Fiduciary: Definition, and Why Most Gold IRA Salespeople Are Not Your Fiduciary (the 5-Part Test and 2026 Rule Status)

A fiduciary is a person or firm that the law requires to put your interest ahead of its own when it handles your money or advises you about it. Is the person selling you a gold IRA one of them? In most cases, no, and the company's own contract usually says so. A gold IRA company is the dealer that sells the metal. The custodian is the bank or trust company that holds the account.

This entry is part of the SafeOunce precious metals IRA glossary. It covers the duties, the gold IRA answer, the five-part test, who owes what, the rule's history to 2026, the custodian and 5 checks.

Every rule below links to the regulation or the court record. The 5 key figures are listed below.

• 5 parts in the federal test, and all 5 must be met.
• October 31, 1975: the date of the test that is still in force.
• 2 replacement rules, from 2016 and 2024, and 0 in force.
• 8 of 8 dealer and custodian documents read say "not a fiduciary" or "not licensed".
• $25,569,303: the sum a court ordered given back when it held gold salespeople were investment advisers.

What Is a Fiduciary?#

A fiduciary is someone who manages another person's money or property, or advises on it, and must by law act for that person's benefit and not for their own.

The Consumer Financial Protection Bureau (CFPB) defines it on a page reviewed August 28, 2026. "A fiduciary is someone who manages money or property for someone else. When you're named a fiduciary and accept the role, you must – by law – manage the person's money and property for their benefit, not yours."

A person paid by commission, a payment for each sale, earns more when you buy more. That is a conflict of interest, and a fiduciary duty makes it give way to your interest.

A federal appeals court named the core in Chamber of Commerce v. Department of Labor, 885 F.3d 360 (5th Cir. 2018): "a relationship of trust and confidence between the fiduciary and client". Everyday fiduciaries include trustees, guardians, agents under a power of attorney, attorneys and registered investment advisers.

What are the duties of a fiduciary?#

A fiduciary owes 3 core duties: loyalty, care and honesty about conflicts. The 3 duties are listed below.

• Loyalty: the Securities and Exchange Commission (SEC) says an adviser must "at all times, serve the best interest of its client" (Release IA-5248, 2019).
• Care: the retirement law ERISA asks for "the care, skill, prudence, and diligence" of a prudent expert (29 U.S.C. 1104(a)(1)(B)). Prudence is the care a sensible expert would take.
• Honesty about conflicts and records: the adviser may not put its own interest above yours (the same SEC release). A fiduciary keeps your money separate and keeps good records (CFPB duties 3 and 4).

For a retirement plan such as a 401(k), the fiduciary must also act "solely in the interest of the participants and beneficiaries" (29 U.S.C. 1104(a)(1)). A participant is a worker with money in the plan.

What are the three types of fiduciaries in retirement law?#

Retirement law names 3 ways a person becomes a fiduciary: by controlling the account's assets, by giving investment advice for pay, or by running the plan with discretion. Discretion is the power to decide without asking you first. The 3 ways are listed below.

1. Control: a person who "exercises any discretionary authority or discretionary control" over the plan's management or its assets.
2. Advice: a person who "renders investment advice for a fee or other compensation, direct or indirect".
3. Administration: a person who "has any discretionary authority or discretionary responsibility in the administration of such plan".

The source is ERISA section 3(21)(A), 29 U.S.C. 1002(21)(A). The tax code uses the same 3 for IRAs in 26 U.S.C. 4975(e)(3). A gold IRA sales call could qualify as advice for pay, under the five-part test below.

What is the difference between a financial advisor and a fiduciary?#

"Financial advisor" is a job title anyone can use, while "fiduciary" is a legal duty that only some advisors owe. A registered investment adviser, a firm paid a fee to manage or advise, is a fiduciary under federal law. A broker-dealer, a firm paid to buy and sell securities for customers, owes "best interest" when it recommends.

A third group uses advisor-like titles with no securities license. The Commodity Futures Trading Commission (CFTC) warns that metals dealers who call themselves "IRA experts" are often not licensed or registered (Table 3).

