Table of Contents
SERIES 7 | SERIES 65 | FINANCIAL REGULATION COURSES
FINRA Rule 2040 — Payments to Unregistered Persons — prohibits any FINRA member firm and any person associated with a member from directly or indirectly paying any compensation, fees, concessions, discounts, commissions, or other allowances to any person who is not registered as a broker-dealer under Section 15(a) of the Securities Exchange Act of 1934 but who, by reason of receiving such payments and engaging in the activities related to them, is required to be so registered — while simultaneously providing two specifically structured exceptions that permit continuing commission payments to retiring registered representatives and transaction-based compensation payments to qualifying nonregistered foreign finders — creating the foundational FINRA-level framework that governs when and how member firms may compensate persons outside the registered broker-dealer community for securities-related activities.
Rule 2040 became effective August 24, 2015 — adopted through SEC approval on December 30, 2014 — consolidating and streamlining several prior NASD rules including NASD Rule 2410, NASD Rule 2420, and their associated interpretive materials into a single unified framework that clarifies the circumstances under which payments to unregistered persons are permissible under federal securities law and FINRA rules.
The rule addresses one of the most persistent compliance challenges in the securities industry — the finders fee question — the situation where companies and broker-dealers seek to engage unregistered persons to introduce investors or clients in exchange for transaction-based compensation, and must navigate the complex line between permissible introductory activities and the brokerage activities that require registration under Section 15(a) of the Exchange Act. Rule 2040 does not resolve that underlying question — it does not define when an unregistered person must register — but it establishes the FINRA-level framework within which member firms must operate when making payments to unregistered persons.
Rule 2040(a) establishes the foundational prohibition in two parallel clauses that together define the complete scope of the rule's restrictions on payments by member firms and associated persons.
The first clause prohibits payments to any person who is not registered as a broker-dealer under Section 15(a) of the Exchange Act but who — by reason of receiving such payments and the activities related to them — is required to be so registered. This is the operative prohibition that addresses the finders fee problem — payments to unregistered persons whose receipt of those payments, combined with the activities for which they are paid, would require them to be registered as broker-dealers under applicable federal securities law.
The critical phrase is by reason of receipt of any such payments and the activities related thereto — the prohibition applies when both the payment itself and the underlying activities together would trigger a registration requirement. A person who merely introduces one party to another without engaging in any of the activities that characterise broker-dealer conduct under Section 15(a) may not require registration — and a payment to such a truly passive introducer may not violate Rule 2040. But a person who solicits investors, negotiates transaction terms, assists in due diligence, provides investment advice in connection with the transaction, or otherwise engages in activities that characterise broker-dealer conduct does require registration under Section 15(a) — and a member firm that pays such a person violates Rule 2040.
The second clause prohibits payments to any appropriately registered associated person unless such payment complies with all applicable federal securities laws, FINRA rules, and SEC Exchange Act rules and regulations. This clause ensures that even payments to registered persons must comply with the complete regulatory framework — the payment cannot be made in a manner that itself violates other applicable requirements regardless of the recipient's registration status.
Rule 2040 does not define when an unregistered person is required to register as a broker-dealer under Section 15(a) — that determination depends on the application of Exchange Act Section 15(a) and the SEC's interpretive guidance to the specific facts and circumstances of each case. Understanding Rule 2040 therefore requires understanding the foundational broker-dealer registration analysis under Section 15(a).
Section 15(a) of the Exchange Act requires any person who effects or induces the purchase or sale of any security and is engaged in the business of doing so to register as a broker-dealer — unless an exemption applies. The key operative elements are the business requirement — the person must be in the business of effecting securities transactions rather than doing so as an isolated or incidental activity — and the effecting or inducing requirement — the person must actually participate in the transaction, not merely make a passive introduction.
The SEC and its staff have identified specific activities that characterise broker-dealer conduct requiring registration — soliciting investors, providing investment advice about specific securities in connection with transactions, handling customer funds or securities, negotiating transaction terms, assisting in transaction structuring, and receiving transaction-based compensation contingent on the completion of securities transactions. Transaction-based compensation — compensation whose amount or receipt depends on the completion of a securities transaction — is one of the most significant indicators of broker-dealer activity under SEC guidance because it aligns the compensated person's financial interests with the completion of transactions in exactly the manner that characterises broker-dealer engagement.
The receipt of transaction-based compensation alone does not determine whether registration is required — it is one factor among several. But its presence, combined with other broker-dealer activities, almost invariably indicates that registration is required. And it is the central feature of most finders fee arrangements — the unregistered person receives compensation contingent on the successful completion of transactions they have helped to effect, bring about, or facilitate.
