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4000 - Advisory Opinions
Would Certain Sweep Accounts Violate the Federal Deposit Insurance
Act
April 4, 2000
FDIC--00--2
Robert C. Fick, counsel
This letter responds to your recent inquiries regarding the Bank's
proposal to establish a certain sweep account for its commercial
customers and its higher-net-worth, individual customers. Specifically,
you have asked that the FDIC confirm your conclusion that the sweep
account that the Bank proposes to offer such customers would not
violate the Federal Deposit Insurance Act (the "FDIA") and the
regulations promulgated pursuant thereto regarding the payment of
interest on demand deposits.
The Bank currently offers its commercial customers a variety of
products and services, including checking accounts. The Bank would now
like to offer its commercial customers the ability to earn some return
on idle cash by means of a sweep account. However, you
{{8-31-00 p.4984.45}}note that
12 C.F.R. § 329.2
prohibits state nonmember banks from paying interest on commercial
checking accounts.
The proposed sweep account would consist of a checking account that
is linked with an investment account at the Asset Management Fund's
Money Market Portfolio (the "Money Market Fund"). The Bank does
not own or operate the Money Market Fund; it is distributed,
underwritten, and advised by unaffiliated, third parties. The sweep
account will operate such that when the balance in the checking account
exceeds a specified amount, the excess funds will be electronically
transferred to the investment account. When the balance in the checking
account falls below the specified amount, or upon the customer's
request, funds will be transferred from the investment account to the
checking account. You have stated that the funds in the investment
account will be invested only in high quality, short-term assets, such
as U.S. government or agency issued or guaranteed obligations,
certificates of deposit, bankers' acceptances, and repurchase
agreements. As compensation for certain ministerial services, the Bank
will receive a fee of .35% of the average aggregate daily net assets
of its customers invested in the Money Market Fund.
The primary issue raised by the proposed sweep account is whether
the investment account, or the sweep account arrangement as a whole,
violates the prohibition on the payment of interest on demand deposits.
We believe that for the reasons discussed below neither the investment
account, nor the sweep account arrangement as a whole, violates the
prohibition on the payment of interest on demand deposits.
First, we do not believe that funds in the investment account
constitute a demand deposit. 12 C.F.R. § 329.2 provides that
"[n]o bank shall, directly or indirectly, by any device
whatsoever, pay interest on any demand deposit." A "demand
deposit" is, of course, a particular type of "deposit."
See 12 C.F.R.
§ 329.(1)(b). The term "deposit" is defined in section
3(l) of the FDIA, 12 U.S.C.
§ 1813(l), to mean any of five categories of
obligations. Of those five categories, only the first and third appear
to be relevant to the proposed sweep account. As an initial matter, in
order to be a "deposit" under those two categories, the item must
be money or the unpaid balance of money or its equivalent "received
or held by a bank or a savings association." See 12
U.S.C. § 1813(l)(1) and (3).
Under the proposed sweep account any funds in the checking account
at the Bank obviously would have been received and are held by a bank
and, therefore, constitute "deposits." However, any funds in the
investment account would have been received and are held by the Money
Market Fund. Since a mutual fund is not a bank, the funds in the
investment account are not deposits under section 3(l) of
the FDIA and, therefore, cannot be "demand deposits" for purposes
of 12 C.F.R. Part 329.
Second, we do not believe that under the proposed sweep account the
Bank is paying interest. Part 329 defines "interest" generally as
"any payment to or for the account of any depositor as compensation
for the use of funds constituting a deposit." See
12 C.F.R. § 329.1(c). To
the extent that funds in the investment account earn a net positive
return, those earnings are credited to the customer. Those earnings
could not be "compensation for the use of funds constituting a
deposit" because the Bank does not have the use of the funds while
they are in the investment account. Therefore, the earnings could not
be compensation for the Bank's use of the funds. Furthermore, it is
the Money Market Fund, and not the Bank, that is paying those earnings
to the customer. The bank is not paying any of its funds to the
customer as compensation or otherwise; rather it is simply transferring
to the customer's checking account earnings paid by the Money Market
Fund. In summary, we do not believe that the funds in the investment
account would constitute "deposits" as that term is defined in
the FDIA, nor do we believe that the Bank would be paying interest to
the customer. Consequently, the sweep account proposed by the Bank does
not violate the prohibition on the payment of interest on demand
deposits set forth in 12 C.F.R.
§ 329.2. 1
{{8-31-00 p.4984.46}}
Finally, we understand that the Bank will disclose to its depositors
who utilize the proposed sweep account that funds in the investment
account are not insured by the FDIC and, further, will make such other
disclosures as may be required by the Interagency Statement on Retail
Sales of Nondeposit Investment Products, dated February 15, 1994,
and/or other applicable federal or state law.
The opinions expressed herein represent the views of the Legal
Division staff and, like all staff opinions, are not binding upon the
FDIC or its Board of Directors. In addition, the opinions expressed
herein are based upon the facts and circumstances presented in this
case. Any change in the facts or circumstances may result in different
conclusions.
If you have any questions regarding this matter, please contact me
at your convenience.
1 FDIC Advisory Opinion
#92--27 concluded that a particular sweep account violated the
prohibition on the payment of interest on demand deposits; however,
that case is distinguishable from the instant case in a number of
circumstances. In that earlier case both the demand deposit account and
the investment account were accounts maintained at the bank. That fact
coupled with the automatic transferability of funds between the
accounts led the FDIC to conclude that the customer had unlimited 1 Cont. access at any time to all funds, and, therefore,
the investment account amounted to nothing more than a mere
reclassification of the demand deposit with no substantive difference.
In this case the investment account is not an account maintained at the
Bank, but rather is an account maintained at the Money Market Fund.
Furthermore, while the customer obviously has some access to funds in
the investment account, that access is not unlimited at least to the
same extent that access to a demand deposit is unlimited. Finally, the
Bank is not actually paying interest to the customer in this case;
instead the Money Market Fund is paying the customer earnings from the
fund's investments. Go Back to Text
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