Is a Gold IRA Company a Fiduciary?#

No: in most cases a gold IRA company is not your fiduciary, because a one-time sale fails the federal five-part test and its contract says it only sells. No federal rule requires the person on the phone to recommend what is best for you. The laws that apply forbid fraud, which is deceiving someone to get their money. They do not require loyalty.

The CFTC said so in a customer advisory published with release 8215-20 on August 4, 2020. "Unlike financial professionals who have a fiduciary responsibility to you, these dealers are not obliged to have your best interests in mind."

A gold IRA involves a dealer, a custodian and a depository, and none of the three is hired to advise you. The depository is the vault that stores the metal.

The answer is "most" because the test turns on the facts. A seller who manages your account with discretion, or advises you regularly under an agreement, could meet it.

What gold IRA contracts say: 8 written disclaimers#

All 8 dealer and custodian documents SafeOunce read for this entry say in writing that the company is not your fiduciary or not a licensed advisor. A disclaimer is a sentence in a contract that says what the company does not promise. Table 1 lists the 8 disclaimers.

Quotes are from each company's own published document on the date shown. Companies are listed as sources, not as a ranking.

A written disclaimer is common and is not a warning sign by itself. The warning sign is a seller who says "we are fiduciaries" on the phone while the contract says the reverse. Whether a disclaimer always controls under a state's law is not established here.

How gold IRA salespeople are paid#

Gold IRA salespeople are usually paid a commission out of the spread, the gap between what you pay for the metal and what it costs the dealer. Two contracts in Table 1 say so. A person paid on profit margin earns more when you buy a higher-margin product.

The same statement says the commission was "earned upon receipt of funds from the customer", even if the customer later cancelled or the company could not fill the order. That is one company's sworn statement, not an industry rate.

The spread is often the largest cost a buyer never sees itemized. How dealers set gold IRA markups and spreads is covered with the contract ranges of each seller.

When a gold salesperson does become a fiduciary#

A gold salesperson can become an investment adviser, who owes a fiduciary duty, by telling you to sell your stocks, funds or annuities to buy metal. The law defines an investment adviser as a person paid for advising others on "the advisability of investing in, purchasing, or selling securities" (15 U.S.C. 80b-2(a)(11)). Securities are stocks, bonds, fund shares and similar investments.

A federal court applied it to a failed gold dealer in SEC v. Safeguard Metals LLC, C.D. Cal. No. 2:22-cv-00693-JFW-SK. Its Statement of Decision of May 2, 2025 says "Defendants are investment advisers". The firm told customers to sell securities and was paid through markups. It sold about $67 million of coins to more than 450 mostly elderly investors. Of that, $25,569,303 was markups, about 38% of what customers paid (SafeOunce computation).

Final judgments the same day ordered $25,569,303 in disgorgement, $4,821,263 in interest and a $25,569,303 civil penalty, jointly against the firm and its owner (SEC Litigation Release 26307). Disgorgement means giving back the money made from the violation. A judgment is not money returned: the amounts offset against the CFTC judgment of September 30, 2025, and collections are not public.

A seller's claim to be a fiduciary does not make a sale safe. In CFTC v. Monex Credit Co., C.D. Cal. No. 8:17-cv-01868-JVS-DFM, the CFTC's 2017 release alleged that Monex "falsely promised customers that Monex would act as the customers' fiduciary".

The consent order, a court order both sides agree to, was entered December 19, 2022. It states that a training video told representatives they had "a fiduciary relationship to Atlas customers" (paragraph 32). Monex agreed to $33 million in restitution and a $5 million civil penalty, without admitting or denying the claims. The case involved leveraged trading, not IRAs.

Cases like these are logged in the SafeOunce tracker of gold and precious metals IRA enforcement actions.

The Five-Part Test: When Investment Advice Makes Someone Your Fiduciary#

Under the federal five-part test, a person who advises you about retirement money is your fiduciary only if all 5 parts are met. The advice must be regular, agreed, a primary basis for your decisions and tailored to you.

The test sits in 29 CFR 2510.3-21(c)(1), republished at 91 FR 13509 on March 20, 2026. Advice counts only if the person gives it "on a regular basis to the plan pursuant to a mutual agreement, arrangement or understanding, written or otherwise". The "plan" here is your IRA. The same words apply to IRAs through the Treasury regulation 26 CFR 54.4975-9(c), issued October 31, 1975 (T.D. 7386).

