule 3c-6 provides that, in the case of a transfer of ownership interest in a private investment 

company by gift or bequest, or pursuant to an agreement relating to a legal separation or divorce, 

the beneficial owner of the interest will be considered to be the person who transferred the 

interest.

67

 65 One commenter recommended that we revise the rule to accommodate fund-of-funds purchases 

when the acquiring funds are private investment companies. See MFA Comment Letter. The 

commenter recommended that the rule “clarify” that an acquiring private investment company is 

able to pay performance fees to the adviser of an acquired private investment company even if 

some of the investors in the acquiring private investment company are not qualified clients at the 

time the investment is made in the acquired private investment company. We are not making the 

suggested revision to the final rule, because it would permit advisers to pool small client accounts 

to circumvent the eligibility standards of rule 205-3(d)(1) and would permit performance fee 

arrangements that currently are not permissible under rule 205-3(b). As we stated in 1998, rule 

205-3(b) specifies that the requirement to look through to each investor of a private investment 

company applies to each tier of a funds-of-funds structure. See 1998 Adopting Release, supra

note 

We believe that, when those types of transfers occur, the transferee does not make a 

separate investment decision to enter into an advisory contract with the adviser, but is the 

recipient, perhaps involuntarily, of the benefits of a pre-existing contractual relationship. 

Because of the circumstances of these transfers, we believe the transferee is not of the type that 

7, at Section II.C. (“Under [Rule 205-3(b)], each ‘tier’ of such entities must be examined in 

this manner. Thus, if a private investment company seeking to enter into a performance fee 

contract (first tier company) is owned by another private investment company (the second tier 

company), the look through provision applies to the second (and any other) level private 

investment company, and thus the adviser must look to the ultimate client to determine whether 

the arrangement satisfies the requirements of the rule.”). 

66 See Gunderson Dettmer Comment Letter.

67 See rule 3c-6(b) under the Investment Company Act [17 CFR 270.3c-6(b)].
20

needs the protections of the performance fee restrictions. We are therefore amending paragraph 

(3) of rule 205-3(c) to provide that, if an owner of an interest in a private investment company 

transfers an interest by gift or bequest, or pursuant to an agreement related to a legal separation 

or divorce, the transfer will not cause the transferee to “become a party” to the contract and will 

not cause section 205(a)(1) of the Act to apply to such transferee. Thus, transfers in these 

circumstances will not cause the transferee to have to meet the definition of a qualified client 

under rule 205-3.68

D. Effective Date

The rule amendments we are adopting today will be effective on May 22, 2012. In 

addition, in order to minimize the disruption of contractual relationships that met applicable 

requirements at the time the parties entered into them, the Commission will not object if advisers 

rely or relied upon the amended transition provisions of rule 205-3(c) before that date.69

III. COST-BENEFIT ANALYSIS

The Commission is sensitive to the costs and benefits imposed by its rules. In the 

Proposing Release, we analyzed the costs and benefits of the proposed rules and sought comment 

on all aspects of the cost-benefit analysis, including identification and assessment of any costs 

and benefits not discussed in the analysis. Only two commenters addressed the cost-benefit 

analysis.70

 68 A gift transfer, however, would need to be a bona fide gift and could not be used as a means to 

avoid the protections of section 205 of the Act, for example by transferring an interest in a private 

fund supposedly as a gift but in reality in exchange for payment.

 These commenters focused on the costs of the rule but did not provide any empirical 

69 As discussed above, some advisers may have entered into contractual relationships with clients 

who met the requirements of the rule at the time the parties entered into them, but who no longer 

meet the requirements of the amended rule. See supra Section II.C. For example, some 

registered investment advisers may have entered into advisory contracts with clients who met the 

$1.5 million net worth test when that test was applicable, but who would not meet the $2 million 

net worth test of the revised rule. 

70 See Comment Letter of Phillip Goldstein (May 24, 2011) (“P. Goldstein Comment Letter”); G. 
21

data.

