Time to get moving on limited AFSL

The so-called accountants’ exemption regarding the giving of SMSF advice ends on 1 July 2016.

Currently, accountants are allowed to provide limited advice on self-managed super funds (SMSFs) without the need for an Australian Financial Services Licence (AFSL), but this condition changes next June.

At present, an AFSL is not required to provide factual information on the various superannuation options (eg industry funds, retail funds, SMSFs). Further, a recognised accountant can recommend, set-up and administer an SMSF, provided that no specifi c product recommendations are provided (regulations 7.1.29(5) and 7.1.29A of the Corporations Regulations 2001).

However, with effect from 1 July 2016, the previous exemption, which allowed accountants to provide financial advice on SMSFs without an AFSL, will be removed. This so-called accountants’ licensing exemption is contained in regulation 7.1.29A of the Corporations Regulations. There is a three-year transition period for accountants utilising the existing exemption to transition to the new regime. Since 1 July 2013, accountants have been able to apply for the new limited AFSL or become an authorised representative.

As a limited AFS licensee, a public accountant can be authorised to give advice about:

• SMSFs eg. making a recommendation to establish an SMSF

• A client’s existing superannuation holdings in certain circumstances

• “ Class of product” advice about a range of products. Applicants for a limited AFSL can choose to be authorised to give class of product advice about the following financial products: superannuation, securities, general insurance, life risk insurance, basic deposit products, and simple managed investment schemes.

If a public accountant applies for a limited AFSL, they will need to meet the requirements of the Corporations Act that apply to them, including the conduct and disclosure obligations that apply when they give financial product advice.

For example, this includes complying with the best interests duty and related obligations, and providing clients with a statement of advice, where required. A public accountant would also need to comply with the general licensing obligations in section 912A of the Corporations Act.

What a public accountant will need to do to meet their obligations under the Corporations Act may change depending on factors such as the nature of their business, the service they provide to clients and the products they are advising on.

For example:

• At the licensing level, what they need to do to meet the general conduct obligations will depend on the nature, scale and complexity of their business: see Regulatory Guide 104 Licensing: Meeting the general obligations (RG 104) at RG 104.21–RG 104.22.

• In relation to the conduct and disclosure obligations, what a public accountant needs to do will depend on the service they are providing. For example, if they give personal advice to retail clients on securities, superannuation or simple managed investment schemes, they will need to give a statement of advice, but this is not required for personal advice on basic banking and some general insurance products.

ASIC’s warning: time is short

ASIC has reminded those accountants without an AFSL, or who do not intend to become an authorised representative of an AFS licensee, to start applying for a limited AFSL now, if they want to keep giving SMSF advice after 30 June 2016.

ASIC says it received only a small number of applications for the limited AFSL and had rejected a number of those applications – despite the application process being open for the past two years. Andrew Conway, IPA chief executive officer, says the IPA had constantly advised accountants that they should consider their future business models in light of Future of Financial Advice (FOFA) reforms. He says the IPA reinforces ASIC’s warning that accountants should act now or risk “missing the boat”.

“Public accountants hold the prestigious mantle of trusted adviser and are in the best position to capitalise on the new financial services regime so we are hopeful of a greater and quicker response to the regulator’s requirements,” says Mr Conway.

ASIC notes that after 30 June 2016, any accountant found to be providing unlicensed advice risks regulatory action. Providing unlicensed financial services is a criminal offence.

ASIC deputy chairman Peter Kell says that where an application is in good order, ASIC can assess the application within four weeks, but if further details are required because the information provided is insufficient, this will take longer.

ASIC warns that accountants who do not lodge applications which meet their requirements by 1 March 2016 run a significant risk their application will not be assessed before 30 June 2016. ASIC also warns that there was no proposal to extend the 30 June 2016 cut-off date as accountants have been able to apply for this type of licence since 1 July 2013.

Some key points to note about this issue are:

According to ASIC, the licence application process is not complicated. ASIC has prepared Info Sheet 179 Applying for a limited AFS licence to assist applicants. ASIC has reduced the number of questions in the

application form for the limited AFSL and similarly reduced the number of supporting proof documents required to be lodged with the application. ASIC says it will also assist applicants if they need guidance with the process.

• Completing accountancy-based continuing education will not be sufficient to be entitled to provide financial advice in relation to SMSFs. Satisfactory completion of relevant training courses to provide advice on the relevant classes of financial products will be necessary.

• The organisational competence requirements for recognised accountants will be more onerous after 30 June 2016. Recognised accountants applying after 30 June 2016 will need to demonstrate at least three years of relevant past experience.

• It is important to note that an accountant’s standard professional indemnity insurance will generally not cover the provision of financial services by the accountant.

• If ASIC receives an application but has not granted a licence by 30 June 2016, the applicant cannot give SMSF-related financial advice and dealing services after 30 June 2016 until such time as they are granted a licence or they become an authorised representative of a licensee.

Dispute resolution

It might also be noted that, in light of pending 30 June 2016 deadline, the Financial Ombudsman Service Australia (FOS) has encouraged accountants considering an AFSL to contact them about becoming a member of FOS as an ASIC-approved external dispute resolution (EDR) scheme.

The FOS considers that an important first step is to apply for membership via the streamlined application process tailored for accountants. FOS is providing a range of training and educational services, specifically tailored to accountants, to help raise awareness about the AFSL obligations relating

to the provision of advice on SMSFs.

If you’re interested in obtaining a limited AFSL, don’t delay – start the process rolling now. The IPA is there to help you with this process along with materials such as the Australian Financial Planning Handbook, published by Thomson Reuters, and those from ASIC.