The 5 parts are listed below; all must be true.

1. Advice or a recommendation to buy or sell "securities or other property". Metal is other property.
2. A regular basis: advice given regularly, not once.
3. A mutual agreement, arrangement or understanding that the person is advising you.
4. A primary basis: advice that is a main ground for your investment decisions.
5. Individualized advice, tailored to your particular needs.

A person with discretionary control over what the account buys is a fiduciary without parts 2 to 5 (paragraph (c)(1)(ii)(A)). Table 2 applies the 5 parts to two cases.

A SafeOunce illustration from the regulation and the contracts in Table 1, not a ruling on any company or adviser. The test is applied to the facts of each case.

The Fifth Circuit wrote in 2018: "Salespeople in ordinary buyer-seller transactions have no such authority or responsibility" (885 F.3d 360).

A prohibited transaction is a deal the tax code bans between an IRA and the people around it. One such rule bars a fiduciary from "receipt of any consideration for his own personal account" from a party dealing with the plan (26 U.S.C. 4975(c)(1)(F)). That rule does not reach a commission paid to a seller who is not a fiduciary.

An exemption is permission to do what a rule would bar. Prohibited Transaction Exemption 2020-02 (85 FR 82798, December 18, 2020) remains in force for advisers who are fiduciaries. Its preamble said a first rollover recommendation could start a "regular basis" relationship. The Department of Labor now treats that preamble as vacated, or canceled by a court.

Investment Advisers Owe a Fiduciary Duty, Broker-Dealers Owe "Best Interest", Metals Dealers Owe Neither#

Since June 30, 2020, US federal law has had 2 conduct standards for people who recommend investments, and neither applies to a dealer that only sells gold or silver. Advisers owe a fiduciary duty and broker-dealers owe "best interest".

The SEC set out the first standard in Release IA-5248, 84 FR 33669 (July 12, 2019): "Under federal law, an investment adviser is a fiduciary." The second is Regulation Best Interest, 17 CFR 240.15l-1 (84 FR 33318, July 12, 2019). Its compliance date was June 30, 2020. For metals, the CFTC and the brokerage regulator FINRA wrote on March 20, 2024: "Retail metal dealers are not regulated at the federal level."

The adviser's duty "comprises a duty of care and a duty of loyalty" (the SEC cites SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180 (1963)). A broker-dealer must act "in the best interest of the retail customer at the time the recommendation is made". A retail customer is a person investing for personal or family needs.

The SEC kept the two apart. It "declined to subject broker-dealers to a wholesale and complete application of the existing fiduciary standard".

Table 3 compares the 6 parties around a gold IRA.

Federal standards as of October 2026. A person can hold two licenses; ask which applies to you.

Both standards miss a bullion sale because each is written for securities. Regulation Best Interest covers "any securities transaction or investment strategy involving securities", and its rollover coverage applies only when a broker-dealer recommends. The Advisers Act's list of securities names notes, stocks and bonds, not gold, bullion or coins (15 U.S.C. 80b-2(a)(18)).

A dealer that only sells metal is outside both standards until it advises on securities, as in the Safeguard case. Gold IRA companies answer to other agencies. Agency by agency, who regulates gold IRA companies and where the gaps are is set out separately.

Many articles still say brokers follow a "suitability" standard. For retail recommendations, that has been out of date since June 30, 2020. A third agency, the Department of Labor, tried twice to close the gap for retirement accounts.

DOL Fiduciary Rule History: The 1975 Test Outlived the 2016 and 2024 Rules#

The Department of Labor's five-part fiduciary test dates from October 31, 1975, and the 2 rules written to replace it, in 2016 and 2024, were both struck down in court. The 1975 test therefore still decides who is a retirement-advice fiduciary in 2026.

The Department of Labor (DOL) confirmed it in its Notice of Court Vacatur, 91 FR 13503, published March 20, 2026 and effective April 20, 2026. The notice states that "the 2024 Fiduciary Rule never became effective, and the Five-part Test Regulation was never replaced".

