July 20, 2009
Ms. Elizabeth M. Murphy Secretary
United States Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549-1090
RE: Proposed Amendments to Rule 206(4)-2
Release No. IA-2876
File No. S7-09-09
Dear Ms. Murphy:
Willow Creek Financial Services, Inc. appreciates the opportunity to express its views in response to the Securities and Exchange Commission’s request for comments on the proposed amendments to Rule 206(4)-2.
As an investment adviser registered with the SEC we would be considered to have custody solely because we have the authority to deduct advisory fees from our clients’ accounts, all of which are maintained by an independent, qualified custodian. We strongly believe that this portion of the proposed Rule, which would require an annual surprise audit, is not warranted.
Our custodian, as required by the current rule, delivers account statements directly to clients on a monthly basis (more than the at least quarterly requirement). Statements identify the amount of funds and securities at the end of the period as well as all account activity. Our clients also agree, in writing, that our advisory fees will be deducted directly from their advisory accounts. The surprise examination requirement, according to the Commission, would cost an average of $8,100 annually. This expense seems particularly difficult to justify when the surprise examination is directed primarily at verifying client funds and securities which is unnecessary given there is an independent qualified custodian. It will also do nothing to address the Commission's central concern: whether we have improperly withdrawn amounts in excess of our stated fees.
If the proposed amendments are made we would be forced to eliminate the direct debit of fees and would instead require clients to pay our advisory fees directly. This change in billing practices would confuse and inconvenience our clients as most of them have indicated they greatly prefer the account debit method.
Given that the existing safeguards in place are adequate for firms such as ours, and considering the adverse effects of a mandatory surprise audit on Willow Creek as well as our clients, we respectfully request that the SEC leave current Rule 206(4)-2 intact and unchanged with respect to advisors who have custody solely because they have the authority to deduct advisory fees from client accounts.
Heather Cleland, CFP ® Chief Compliance Officer
Heather Cleland, CFP® Willow Creek Financial Services, Inc.