As stated above, section 205(a)(1) of the Advisers Act generally restricts an investment 

adviser from entering into an advisory contract that provides for performance-based 

compensation.71 Congress restricted performance compensation arrangements to protect 

advisory clients from arrangements it believed might encourage advisers to take undue risks with 

client funds to increase advisory fees.

72

The Commission adopted rule 205-3 to exempt an investment adviser from the 

restrictions against charging a client performance fees where a client has a specified net worth or 

amount of assets under management. Section 418 of the Dodd-Frank Act amended section 

205(e) to require that the Commission adjust for inflation the dollar amount thresholds in rules 

promulgated under section 205(e) within one year of enactment of the Dodd-Frank Act and every 

five years thereafter. Generally an inflation adjustment is designed to help make the dollar 

amount thresholds in a provision continue to serve the same purposes over time. The 

amendments to rule 205-3 providing that the Commission will issue orders every five years 

 Congress subsequently authorized the Commission in 

section 205(e) of the Advisers Act to exempt any advisory contract from the performance fee 

restrictions if the contract is with persons that the Commission determines do not need the 

protections of those restrictions. Section 205(e) provides that the Commission may determine 

that persons do not need the protections of section 205(a)(1) on the basis of such factors as 

“financial sophistication, net worth, knowledge of and experience in financial matters, amount of 

assets under management, relationship with a registered investment adviser, and such other 

factors as the Commission determines are consistent with [section 205].”

 

Merkl Comment Letter. 

71 See supra Section I.

72 Id.
22

adjusting for inflation the dollar amount thresholds of the rule will codify the Dodd-Frank Act’s 

amendment of section 205(e) of the Advisers Act that requires the Commission to issue these 

orders.73

As proposed, we are amending rule 205-3 to exclude the value of a natural person’s 

primary residence and certain debt secured by the property from the determination of whether a 

person has sufficient net worth to be considered a “qualified client.” We are also modifying the 

transition provisions of the rule to take into account performance fee arrangements that were 

permissible when they were entered into. We analyze the costs and benefits of these provisions 

below.

 Also, pursuant to section 418’s requirements, the Commission issued an order in July

2011 revising the threshold of the assets-under-management test to $1 million, and of the net 

worth test to $2 million. The rule amendments will codify in the rule the changes already made 

to the dollar amount thresholds in the July 2011 Order, and will have no separate economic 

effect.

A. Benefits

The exclusion of the value of an individual’s primary residence will benefit certain 

investors. As discussed above, the Act’s restrictions on performance fee arrangements are 

designed to protect advisory clients from arrangements that encourage advisers to take undue 

risks with client funds to increase advisory fees, while rule 205-3 is designed to permit clients 

who are financially experienced and able to bear the risks of performance fee arrangements to 

enter into those arrangements.

74

 73 Section 418 of the Dodd-Frank Act. 

 We believe that the value of an individual’s primary residence 

may bear little or no relationship to that person’s financial experience or ability to bear the risks 

of performance fee arrangements. The value of the individual’s equity interest in the residence 

74 See supra notes 3 and 6.
23

reflects the prevailing market values at the time and can be a function of time in paying down the 

associated debt rather than a function of deliberate investment decision-making. In addition, 

because of the generally illiquid nature of residential assets, the value of an individual’s home 

equity may not help the investor to bear the risks of loss that are inherent in performance fee 

arrangements. Therefore, some of the clients who do not meet the net worth test of rule 205-3 

without including the value of their primary residence may not possess the financial experience 

or ability to bear the risks of performance fee arrangements. We estimate that the exclusion of 

the value of an individual’s primary residence will result in up to 1.3 million households that no 

longer qualify as “qualified clients” under the revised net worth test and therefore will now be 

protected by the performance fee restrictions in section 205 of the Advisers Act.75

