I Love SMSF director Grant Abbott told SMSF Adviser that the key piece for accountants to consider when reviewing a client’s investment strategy for their SMSF was whether the assets as recorded in the document matched the assets in the fund, something which had tripped up auditors in recent legal cases.
“There is potential that if an accountant, for instance, knew the client was investing in property and helped the client to do an investment strategy that showed them investing in shares and cash, that would be a breach of the SIS Act and a client would have a potential [legal] action [against them],” Mr Abbott said.
“I’ve also seen investment strategies which give an exact weighting for property like 78 per cent [of assets], which is impossible because at any point in time there is going to be money going in and out and the property is going to go up or down in value.”
At the same time, Mr Abbott said the lack of a documented strategy, or a strategy that was overly vague, could also trigger a breach of the SIS Act, as indicated by the ATO’s recent warnings that trustees were obligated to have a valid and considered strategy document in place.
“There is a provision in the legislation that the trustee can recover funds from any person who has been in breach of the investment strategy rules, so if the accountant is advising the trustee on compliance and they don’t look at the investment strategy, that is where I believe there is a legal action for the accountant,” he said.
“To put zero to 100 per cent [weightings] on all assets is not an investment strategy, so any transaction undertaken in a fund that has that type of strategy is in breach because there is technically no investment strategy, which is again where the accountant could get caught.”
Mr Abbott said the risk of civil cases against SMSF service providers for SIS Act breaches in this respect was more likely than any action around the advice given, as investment strategies were not technically classified as a financial product.
“There is nowhere in the Corporations Act where advising a trustee on an investment strategy is remotely considered to be a financial product, unless the accountant goes to the next level and tells the client what to invest in,” he said.
“I don’t think you’d have any standing because there is no underlying product, and in order to go to AFCA, you have to have a complaint in relation to a financial product.”
Mr Abbott advised that if accountants wished to leave a client to sort out their own investment strategy, they have the client sign a letter indemnifying them against any legal action if the client failed to fill the strategy out correctly.
I personally would think giving unlicensed advice is just as important as breaching the SIS act but then again I’m not an accountant doing everything on execution only with SOA’s. It’s simple — get a license or don’t give advice.
This is becoming totally out of control – once again its paperwork over substance. The little boxes have to be ticked.
Thank you for the disambiguation Grant.
This latest white noise around the IS is requires some sensible commentary as it has blown way out of proportion.
Unfortunately the IS has always been that “hot potato” that no-one wants to touch so it goes unadvised and there is no surprise that it is not done well.