The 2016 rule fell earlier, in Chamber of Commerce v. Department of Labor, No. 17-10238, 885 F.3d 360 (5th Cir. March 15, 2018). That opinion vacated the rule "in toto": the court canceled all of it. A court stays a rule when it puts it on hold.

Table 4 dates the 13 steps from 1975 to 2026, each with its source.

FR is the Federal Register, the daily journal where federal rules are published. CFR is the standing collection of those rules. A mandate puts a court's decision into effect.

SafeOunce computation from Table 4: the test is almost 51 years old in October 2026. 2 replacement rules were published and 0 are in force. The 2016 rule was vacated 706 days after publication. The 2024 rule was stayed 91 days after publication, 60 days before it would have taken effect.

The 3 common versions that need a correction are listed below.

• "The fiduciary rule was overturned in 2018." True of the 2016 rule only; a second rule followed in 2024.
• "The 2024 fiduciary rule is in effect." It never took effect.
• "The five-part test was restored in 2026." The test was "never replaced"; April 20, 2026 is the date the printed regulation was corrected.

Courts, not Congress, ended both rules. Under the 2024 rule, a one-time recommendation to roll a 401(k) into a gold IRA could have been fiduciary advice. Under the rule in force, it generally is not.

Is Your IRA Custodian a Fiduciary?#

Your IRA custodian must hold and account for your assets, but a self-directed IRA custodian is not a fiduciary for your investment choices and says so in its own documents. In a self-directed IRA, you choose each investment.

A custodian keeps the account, follows your written directions, pays the dealer and files the tax forms. A fiduciary adviser judges whether the investment is good for you. A gold IRA custodian is a directed, or passive, custodian: it acts only on your instructions.

The SEC and state regulators (NASAA) say custodians "will generally not evaluate the quality or legitimacy of an investment and its promoters" (investor alert on self-directed IRAs). GoldStar Trust's fee schedule agrees (Table 1).

The word has a second, narrower sense. The law requires a bank or an approved trustee to hold IRA assets (26 U.S.C. 408(a)(2)). In McNulty v. Commissioner, 157 T.C. No. 10 (2021), the Tax Court called "Independent oversight by a third-party fiduciary to track and monitor investment activities" a key part of the law.

That is a duty to hold and report, not to advise. The IRS list of approved nonbank trustees covers who may hold IRAs, not how they treat your choices.

The SEC tested a wider duty in a case against Equity Trust Company over two promoters' frauds. The charges were dismissed on June 27, 2016 (Admin. Proc. File No. 3-16594, Initial Decision Release No. 1030). The agreement quoted in the decision gave the custodian "no obligation or duty to investigate" or "perform due diligence", which means checking an investment before you buy it.

A custodian still owes you what its contract and the custody rules require. The depository stores the metal under contract and gives no advice.

Charters, fees and what each of the gold IRA custodians does and does not check are compared one by one.

Why you are the fiduciary of your own self-directed IRA#

In a self-directed IRA you are the one who decides what the account buys, and that control makes you a fiduciary of your own IRA under 26 U.S.C. 4975(e)(3).

The Eighth Circuit applied it to an IRA owner in Ellis v. Commissioner, 787 F.3d 1213 (8th Cir. 2015). A fiduciary is also a disqualified person. That group is you, your spouse, your parents and grandparents, your children and grandchildren and their spouses, and anyone advising or serving the IRA. Who counts as a disqualified person is defined separately.

Using the IRA for your own benefit is a prohibited transaction. The whole IRA is then treated as paid out on January 1 of that year (26 U.S.C. 408(e)(2)). IRS Publication 590-A says: "Disqualified persons include your fiduciary and members of your family".

It was a used-car business, but the rule is the same for any self-directed IRA. The full list of IRA prohibited transactions for metals has its own page.

How this applies to a self-directed IRA for gold and silver is covered on the account page.

How to Check Whether Someone Is a Fiduciary: 5 Checks#

You can check in 5 steps whether the person advising you is a fiduciary. The 5 checks are listed below.