As discussed above, the exclusion of the value of an individual’s primary residence from 

the calculation of net worth under the rule is similar to changes that Congress required the 

Commission to make to rules under the Securities Act, including Regulation D.76 As we noted 

when we recently adopted those rule amendments, section 413(a) of the Dodd-Frank Act 

required us to adjust the “accredited investor” net worth standards of certain rules under the 

Securities Act that apply to individuals, by “excluding the value of the primary residence.”77

 75 See infra notes 

 

The amendment to rule 205-3 under the Advisers Act we are adopting today, as some 

commenters argued, will promote regulatory consistency in the treatment of primary residences 

79-81. As discussed above, the amendments to rule 205-3 also exclude from the 

net worth test the amount of debt secured by the primary residence that is no greater than the 

property’s current market value. The exclusion of the debt might limit these benefits in some 

circumstances. For example, if a client meets the net worth test as a result of the exclusion of 

debt secured by the primary residence and the market value of the primary residence were to 

decline to the extent that the debt could not be satisfied by the sale of the residence, the client 

might be less able to bear the risks related to the performance fee contract and the investments 

that the adviser might make on behalf of the client. 

76 See supra note 33.

77 See Accredited Investor Adopting Release, supra note 33, at n.18 and accompanying text.
24

between this rule and other rules that the Commission has adopted that distinguish high net

worth individuals from less wealthy individuals.

78

The amendments to the rule’s transition provisions will allow advisory clients and 

investment advisers to avoid certain costs resulting from the statutory mandate to adjust for 

inflation and the Commission’s resultant July 2011 Order. The amendments allow an investment 

adviser and its clients to maintain existing performance fee arrangements that were permissible 

when the advisory contract was entered into, even if performance fees would not be permissible 

under the contract if it were entered into at a later date. These transition provisions are designed 

so that the restrictions on the charging of performance fees apply to new contractual 

arrangements and do not apply retroactively to existing contractual arrangements, including 

investments in private investment companies. Otherwise, advisory clients and investment 

advisers might have to terminate contractual arrangements into which they previously entered 

and enter into new arrangements, which could be costly to investors and advisers.

B. Costs

The amendments exclude the value of a person’s primary residence and generally exclude 

debt secured by the property (if no greater than the current market value of the residence) from 

the calculation of a person’s net worth.79

 78 See supra notes 42-

 Based on data from the Federal Reserve Board, 

approximately 5.5 million households have a net worth of more than $2 million including the 

equity in the primary residence (i.e., value minus debt secured by the property), and 

approximately 4.2 million households have a net worth of more than $2 million excluding the 

44 and 57 and accompanying text.

79 As discussed above, any increase in the amount of debt secured by the primary residence in the 

60 days before the securities are purchased will be included in the net worth calculation as a 

liability, regardless of the estimated value of the residence. See supra Section II.B; rule 

205-3(d)(1)(ii)(A)(2). 
25

equity in the primary residence.80 Therefore, approximately 1.3 million households will not 

meet a $2 million net worth test under the revised test, and will therefore not be considered 

“qualified clients,” when the value of the primary residence is excluded from the test.81 

Excluding the value of the primary residence (and debt secured by the property up to the current 

market value of the residence) means that 1.3 million households that would have met the net 

worth threshold if the value of the residence were included, as is currently permitted, will no 

longer be “qualified clients” under the revised net worth test and therefore will be unable to enter 

into performance fee contracts unless they meet another test of rule 205-3.82

For purposes of this cost-benefit analysis, Commission staff assumes that 25 percent of 

the 1.3 million households would have entered into new advisory contracts that contained 

performance fee arrangements after the compliance date of the amendments, and therefore 

approximately 325,000 clients will not meet the revised net worth test.83

 80 These figures are derived from the 2007 Federal Reserve Board Survey of Consumer Finances. 

These figures represent the net worth of households rather than individual persons who might be 

clients. More information regarding the survey may be obtained at 

 Commission staff 

http://www.federalreserve.gov/pubs/oss/oss2/scfindex.html. 