Supplementary Material .01 to Rule 2040 establishes the affirmative obligation of member firms to determine that their proposed payments to unregistered persons would not require the recipient to register as a broker-dealer — and to maintain reasonable support for that determination.
The supplementary material specifies three mechanisms through which member firms can derive reasonable support for a determination that an unregistered payment recipient does not require registration. First the member may reasonably rely on previously published SEC releases, no-action letters, or interpretations from the SEC or SEC staff that apply to the specific facts and circumstances of the proposed arrangement. Second the member may seek a no-action letter from the SEC staff specifically addressing the proposed arrangement. Third the member may obtain a legal opinion from independent, reputable United States licensed counsel knowledgeable in the area — the independent counsel requirement ensuring that the legal opinion reflects objective analysis rather than advocacy from counsel engaged primarily to reach a desired conclusion.
The determination must be reasonable under the circumstances and must be reviewed periodically if payments to the unregistered person are ongoing in nature — a static one-time determination does not satisfy the obligation for arrangements that continue over extended periods during which the facts and circumstances may change. The member must maintain books and records reflecting the determination — creating the documentary evidence that demonstrates compliance in the event of a FINRA examination or SEC investigation.
The periodical review obligation is particularly important for ongoing finder relationships — a member firm that retained a finder years ago and made a reasonable registration determination at that time cannot assume that determination remains valid indefinitely. Changes in the nature of the finder's activities, changes in SEC guidance on broker-dealer registration, or changes in the volume and character of the finder's involvement with the member's business may all affect whether the original determination remains accurate.
Rule 2040(b) provides a specifically structured exception that permits member firms to continue paying commissions to registered representatives after they retire from the industry — a provision that addresses the legitimate business reality that registered representatives build long-term client relationships that generate ongoing account activity, and that denying any continuing compensation after retirement would create powerful disincentives to serve clients well throughout a career.
The retiring representative exception permits a member to pay continuing commissions derived from accounts held for continuing customers of the retiring representative after the representative ceases to be associated with the member — and the exception applies regardless of whether customer funds or securities are added to the accounts during the retirement period. The exception is not limited to accounts that existed before retirement and that remain static — it covers the ongoing activity of continuing customer accounts even when those customers add to their holdings after the representative's retirement.
Two conditions must both be satisfied for the exception to apply. First a bona fide contract between the member and the retiring representative providing for the continuing commission payments must have been entered into in good faith while the person was an active registered representative — and that contract must specifically prohibit the retiring representative from soliciting new business, opening new accounts, or servicing the accounts generating the continuing commission payments. The prohibition on post-retirement solicitation, new account opening, and account servicing is the critical substantive requirement that justifies the exception — without these prohibitions the retired representative would be engaging in the broker-dealer activities that require registration, rendering the continuing commission payments a circumvention of the registration requirement rather than a legitimate post-career arrangement.
Second the arrangement must comply with applicable federal securities laws and SEC rules — meaning the contract and the payments must be structured in a manner consistent with the Exchange Act's requirements and the SEC's guidance on permissible arrangements with departing registered persons.
The term retiring registered representative is defined to include individuals who retire as a result of total disability as well as those who retire voluntarily — and provides for the continuation of payments to the retiring representative's designated beneficiary or estate in the event of the representative's death during the continuation period.
Rule 2040(c) provides the second specific exception — permitting member firms to pay transaction-related compensation to nonregistered foreign persons who direct customers to the member — subject to seven specific conditions that together establish the structure within which foreign finder arrangements are permissible.
The seven conditions address the scope of the exception comprehensively. The member must have assured itself that the foreign finder is not required to register in the United States as a broker-dealer and is not subject to a statutory disqualification under FINRA's By-Laws — and must have assured itself that the compensation arrangement does not violate applicable foreign law. The foreign finder must be a foreign national — not a United States citizen — or a foreign entity domiciled abroad. The customers directed to the member must themselves be foreign nationals or foreign entities domiciled abroad transacting business in either foreign or United States securities.
The disclosure requirements are rigorous. Customers must receive a descriptive document similar to that required by SEC Rule 206(4)-3(b) under the Investment Advisers Act of 1940 — a document that discloses what compensation is being paid to finders in connection with the customer's account. Customers must provide written acknowledgment to the member of the existence of the compensation arrangement — and the member must retain and make those acknowledgments available for inspection by FINRA. Records reflecting all payments to foreign finders must be maintained on the member's books — and the actual agreements between the member and foreign finders must be available for inspection by FINRA. Each transaction confirmation must indicate that a referral or finders fee is being paid pursuant to an agreement.
