The state of Tennessee recently announced its intention to administratively suspend the registrations of broker-dealers, agents and investment advisers doing business in Tennessee who have not paid the Tennessee Professional Privilege Tax ("Privilege Tax"), an event which could have significant collateral impact on their business.
The Privilege Tax is a $400/year tax assessed on the privilege of holding a Tennessee professional license, and applies to both residents and non-residents.1The tax is due on June 1 of each year, and the Tennessee Department of Revenue recently compiled a list of approximately 2,200 broker-dealers, agents and investment advisers who are more than 90 days delinquent on their payments and provided it to the Tennessee Securities Division ("the Division"). The Division has since announced that in January 2016 it will administratively suspend registrations for those who remain delinquent by holding their annual renewal applications in abeyance.2 Those delinquent on the Privilege Tax will be unregistered until the agent or firm cures the delinquency and provides the Division a tax clearance issued by the Department of Revenue.3
Because tax payment delinquency notices are typically mailed to an agent's home address, broker-dealers may not know of an affiliated agent's delinquent status until after the agent's license is suspended, the implications of which can be serious. Absent an exemption, the Tennessee Securities Act (the "Act") makes it unlawful for broker-dealers, agents and investment advisers to transact securities or advisory business, as applicable, from or in Tennessee without being registered, or for broker-dealers to employ an agent to transact securities business if the agent is not registered as an agent of the broker-dealer in the state.4 Violations of the Act can subject agents and firms to regulatory and/or criminal action.5 Transacting business while unregistered could also subject broker-dealers, agents and investment advisers to civil liability, providing customers with rescission rights.6
Broker-dealers and investment advisers doing business in Tennessee should prioritize this important registration issue. Prior to January 2016, broker-dealers should confirm that each of their agents registered in Tennessee has paid the Privilege Tax. The broker-dealer may want to contact the Division for assistance with identifying its agents who may be delinquent in paying the Privilege Tax, so it can take corrective action before registrations are suspended. Further, broker-dealers should review CRD renewal reports in early January 2016 to determine if any renewal applications have been placed into pending status. Broker-dealers should also consider implementing or revising their written supervisory procedures and systems to address the Privilege Tax, to avoid potential regulatory sanctions for failure to establish and enforce procedures to monitor the registration status of agents. This could include taking control of the payments for all Tennessee-registered agents and/or requiring agents to certify prior to the end of each calendar year that they have satisfied their Privilege Tax obligations.
1 See Tenn. Code Ann. §§ 67-4-1701, et seq. Note that investment adviser representatives are not subject to the Privilege Tax. More information on the Privilege Tax can be found at: http://www.tn.gov/revenue/topic/professional-privilege-tax and https://www.tn.gov/commerce/section/securities.
2 Bass, Berry & Sims' Broker-Dealer & Financial Products Practice Group recently hosted a program with the Division, during which Division leaders spoke on initiatives, trends and hot topics. During the program, the Division announced that the policy of suspending registrations would begin in January 2016. This is pursuant to Tenn. Code Ann. § 67-4-1704(d), which states that the Division "shall not process and shall hold in abeyance the application for renewal of the license or registration of any taxpayer appearing on the [delinquency] list."
3 The reinstatement of a suspended license will not be immediate. Payments take two days to post to the agent's Privilege Tax account, and only after the payment posts and upon request will the Department of Revenue issue a letter of clearance. Even if the broker-dealer discovers an agent's delinquency in early January through an annual review of registration status and the delinquent tax is cured, the agent may remain unregistered for a number of business days before the registration renewal is effective.
4 See Tenn. Code Ann. § 48-1-109(a), (b), (c)(1) (making it unlawful for any person to transact business as a broker-dealer, agent or investment adviser or for broker-dealers to employ an agent to transact business as an agent, unless such person is registered under the Act or is exempted from registration); Tenn. Comp. R. & Regs. § 0780-04-03-.01(1)(f) ("A registered broker-dealer shall not conduct business in this state through an agent unless and until the broker-dealer has registered that agent in this state.").
5 See Tenn. Code Ann. § 48-1-112(a)(2)(B)&(J) ("The commissioner may by order deny, suspend, or revoke any registration [if the registrant has] willfully violated or willfully failed to comply with any provision of this part or a predecessor chapter or any rule or order under this part" or "failed reasonably to supervise such person's agents if the person is a broker-dealer."); Tenn. Code Ann. § 48-1-123(a) ("Any person who willfully violates any provision of this part or who willfully violates any rule or order under this part commits a Class D felony.").
6 See Tenn. Code Ann. § 48-1-122(a)(1) (providing that any person selling a security in violation of the section requiring registration "shall be liable to the person purchasing the security from the seller to recover the consideration paid for the security . . .").