81 Although some of these 1.3 million households may be grandfathered by the transition provisions 

of the rule, we assume for the purposes of our analysis that none of these households will be 

grandfathered. This assumption may therefore result in an overestimation of the costs of the rule 

amendments.

82 This estimate, as described in the Proposing Release, was not premised on the notion that 

investors would borrow against the equity in their primary residence shortly before the 

calculation of net worth. See Proposing Release, supra note 15, at nn. 47-48 and accompanying 

text. The 60-day look-back provision in rule 205-3 that we are adopting today, because it reduces 

the incentives to incur debt secured by residences in order to boost net worth under the rule, 

strengthens the accuracy of our estimate. See supra notes 55-57 and accompanying text.

83 The assumption that 25% of these investors would have entered into new performance fee 

arrangements is based on data compiled in a 2008 report sponsored by the Commission. See 

ANGELA A. HUNG ET AL., INVESTOR AND INDUSTRY PERSPECTIVES ON INVESTMENT ADVISERS 

AND BROKER-DEALERS 130 (Table C.1) (2008) (available at 

http://www.sec.gov/news/press/2008/2008-1_randiabdreport.pdf). That report indicated that 20% 

of investment advisers charge performance fees. Id. at 105 (Table 6.13). Commission staff 

assumes the percentage of investment advisers charging performance fees reflects investor 

demand for these advisory arrangements. Although the report indicates that 20% of investment 
26

estimates that about 40 percent of those 325,000 potential clients (i.e., 130,000) will separately 

meet the “qualified client” definition under the assets-under-management test, and therefore will 

be able to enter into performance fee arrangements.84 The remaining 60 percent (195,000 

households) will have access only to those investment advisers (directly or through the private 

investment companies they manage) that charge advisory fees other than performance fees.85 

Some of these investors may be negatively affected by their inability to enter into 

performance-based compensation arrangements with investment advisers (which arrangements in 

some ways align the advisers’ interests with the clients’ interests). These investors also may

experience differences in their investment options and returns, changes in advisory service, and

the cost of being unable to enter into advisory contracts with their preferred advisers. For 

purposes of this cost-benefit analysis, Commission staff assumes that approximately 80 percent 

of the 195,000 households (i.e., 156,000 households) will enter into non-performance fee 

arrangements, and that the other 20 percent (i.e., 39,000 households) will decide not to invest 

their assets with an adviser.86

 

advisers charge performance fees, the use of a 25% assumption is intended to overestimate rather 

than underestimate costs, especially given the inherent uncertainty surrounding hypothetical 

events. It is also notable that an average of only 37% of investors indicated they would seek 

investment advisory services in the next five years. The estimate concerning 1.3 million 

households is derived from the 2007 Federal Reserve Board Survey of Consumer Finances. See 

supra note 

 Commission staff anticipates that the non-performance fee 

arrangements into which these clients will enter may contain management fees that yield 

80 and accompanying and following text. 

84 This estimate is based on data filed by registered investment advisers on Form ADV.

85 Commission staff estimates that less than one percent of registered investment advisers are 

compensated solely by performance fees, based on data from filings by registered investment 

advisers on Form ADV.

86 This assumption is based on the idea that a substantial majority of investment advisers that 

typically charge performance fees and that in the future would calculate a potential client’s net 

worth and determine that it does not meet the $2 million threshold, will offer alternate 

compensation arrangements in order to offer their services. As noted above, Commission staff 

estimates that less than one percent of registered advisers charge performance fees exclusively. 