1. Ask in writing: "Are you acting as a fiduciary on this account, at all times, and will you put that in writing?" A fiduciary can say yes on paper.
2. Look up the person and the firm at adviserinfo.sec.gov for investment advisers and brokercheck.finra.org for brokers. The CFTC's "Lies Versus Facts" says a person who "tells you what to buy, how much, or when to buy or sell" must be registered, which means licensed and listed. Not listed means not licensed to advise on securities.
3. Ask for Form CRS, the short "relationship summary". Investment advisers and broker-dealers have had to give it to retail investors since June 30, 2020 (SEC release 2019-89). A gold dealer has none to give.
4. Read the contract for the words "fiduciary", "advisor" and "commission" before you sign (Table 1).
5. Call your state securities regulator, the state office that licenses advisers and brokers; nasaa.org lists them. Do this if someone without a license told you to sell stocks, funds or an annuity to buy metal.

A seller who is not a fiduciary is still one of the companies your money depends on. What happens when one of them fails is the subject of counterparty risk.

Registration does not prove honesty. It shows who the person answers to.

Checking the firm itself, how to check a gold IRA company in court and regulator records, is a separate task.

Pressure, fear and titles that sound like licenses are among the warning signs of gold IRA scams.

No company can pay to change what SafeOunce writes about it.

Next: who regulates gold IRA companies, agency by agency.

Who Protects Gold IRA Buyers When the Seller Is Not a Fiduciary?#

When the seller is not a fiduciary, 3 other layers protect a gold IRA buyer: anti-fraud law, the contract itself and your own checks.

• Anti-fraud law: the federal commodity anti-fraud rule (17 CFR 180.1) bars deception in metal sales. The CFTC enforces it, and the SEC and the states act under their own laws.
• The contract: spread caps, cancellation windows and delivery terms, where a company publishes them.
• Your own checks: the 5 checks above.

What if things go wrong? A fiduciary who takes pay for himself from a party dealing with your account commits a prohibited transaction (26 U.S.C. 4975(c)(1)(E) and (F)). Against a seller who is not a fiduciary, the route is anti-fraud law, through the agencies.

The agencies, what each can do and the gaps are set out in the regulators of gold IRA companies.

The CFTC Can Sue Metals Dealers for Fraud, and Financed Metal Must Be Delivered Within 28 Days#

Federal law gives a seller 28 days to actually deliver metal that a retail buyer purchased with leverage, margin or financing (7 U.S.C. 2(c)(2)(D)). After that, the sale is treated like an off-exchange futures contract. Leverage or margin means borrowed money. The CFTC can also sue any metals dealer for fraud (7 U.S.C. 9(1)).

The exception covers a sale that "results in actual delivery within 28 days" (7 U.S.C. 2(c)(2)(D)(ii)(III)(aa)). The Ninth Circuit applied it in CFTC v. Monex Credit Co., 931 F.3d 966 (9th Cir. 2019). Metal left in a depository under the seller's control is not actual delivery.

Table 5 shows what the CFTC can and cannot do. Reparations is its program for hearing a customer's own claim.

The CFTC filed its last new complaint against a retail metals dealer on September 27, 2023, and none from then through September 25, 2026.

The rule's full text and cases are in the entry on actual delivery. What the CFTC does and does not do for gold IRA buyers has its own entry.

What fiduciary protection do you give up when you leave a 401(k)?#

A 401(k) is run by plan fiduciaries who must act solely in your interest under ERISA, while an IRA has no plan fiduciary at all. ERISA is the federal law for employer retirement plans. An IRA you set up yourself is not an ERISA plan (29 CFR 2510.3-2(d)), so the plan-level duties stay behind when the money rolls over.

The protections you trade away in a 401(k) to gold IRA rollover are priced one by one. What ERISA protects in a 401(k) is defined separately.

How do fiduciaries get paid?#

Fiduciary investment advisers are usually paid a fee by the client, while salespeople are paid commissions by the firm whose product they sell. The fee can be a percentage of the account, an hourly rate or a flat fee. The law covers pay of any kind, so a commission alone does not make a fiduciary; the 5 parts do.

What is another word for fiduciary?#

The closest plain words for a fiduciary are "trustee" or "a person in a position of trust"; the term comes from the Latin fiducia, meaning trust. "Advisor", "specialist" and "IRA expert" are titles, and a title carries no legal duty. The Fifth Circuit quotes a treatise: "The concept of fiduciary responsibility dates back to fiducia of Roman law" (885 F.3d 360).