28/02/2018

An accountant who does not hold the appropriate AFS Licence, or who is not the authorised representative of an AFS Licensee, needs to tread carefully when a client comes to them looking to set up a SMSF or requiring services or advice relating to SMSFs.

We can prepare a disclaimer document for accountants who do not hold an appropriate AFSL which sets out the scope and limits of advice given to the client in relation to SMSFs.

This disclaimer is signed by the client who acknowledges and accepts the limits on advice that can be given in relation to a SMSF by the unlicensed accountant.

Last year we wrote an article which provided some guidance on what advice accountants can give in relation to SMSFs where an AFSL is not held:

https://www.townsendslaw.com.au/blb-news/684/the-limit-for-unlicensed-accountants/

Carrying out services or providing advice where an AFSL is needed but not obtained is a breach of the Corporations Act 2001 and a breach of this legislation can carry monetary penalties and imprisonment.

If an accountant was subject to an investigation by ASIC for providing certain SMSF advice without the appropriate AFSL, the existence of a signed disclaimer will not automatically be conclusive evidence that a breach of the Corporations Act did not occur.

However, it is good written record of the limitations of the accountant’s advice that was disclosed to a client regarding SMSFs.

If you would like us to prepare a disclaimer document or if you require legal advice relating to compliance obligations under the Corporations Act please do not hesitate to contact Townsends Business & Corporate Lawyers on (02) 8296 6222.