See supra note 85. 
27

advisers approximately the same amount of fees that clients would have paid under performance 

fee arrangements. Under these non-performance fee arrangements, if the adviser’s performance 

is not positive or does not reach the level at which it would have accrued performance fees (i.e., 

the “hurdle rate” of return), a client might end up paying higher overall fees than if he had paid

performance fees.87

Commission staff estimates that the remaining 39,000 households that would have 

entered into advisory contracts, if the value of the client’s primary residence were not excluded 

from the calculation of a person’s net worth, will not enter into advisory contracts. Some of 

these households will likely seek other investment opportunities. Other households may forego 

professional investment management altogether because of the higher value they place on the 

alignment of advisers’ interests with their own interests associated with the use of performance 

fee arrangements. 

 

We recognize that the exclusion of the value of a person’s primary residence from the 

calculation of a person’s net worth will reduce the pool of potential qualified clients for advisers. 

This, in turn, might result in a reduction in the total fees collected by investment advisers. In 

order to replace those clients and lost revenue, some advisers may choose to market their 

services to more potential clients, which may result in increased marketing and administrative 

costs.

88

Although some commenters asserted that these amendments would harm small advisers 

 

 87 Performance fee arrangements typically include a “hurdle rate,” which is a minimum rate of 

return that must be exceeded before the performance fee can be charged. See, e.g., TAMAR 

FRANKEL, THE REGULATION OF MONEY MANAGERS § 12.03[F] (2d ed. Supp. 2009).

88 Although advisers that charge performance fees typically require investment minimums of 

$10,000 or more, one of the steps that advisers may take to market their services to a larger 

number of potential clients is to reduce their investment minimums. This may result in slightly 

higher administrative costs for investment advisers that choose to take such action. 
28

or less wealthy clients, commenters did not provide any quantitative data to support their 

statements.89

One commenter asserted that because liabilities in excess of the value of the primary 

residence would be included in the net worth calculation the Commission should include in its 

analysis the cost to clients of obtaining valuations from real estate agents.

 As discussed above, advisers may charge advisory fees other than performance 

fees in order to obtain revenue from clients who do not meet the definition of “qualified clients.” 

In addition, clients who no longer meet the net worth test as a result of the exclusion of their 

primary residence likely would have invested a smaller amount of assets than other clients who 

continue to meet the test. As a result, the revenue loss to investment advisers from the exclusion 

of these clients from the performance fee exemption may be mitigated. Moreover, as mentioned 

above, less wealthy clients can enter into non-performance based compensation arrangements 

and seek other investment opportunities. Therefore, for the reasons discussed above, we believe 

that the amendments are unlikely to impose a significant net cost on most advisers and clients. 

90 First, currently 

investors may include the value of their primary residence in the calculation of their net worth 

and, as such, those investors that choose to do so must be estimating the value of the primary 

residence in order to calculate their net worth. Second, the rule requires an estimate, but does not 

require a third party opinion on valuation either for the primary residence or for any other assets 

or liabilities. Third, as we noted previously, many online services provide residence valuations 

at no charge.91

Some commenters argued that excluding the value of an investor’s primary residence

from the net worth test of the rule at the same time as adjusting the rule’s dollar amount 

 

 89 See supra notes 38-39 and accompanying text.

90 See G. Merkl Comment Letter.

91 See supra note 50.
29

thresholds for inflation would cause too much change at one time.92 Although we attribute the 

costs of inflation-adjusting the dollar amount thresholds of the rule to the Dodd-Frank Act and 

the order we issued thereunder, we have considered the relative magnitude of each of these 

changes to the net worth standard in determining the significance of making these changes at the 

same time. Based on data from the Federal Reserve Board, approximately 7 million households 

have a net worth of more than $1.5 million (the previous net worth threshold, including primary 

residence), and approximately 5.5 million households have a net worth of more than $2 million 

(the revised net worth threshold we established by order in July 2011, including primary 

residence).

