30/11/2017

At our 'Bacon Super and Eggs' breakfast seminar earlier this month,  ASIC provided further guidance on what accountants who don't hold a limited AFS Licence can and can't do when it comes to SMSFs.  We thought a summary might assist.

Let’s look at an example. You’re an accountant and you do not hold an Australian Financial Services Licence, either full or limited.  You’re a registered tax agent.

Homer has been your client for 15 years and in that time you’ve helped him set up and operate his successful business, including handling most of his tax and business compliance needs.

Homer comes to you and says he wants to invest in property through an SMSF and can you please set one up for him.  What can you do?  What can’t you do? See the table.

If Homer had told you he wanted to invest in property and asked how he could minimise his taxation obligations, as his tax agent you perhaps could have discussed the benefits of self managed superannuation to achieve tax minimisation (given that public offer super does not permit direct investment in real estate).  You could perhaps then have discussed self managed super more broadly because your core advice was in the ordinary course of your activities as a registered tax agent.

If Homer had then told you he wanted to set up an SMSF and asked for your help, you could have assisted him to complete the documents needed to source the trust deed, establish other relevant structures, and apply for all necessary tax registrations by “pointing out where [Homer] should complete his details on a form [or forms] or typing those details into an electronic form [or forms]”  (Table 3 INFO 227).  You could not carry out the whole process for the client or on the client’s behalf.

For further advice on these issues, please contact Peter Townsend at Townsends Business & Corporate Lawyers on (02) 8296 6222.