Speaking to SMSF Adviser, Senator John Williams said he is very concerned about the promotion of property investment through SMSFs by non-licensed businesses, such as real estate agents, and said more needed to be done by ASIC.
“My biggest bug-bear with ASIC, certainly since I’ve been in the Senate, is the pace they move,” said Mr Williams.
“They need to act quickly, whether it’s liquidators, financial planners or whatever. This is why we launched the inquiry into ASIC, because of the pace of movement [following] the whistleblower from the banks – it took them 16 months to act and only when the whistleblower went and saw them.”
Mr Williams said it is a “frustrating situation” but that he hoped ASIC would be quicker to act in future on these types of issues.
“I’ve said to ASIC to take on notice what we can do to improve their powers and if [they’re] restricted in any way,” he said.
“We need to see that ASIC has all the powers required to carry out their duties.”
Mr Williams raised the issue with ASIC commissioner Greg Tanzer at the joint committee proceedings, inquiring about what ASIC intended to do in relation to property spruikers.
Mr Tanzer said ASIC has a “number of actions pending”, including a matter involving Park Trent, a business that promoted the use of an SMSF to purchase investment property without an AFSL.
“We’ve also written to all the real estate institutes around Australia to liaise directly with their members and put them on notice about ASIC’s view on this,” said Mr Tanzer.
Moran Howlett Financial Planning principal Cameron Howlett told SMSF Adviser that part of the problem is that property is not classified as a financial product under the Corporations Act. This type of issue cannot, therefore, be taken to the Financial Ombudsmen Service and settled more easily and quickly.
“It’s got to be taken through the court system which is also incredibly expensive. After having lost a lot of money, it’s a very difficult path to take so in the end it’s just easier not to do anything which means the property spruikers end up getting away with it,” he said.
“Whether or not property should be carved into the Corporations Act as a financial product, I don’t know – I’m not a lawyer – but there does need to be something done about it. It’s very frustrating for the rest of us who do the right thing.”
[quote name=”Jimmy Neutron”]Hmmm, putting property into the Corps Act, interesting. Does that mean that every time a person wanted to buy a home they would need to consult a lawyer, accountant and financial planner? That’ll never get up.[/quote]
On the plus side, it would mean real estate agents would no longer be able to charge commission. They would have to charge a fee, explain and justify it.
The problem can be solved easily. Any money that is used for investment or deemed or construed to be an investment make it a financial product. So and suggestion or hint that you enter into an arrangement comes under the FOFA so therefore you need to comply to the relevant legislation. This way it captures any investment situation. You don’t have to particularly single out property. So if someone is buying a property for investment they need go through the process.
Hmmm, putting property into the Corps Act, interesting. Does that mean that every time a person wanted to buy a home they would need to consult a lawyer, accountant and financial planner? That’ll never get up.