93 Therefore, inflation-adjusting the dollar amount threshold of the net worth test

from $1.5 to $2 million will have caused about 1.5 million households to no longer meet the net 

worth test of the rule. Therefore the numerical effect of the inflation adjustment of the net worth 

test’s dollar amount threshold (1.5 million households) is slightly greater than the exclusion of 

primary residence from the net worth test (1.3 million households).94 As discussed above, we 

are not making these two changes to the rule at the same time.95 We revised the dollar amount 

threshold of the net worth test for inflation in July 2011 (as required by statute), and the revision 

was effective in September 2011. Our current amendment of the net worth test to exclude the 

value of a primary residence, which will be effective in May 2012, will be effective 

approximately eight months after the previous change to the net worth test.96

 92 See supra note 

 We believe that 

what has turned out to be a two-step process (adjustment for inflation followed by exclusion of 

45 and accompanying text.

93 See supra note 80.

94 See supra text accompanying note 81.

95 See supra note 46 and preceding text.

96 Any further revisions of the dollar amount thresholds of rule 205-3 to adjust for inflation are not 

scheduled to occur until 2016. See rule 205-3(e).
30

primary residence), with roughly equal results on the numbers of “qualified clients,” will help to 

ameliorate the economic impact of the two rule revisions on investment advisers. In addition, we 

are concerned that delaying beyond 90 days the effective date of excluding primary residence 

from the net worth standard might encourage some advisers to focus their efforts on entering into 

performance fee arrangements with clients who will not meet the rule’s net worth standards after 

the effective date. 

The amendments to the rule’s transition provisions are not likely to impose any new costs 

on advisory clients or investment advisers. As discussed above, the amendments allow an 

investment adviser and its clients to maintain existing performance fee arrangements that were 

permissible when the advisory contract was entered into, even if performance fees would not be 

permissible under the contract if it were entered into at a later date. The amendments also allow 

for the transfer of an ownership interest in a private investment company by gift or bequest, or 

pursuant to an agreement relating to a legal separation or divorce to a party that is not a qualified 

client.97

We do not expect that adjustment of the dollar amount thresholds in rule 205-3, which 

codifies the adjustments that the Commission effected in its July 2011 order, will impose new 

costs on advisory clients or investment advisers. The adjustments will have no effect on existing 

contractual relationships that met applicable requirements under the rule at the time the parties 

entered into them, because those relationships may continue under the transition provisions of 

the rule. Although an investment adviser could be prohibited from charging performance fees to 

 97 Rule 205-3(c)(3). The rule provides that for purposes of paragraphs 205-3(c)(1) (transition rule 

for registered investment advisers) and 205-3(c)(2) (transition rule for registered investment 

advisers that were previously not registered) the transfer of an equity ownership interest in a 

private investment company by gift or bequest, or pursuant to an agreement related to a legal 

separation or divorce, will not cause the transferee to become a party to the contract and will not 

cause section 205(a)(1) of the Act to apply to such transferee. 
31

new clients to whom it could have charged performance fees if the advisory contract had been 

entered into before the adjustment of the dollar thresholds, we attribute this effect to the DoddFrank Act rather than to this rulemaking. One commenter stated that rather than addressing the 

contention that the adjustment to the dollar amount thresholds is unfair to small investors, the 

Commission “passed the buck” back to Congress.

98

Section 418 of the Dodd-Frank Act does not specify how the Commission should 

measure inflation in adjusting the dollar amount thresholds. We proposed, and are adopting, the 

PCE Index because it is widely used as a broad indicator of inflation in the economy and because 

the Commission has used the PCE Index in other contexts. It is possible that the use of the PCE 

Index to measure inflation might result in a larger or smaller dollar amount for the two thresholds 

than the use of a different index, but the rounding required by the Dodd-Frank Act (to the nearest 

$100,000) likely negates any difference between indexes.

 The Commission, however, is required to 

adjust the dollar amount thresholds for the effects of inflation. Exempting less wealthy investors 

from the limits would be contrary to the purpose of the dollar amount thresholds, which is to 

limit the availability of the exemption to clients who are financially experienced and able to bear 

the risks of performance fee arrangements.

