Treas. Reg. § 54.4975-9

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Definition of “fiduciary”.

CFR 2016 annual edition (revised as of 2016-04-01) · superseded Dec 30, 2016 · last amended by T.D. 7386, 40 FR 50841, Oct. 31, 1975

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(a) -(b) [Reserved]

(1) A person shall be deemed to be rendering “investment advice” to an employee benefit plan, within the meaning of section 4975(e)(3)(B) and this paragraph, only if:

(i) Such person renders advice to the plan as to the value of securities or other property, or makes recommendations as to the advisability of investing in, purchasing, or selling securities or other property; and

(ii) Such person either directly or indirectly (e.g., through or together with any affiliate):

(A) Has discretionary authority or control, whether or not pursuant to agreement, arrangement or understanding, with respect to purchasing or selling securities or other property for the plan; or

(B) Renders any advice described in paragraph (c)(1)(i) of this section on a regular basis to the plan pursuant to a mutual agreement, arrangement or understanding, written or otherwise, between such person and the plan or a fiduciary with respect to the plan, that such services will serve as a primary basis for investment decisions with respect to plan assets, and that such person will render individualized investment advice to the plan based on the particular needs of the plan regarding such matters as, among other things, investment policies or stategy, overall portfolio composition, or diversification of plan investments.

(2) A person who is a fiduciary with respect to a plan by reason of rendering investment advice (as defined in paragraph (c)(1) of this section) for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or having any authority or responsibility to do so, shall not be deemed to be a fiduciary regarding any assets of the plan with respect to which such person does not have any discretionary authority, discretionary control or discretionary responsibility, does not exercise any authority or control, does not render investment advice (as defined in paragraph (c)(1) of this section) for a fee or other compensation, and does not have any authority or responsibility to render such investment advice, provided that nothing in this paragraph shall be deemed to:

(i) Exempt such person from the provisions of section 405(a) of the Employee Retirement Income Security Act of 1974 concerning liability for fiduciary breaches by other fiduciaries with respect to any assets of the plan; or

(ii) Exclude such person from the definition of the term disqualified person (as set forth in section 4975(e)(2)) with respect to any assets of the plan.

(d) Execution of securities transactions.

(1) A person who is a broker or dealer registered under the Securities Exchange Act of 1934, a reporting dealer who makes primary markets in securities of the United States Government or of an agency of the United States Government and reports daily to the Federal Reserve Bank of New York its positions with respect to such securities and borrowings thereon, or a bank supervised by the United States or a State, shall not be deemed to be a fiduciary, within the meaning of section 4975(e)(3), with respect to an employee benefit plan solely because such person executes transactions for the purchase or sale of securities on behalf of such plan in the ordinary course of its business as a broker, dealer, or bank, pursuant to instructions of a fiduciary with respect to such plan, if:

(i) Neither the fiduciary nor any affiliate of such fiduciary is such broker, dealer, or bank; and

(ii) The instructions specify (A) the security to be purchased or sold, (B) a price range within which such security is to be purchased or sold, or, if such security is issued by an open-end investment company registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1, et seq.), a price which is determined in accordance with Rule 22c-1 under the Investment Company Act of 1940 (17 CFR 270.22c-1), (C) a time span during which such security may be purchased or sold (not to exceed five business days), and (D) the minimum or maximum quantity of such security which may be purchased or sold within such price range, or, in the case of security issued by an open-end investment company registered under the Investment Company Act of 1940, the minimum or maximum quantity of such security which may be purchased or sold, or the value of such security in dollar amount which may be purchased or sold, at the price referred to in paragraph (d)(1)(ii)(B) of this section.

(2) A person who is a broker-dealer, reporting dealer, or bank which is a fiduciary with respect to an employee benefit plan solely by reason of the possession or exercise of discretionary authority or discretionary control in the management of the plan or the management or disposition of plan assets in connection with the execution of a transaction or transactions for the purchase or sale of securities on behalf of such plan which fails to comply with the provisions of paragraph (d)(1) of this section, shall not be deemed to be a fiduciary regarding any assets of the plan with respect to which such broker-dealer, reporting dealer or bank does not have any discretionary authority, discretionary control or discretionary responsibility, does not exercise any authority or control, does not render investment advice (as defined in paragraph (c)(1) of this section) for a fee or other compensation, and does not have any authority or responsibility to render such investment advice, provided that nothing in this paragraph shall be deemed to:

(i) Exempt such broker-dealer, reporting dealer, or bank from the provisions of section 405(a) of the Employee Retirement Income Security Act of 1974 concerning liability for fiduciary breaches by other fiduciaries with respect to any assets of the plan; or

(ii) Exclude such broker-dealer, reporting dealer, or bank from the definition of the term disqualified person (as set forth in section 4975(e)(2)) with respect to any assets of the plan.

(e) Affiliate and control.

(1) For purposes of paragraphs (c) and (d) of this section, an “affiliate” of a person shall include:

(i) Any person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such person;

(ii) Any officer, director, partner, employee or relative (as defined in section 4975(e)(6)) of such person; and

(iii) Any corporation or partnership of which such person is an officer, director or partner.

(2) For purposes of this paragraph, the term control means the power to exercise a controlling influence over the management or policies of a person other than an individual.

