The Securities and Exchange Commission (SEC) issued a Staff Statement on May 4, 2026, which outlines the Division of Investment Management staff’s views on the application to Pooled Employer Plans (PEPs) of the single trust exclusion in Section 3(c)(11) of the Investment Company Act of 1940 and Rule 180 under the Securities Act of 1933 as it applies to interests in certain collective investment trusts (CITs) issued to PEPs that cover self-employed individuals. The statement reflects the views of SEC staff and does not represent a rule, regulation, or formal action.
PEPs typically are structured as trusts for employees of multiple, unrelated employers and therefore do not fall within the traditional categories of trusts historically treated as “single trusts.” However, Congress amended ERISA and the Internal Revenue Code through the Setting Every Community Up for Retirement Enhancement Act of 2019 to treat PEPs as single-employer plans for those statutes.
The SEC staff indicated it would not object to treatment of PEPs as traditional, single-employer retirement plans under the Investment Company Act’s single trust exclusion, provided the plans are subject to ERISA and satisfy the applicable Internal Revenue Code qualification requirements.
Many PEPs offer CITs as investment options, which typically do not register their interests under the Securities Act due to an available exemption. The exemption isn’t available for plans covering self-employed individuals. In such cases CITs may seek to rely on Rule 180 to avoid registration of their interests under the Securities Act.
Rule 180 includes conditions that, among other things, require the plan to cover only employees of a single employer (or interrelated partnerships) and that the issuer satisfy the rule’s sophistication requirement. The SEC staff acknowledged that these conditions have been interpreted as limiting access for CITs for PEPs that include self-employed individuals. As a result, the staff indicated it would not object if PEPs offer CITs that covers self-employed individuals without SEC registration if the plan is subject to ERISA and may apply the rule’s sophistication requirement to the plan’s pooled plan provider, rather than each participating employer, to determine whether the interests of plan participants are adequately represented.
The staff noted that interests relying on Rule 180 remain subject to the Securities Act’s anti-fraud provisions. The staff’s position also applies to other investment options issued by PEPs that otherwise qualify for Rule 180, not solely for CITs. The statement focuses on the availability of Rule 180 for investment options used by PEPs and does not address the registration status of interests in PEPs issued to plan participants, which may rely on other available exemptions.