The comprehensive disclosure and recordkeeping requirements of the foreign finder exception reflect the regulatory determination that while foreign finder arrangements serve legitimate business purposes in connecting international investors with United States broker-dealers they carry significant investor protection risks — particularly the risk that foreign investors directed to United States securities markets through foreign intermediaries do not understand the compensation flowing to those intermediaries and the potential conflicts of interest those payments create.
Violations of Rule 2040 can generate consequences at both the FINRA self-regulatory level and the federal enforcement level — because paying an unregistered person who should be registered as a broker-dealer implicates both FINRA Rule 2040 and Section 15(a) of the Exchange Act itself.
At the FINRA level violations of Rule 2040 can result in fines, suspensions, and bars under FINRA's disciplinary framework — and member firms that pay unregistered finders who should be registered may also face supervisory violations under FINRA Rule 3110 if their written supervisory procedures fail to address the registration determination obligations of Supplementary Material .01.
At the federal level the SEC has authority to bring enforcement actions against both the unregistered broker-dealers who receive improper compensation and the registered broker-dealers who pay them. In 2025 the SEC charged three investment adviser representatives who had solicited investors, provided marketing materials, and received transaction-based compensation without being registered as broker-dealers — ordering disgorgement and prejudgment interest ranging from approximately eighty-three thousand to one hundred and eighty-one thousand dollars per respondent, civil penalties of twenty thousand to forty thousand dollars, and six-month industry suspensions. The 2025 enforcement action confirms that the SEC continues to treat unregistered broker-dealer activity as a significant enforcement priority — and that the consequences for acting as an unregistered broker-dealer include substantial financial penalties and professional suspensions regardless of whether the individual believed their activities did not require registration.
Rule 2040's prohibition on payments to unregistered persons is directly relevant to the private placement market — where issuers and placement agents frequently engage individuals described as finders or consultants to introduce investors to private securities offerings in exchange for transaction-based compensation.
The private placement finder question — whether a person who introduces investors to private placement issuers in exchange for transaction-based compensation must register as a broker-dealer under Section 15(a) — has been one of the most contested and most practically significant questions in securities regulation for decades. The SEC's longstanding position is that transaction-based compensation for introducing investors to securities offerings is a hallmark of broker-dealer activity requiring registration — but the precise line between permissible passive introduction and broker-dealer activity requiring registration has never been definitively drawn by either the SEC or the courts.
FINRA Rules 5122 and 5123 — which govern private placements of securities issued by members and private placements of securities issued by third parties respectively — both require disclosure of selling compensation in offering documents. Member firms that engage finders to assist in distributing private placements must comply with Rule 2040's prohibition on payments to persons who should be registered — and must maintain the documentation required by Supplementary Material .01 demonstrating that their determination that finders are not required to register is reasonable and supported.
FINRA Rule 2040 is tested on the Series 7 examination in the context of payments to unregistered persons, the retiring representative exception, the foreign finder exception, and the member firm's obligation to determine whether payment recipients require registration.
The key points to retain are these.
FINRA Rule 2040 — Payments to Unregistered Persons — prohibits member firms and associated persons from directly or indirectly paying any compensation to any person who is not registered as a broker-dealer under Section 15(a) of the Exchange Act but who — by reason of receiving such payments and engaging in the related activities — is required to be registered. The prohibition applies whether the payment is characterised as a commission, fee, concession, discount, or any other form of allowance.
The retiring representative exception permits continuing commissions to retiring registered representatives after they leave the industry — provided a bona fide contract was entered into while the person was actively registered, the contract prohibits post-retirement solicitation of new business, opening of new accounts, and servicing of accounts generating the commissions, and the arrangement complies with federal securities laws. The foreign finder exception permits transaction-based compensation to nonregistered foreign nationals or entities — subject to seven specific conditions including member assurance that registration is not required, exclusive foreign customer restriction, mandatory customer disclosure documents, written customer acknowledgments, and transaction confirmation disclosure of the referral fee.
Supplementary Material .01 requires member firms to determine that proposed payments to unregistered persons would not require the recipient to register under Section 15(a) — and to maintain reasonable support for that determination through reliance on SEC no-action letters or releases, seeking a new no-action letter, or obtaining a legal opinion from independent United States licensed counsel. The determination must be reviewed periodically for ongoing arrangements. In 2025 the SEC charged three investment adviser representatives for acting as unregistered brokers — confirming active enforcement of Section 15(a) registration requirements with consequences including disgorgement, civil penalties of twenty thousand to forty thousand dollars, and six-month industry suspensions.