Source credit, amendments & notes

[T.D. 7386, 40 FR 50841, Oct. 31, 1975]

Treas. Reg. § 54.4975-9 — Definition of “fiduciary”. · CFR 2016 annual edition (revised as of 2016-04-01) · https://pensionresource.website/EAMain?content=EAMain.Law&id=cfr26-54.4975-9&asof=2009-01-05 · printed Oct 16, 2026

Implements

I.R.C. § 4975 Tax on prohibited transactions

Cited by (code & regs)

Treas. Reg. § 54.4975-6 Statutory exemptions for office space or services…

Guidance addressing this section

No documents are primarily about this section.

Also cited in 24 other documents

Department of Labor (EBSA)

Technical Releases

TR 2026-01 Apr 1, 2026 — Technical Release 2026-01 (c)(1)

Final Rules

91 FR 13503 Mar 20, 2026 — Retirement Security Rule: Definition of an Investment Advice Fiduciary: Notice of Court Vacatur (c)(1)(i)
89 FR 32346 Apr 25, 2024 — Amendment to Prohibited Transaction Exemptions 75-1, 77-4, 80-83, 83-1, and 86-128
89 FR 32122 Apr 25, 2024 — Retirement Security Rule: Definition of an Investment Advice Fiduciary (c)(1)
85 FR 82798 Dec 18, 2020 — Prohibited Transaction Exemption 2020-02, Improving Investment Advice for Workers & Retirees (c)(c)(1)(i)
81 FR 21208 Apr 8, 2016 — Amendments to Class Exemptions 75-1, 77-4, 80-83 and 83-1 (c)
81 FR 21181 Apr 8, 2016 — Amendment to and Partial Revocation of Prohibited Transaction Exemption (PTE) 86-128 for Securities Transactions Involving Employee Benefit Plans and Broker-De… (c)(e)
81 FR 21147 Apr 8, 2016 — Amendment to and Partial Revocation of Prohibited Transaction Exemption (PTE) 84-24 for Certain Transactions Involving Insurance Agents and Brokers, Pension Co… (c)
81 FR 21139 Apr 8, 2016 — Amendment to Prohibited Transaction Exemption (PTE) 75-1, Part V, Exemptions From Prohibitions Respecting Certain Classes of Transactions Involving Employee Be… (c)
81 FR 21089 Apr 8, 2016 — Class Exemption for Principal Transactions in Certain Assets Between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs (c)
81 FR 21002 Apr 8, 2016 — Best Interest Contract Exemption (c)
81 FR 20946 Apr 8, 2016 — Definition of the Term “Fiduciary”; Conflict of Interest Rule-Retirement Investment Advice (c)
76 FR 66136 Oct 25, 2011 — Investment Advice-Participants and Beneficiaries (c)

Proposed Rules

88 FR 76032Proposed Nov 3, 2023 — Proposed Amendment to Prohibited Transaction Exemptions 75-1, 77-4, 80-83, 83-1, and 86-128 Comments due Jan 2, 2024 (e)
88 FR 75979Proposed Nov 3, 2023 — Proposed Amendment to Prohibited Transaction Exemption 2020-02 Comments due Jan 2, 2024 (c)(1)(i)
88 FR 75890Proposed Nov 3, 2023 — Retirement Security Rule: Definition of an Investment Advice Fiduciary Comments due Jan 2, 2024 (c)(1)(c)(1)(ii)(A)
85 FR 40834Proposed Jul 7, 2020 — Improving Investment Advice for Workers & Retirees Comments due Aug 6, 2020 (c)(c)(1)(i)
80 FR 22035Proposed Apr 20, 2015 — Proposed Amendments to Class Exemptions 75-1, 77-4, 80-83 and 83-1 Comments due Jul 6, 2015 (c)
80 FR 22021Proposed Apr 20, 2015 — Proposed Amendment to and Proposed Partial Revocation of Prohibited Transaction Exemption (PTE) 86-128 for Securities Transactions Involving Employee Benefit P… Comments due Jul 6, 2015 (e)
80 FR 22004Proposed Apr 20, 2015 — Proposed Amendment to Prohibited Transaction Exemption (PTE) 75-1, Part V, Exemptions From Prohibitions Respecting Certain Classes of Transactions Involving Em… Comments due Jul 6, 2015 (c)(e)
80 FR 21989Proposed Apr 20, 2015 — Proposed Class Exemption for Principal Transactions in Certain Debt Securities between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs Comments due Jul 6, 2015 (c)
80 FR 21960Proposed Apr 20, 2015 — Proposed Best Interest Contract Exemption Comments due Jul 6, 2015 (c)
80 FR 21928Proposed Apr 20, 2015 — Definition of the Term “Fiduciary”; Conflict of Interest Rule-Retirement Investment Advice Comments due Jul 6, 2015 (c)
75 FR 65263Proposed Oct 22, 2010 — Definition of the Term “Fiduciary” Comments due Jan 20, 2011 (c)

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Each row is a version of the text as published by the official source. Code dates are the edition/release point that first reflected the change; regulation dates are eCFR effective dates. The library checks the official sources automatically, so new versions appear here on their own; “run” opens the sync that recorded a version.

Effective	Through	Source	Amended by
Apr 1, 1997	Dec 29, 2016	CFR 2016 annual edition (revised as of 2016-04-01) run 127	T.D. 7386, 40 FR 50841, Oct. 31, 1975	View
Dec 30, 2016	current	eCFR editorial change effective 2016-12-30 run 2	T.D. 7386, 40 FR 50841, Oct. 31, 1975	View · Redline (sign in)

Provision-level history (blame)