There is a general belief that advisers acting as fiduciaries to a 401(k) plan would violate ERISA if they advise participants on IRA rollover opportunities and wind up managing those rolled over funds. That opinion is not surprising, according to ERISA attorney Marcia S. Wagner of the Wagner Law Group. But it is not necessarily correct.
Speaking this week at the 2013 NAPA/ASPPA 401(k) summit, Wagner acknowledged that the DOL’s advisory opinion 2005-23A that addresses this subject, superficially interpreted, would give the impression that under no circumstances could an adviser do so without triggering a prohibited transaction that could disqualify the plan — a risk that no adviser would want to take. The DOL is extremely attentive to any action that would amount to self-dealing, she noted.
