Gaps found in ASIC’s latest guidance for limited licensing
ASIC's new licensing guidance for SMSF professionals leaves a number of questions unanswered and appears to contradict elements of existing regulation.
ASIC has released new webpage guidance and three new information sheets aimed at helping limited AFS licensees and their representatives to understand their key obligations. The new guidance can be accessed here.
Speaking to SMSF Adviser, Licensing for Accountants chief executive Kath Bowler said there were a number of specific areas, previously raised with ASIC, that were left unanswered in the guidance.
For example, in Information Sheet 227 What can limited AFS licensees do? There was no reference to the exemption that allows accountants to do establishment services on instruction from the client, and what ASIC’s expectations are there, she explained.
“The information sheet also provided quite a bit of information on retail versus wholesale clients but I'm not sure that it clarified things for accountants,” she said.
“Most of the advice that an accountant can provide in a licensed capacity will need to be done as retail advice, because a lot of the wholesale advice relates to activities that go beyond the scope of the limited licence,” she said.
“That’s not always the case, but that wasn't really addressed or covered at all in the information sheet.”
The information sheet also appears to contradict a quote from Explanatory Memorandum on regulation 7.1.29(5) in the example provided regarding when licensing would be required other than just recommending an SMSF.
Information sheet 227 states: “other examples of financial advice that might be provided in this context include advice about whether the trustee of the SMSF should be a corporate entity or individuals and advice about who should become members of the SMSF”.
The explanatory memorandum, on the other hand, states: “a person can advise a superannuation trustee on operational issues such as… the addition of new trustees and members”.
“I believe the reason for the contradiction is that ASIC does not believe 7.1.29(5) can be relied upon by licensed advisers. Given an exemption does exist for this sort of advice, a cross-reference to the exemption and why it does not apply could have been helpful,” she said.
Ms Bowler said she also has a couple of concerns with Information Sheet 229 Limited AFS licensees: Complying with your licensing obligations, as there could have been more guidance or examples of breach reporting.
“The message that we've been giving our clients is that it's possibly unrealistic to expect them to get everything right first time in this regime, we would be expecting limited licence holders to have some breaches,” she said.
“Accountants are obviously very reluctant to report breaches because they don't want to report they're doing the wrong thing. We're not expecting any kind of leniency [in this regard] but we were hoping for some guidance on how ASIC would view that and what their expectations were.”
The Fold Legal director Jaime Lumsden Kelly also agreed that while the guidance provides a centralised source of information for limited AFS licensees, which is helpful, it doesn’t provide sufficient detail for accountants.
“For example, in Information Sheet 227, ASIC talks about the types of services and products that you can have under a limited licence in the first table, but they’re still talking in the way that the Corporations Act defines things, and they're not looking at what accountants actually do, in the way of service,” said Ms Lumsden Kelly.
“It's very much in legislative terms rather than a list of services that accountants typically provide that states these ones are okay, these ones you need a limited licence for, and if you've got a limited licence, you need to have these authorisations and those ones are exempt,” she said.
“That would have been more helpful to accountants, because I think they would still tend to look at this information and not necessarily be able to connect it to what they do.”
Ms Lumsden Kelly said there was, however, some useful guidance provided in Information Sheet 228, which discusses the effect of insurance and how to handle the life insurance aspect when accountants are setting up an SMSF.
“In this particular section, ASIC has given some really good practical guidance on what you can do and what they expect that you do. So, they're talking about things that you should be telling your client such as the importance of keeping their life insurance in their APRA-regulated super fund while they switch to an SMSF and what the risks are to their insurance if they don't do that, and how they can do that,” she said.
“Essentially helping accountants to make sure that people who switch from regulated super funds into an SMSF structure aren't exposed to losing their life insurance.”