IV. PAPERWORK REDUCTION ACT 

The amendments to rule 205-3 under the Investment Advisers Act do not contain any 

“collection of information” requirements as defined by the Paperwork Reduction Act of 1995, as 

amended (“PRA”).99

 98 See P. Goldstein Comment Letter.

 Accordingly, the PRA is not applicable. We received no comments on any 

PRA issues.

99 44 U.S.C. 3501 – 3520.
32

V. REGULATORY FLEXIBILITY ACT CERTIFICATION

The Commission certified in the Proposing Release, pursuant to section 605(b) of the 

Regulatory Flexibility Act of 1980 (“RFA”),

100 that the proposed rule amendments would not, if 

adopted, have a significant impact on a substantial number of small entities.101 As we explained 

in the Proposing Release, under Commission rules, for the purposes of the Advisers Act and the 

RFA, an investment adviser generally is a small entity if it: (i) has assets under management 

having a total value of less than $25 million; (ii) did not have total assets of $5 million or more 

on the last day of its most recent fiscal year; and (iii) does not control, is not controlled by, and is 

not under common control with another investment adviser that has assets under management of 

$25 million or more, or any person (other than a natural person) that had total assets of $5 

million or more on the last day of its most recent fiscal year (“small adviser”).

102

Based on information in filings submitted to the Commission, 617 of the approximately 

11,888 investment advisers registered with the Commission are small entities. Only 

approximately 20 percent of the 617 registered investment advisers that are small entities (about 

122 advisers) charge any of their clients performance fees. In addition, 24 of the 122 advisers 

required at the time of the Proposing Release an initial investment from their clients that would 

meet the then current assets-under-management threshold ($750,000), which advisory contracts 

will be grandfathered into the exemption provided by rule 205-3 under the amendments. 

Therefore, if these advisers in the future raise those minimum investment levels to the revised 

level that we issued by order ($1 million), those advisers could charge their clients performance 

fees because the clients would meet the assets-under-management test, even if they would not 

 100 5 U.S.C. 605(b).

101 See Proposing Release, supra note 15, at Section VI. 

102 Rule 0-7(a).
33

meet the revised net worth test that excludes the value of the client’s primary residence. For 

these reasons, the Commission believes that the amendments to rule 205-3 will not have a 

significant economic impact on a substantial number of small entities. The Commission 

requested written comments regarding the certification. One commenter stated that the 

Proposing Release includes “suspicious” quantified data to support the claim as to how few 

advisers will be affected by the required review every five years.

103 The commenter provided no 

further detail about why the quantified data was suspicious, or any alternative empirical data, and 

did not address the number of small advisers that would be affected.104

VI. STATUTORY AUTHORITY

The Commission is adopting amendments to rule 205-3 pursuant to the authority set forth 

in section 205(e) of the Investment Advisers Act of 1940 [15 U.S.C. 80b-5(e)].

List of Subjects in 17 CFR Part 275

Reporting and recordkeeping requirements, Securities.

TEXT OF RULES

For the reasons set out in the preamble, Title 17, Chapter II of the Code of Federal 

Regulations is amended as follows: 

PART 275 - RULES AND REGULATIONS, INVESTMENT ADVISERS ACT OF 1940

1. The general authority citation for Part 275 continues to read as follows:

AUTHORITY: 15 U.S.C. 80b-2(a)(11)(G), 80b-2(a)(11)(H), 80b-2(a)(17), 80b-3, 

80b-4, 80b-4a, 80b-6(4), 80b-6a, 80b-11, unless otherwise noted.

* * * * *

2. Section 275.205-3 is amended by:

 103 See Comment Letter of David Flatray (May 29, 2011). 

104 Id.
34

a. Revising paragraph (c);

b. Revising paragraphs (d)(1)(i) and (ii); and

c. Adding paragraph (e).

The revisions and addition read as follows.

§ 275.205-3 Exemption from the compensation prohibition of section 205(a)(1) for 

investment advisers.

* * * * *

(c) Transition rules. (1) Registered investment advisers. If a registered investment 

adviser entered into a contract and satisfied the conditions of this section that were in effect when 

the contract was entered into, the adviser will be considered to satisfy the conditions of this 

section; Provided, however, that if a natural person or company who was not a party to the 

contract becomes a party (including an equity owner of a private investment company advised by 

the adviser), the conditions of this section in effect at that time will apply with regard to that 

person or company.

(2) Registered investment advisers that were previously not registered. If an investment 

adviser was not required to register with the Commission pursuant to section 203 of the Act (15 

U.S.C. 80b-3) and was not registered, section 205(a)(1) of the Act will not apply to an advisory 

contract entered into when the adviser was not required to register and was not registered, or to 

an account of an equity owner of a private investment company advised by the adviser if the 

account was established when the adviser was not required to register and was not registered; 

Provided, however, that section 205(a)(1) of the Act will apply with regard to a natural person or 

company who was not a party to the contract and becomes a party (including an equity owner of 

a private investment company advised by the adviser) when the adviser is required to register.

(3) Certain transfers of interests. Solely for purposes of paragraphs (c)(1) and (c)(2) of 
35

this section, a transfer of an equity ownership interest in a private investment company by gift or 

bequest, or pursuant to an agreement related to a legal separation or divorce, will not cause the 

transferee to “become a party” to the contract and will not cause section 205(a)(1) of the Act to 

apply to such transferee.

(d) * * *

(1) * * * 

(i) A natural person who, or a company that, immediately after entering into the contract 

has at least $1,000,000 under the management of the investment adviser;

(ii) A natural person who, or a company that, the investment adviser entering into the 

contract (and any person acting on his behalf) reasonably believes, immediately prior to entering 

into the contract, either:

(A) Has a net worth (together, in the case of a natural person, with assets held jointly 

with a spouse) of more than $2,000,000. For purposes of calculating a natural person’s net 

worth:

(1) The person’s primary residence must not be included as an asset; 

(2) Indebtedness secured by the person’s primary residence, up to the estimated fair 

market value of the primary residence at the time the investment advisory contract is entered into

may not be included as a liability (except that if the amount of such indebtedness outstanding at 

the time of calculation exceeds the amount outstanding 60 days before such time, other than as a 

result of the acquisition of the primary residence, the amount of such excess must be included as 

a liability); and 

(3) Indebtedness that is secured by the person’s primary residence in excess of the 

estimated fair market value of the residence must be included as a liability; or
36

(B) Is a qualified purchaser as defined in section 2(a)(51)(A) of the Investment Company 

Act of 1940 (15 U.S.C. 80a-2(a)(51)(A)) at the time the contract is entered into; or

* * * * *

(e) Inflation adjustments. Pursuant to section 205(e) of the Act, the dollar amounts 

specified in paragraphs (d)(1)(i) and (d)(1)(ii)(A) of this section shall be adjusted by order of the 

Commission, on or about May 1, 2016 and issued approximately every five years thereafter. The 

adjusted dollar amounts established in such orders shall be computed by:

(1) Dividing the year-end value of the Personal Consumption Expenditures Chain-Type 

Price Index (or any successor index thereto), as published by the United States Department of 

Commerce, for the calendar year preceding the calendar year in which the order is being issued, 

by the year-end value of such index (or successor) for the calendar year 1997;

(2) For the dollar amount in paragraph (d)(1)(i) of this section, multiplying $750,000 

times the quotient obtained in paragraph (e)(1) of this section and rounding the product to the 

nearest multiple of $100,000; and
37

(3) For the dollar amount in paragraph (d)(1)(ii)(A) of this section, multiplying 

$1,500,000 times the quotient obtained in paragraph (e)(1) of this section and rounding the 

product to the nearest multiple of $100,000.

By the Commission.

Elizabeth M. Murphy

Secretary

Dated: February 15, 2012