ASIC falls short on AFSL guidance: lawyer

ASIC’s Information Sheet 216 AFS licensing requirements for accountants who provide SMSF services (INFO 216) covers how the AFS licensing regime applies to SMSF services provided by accountants.

The Fold Legal director Jaime Lumsden Kelly said ASIC has taken a broader interpretation of the tax advice exemption than expected.

“If this is surprising to accountants, it will at least be a pleasant surprise because it allows them to give tax advice on very broad terms relating to financial products without needing a licence or without needing to comply with disclosure requirements if they are licensed,” Ms Lumsden Kelly said.

While such broadness may be a positive in this case, Ms Lumsden Kelly said other aspects of INFO 216 are not specific enough.

“While ASIC did provide some guidance previously, they have consistently referred to regulatory guides which are heavy on financial planning examples, and this information sheet continues to fall into the same trap,” she said.

“Accountants really need accountant-specific examples because accountants don’t do things in the same way that financial planners do. They don’t charge fees in the same way that financial planners do, and accountants have not historically had many of the same conflicts which financial planners do, and which have informed ASIC’s decisions on which examples to include in regulatory guides.”

Ms Lumsden Kelly said it would be useful for ASIC to take a closer look at how accountants do business and offer guidance on some of the key points of difference between accountants and planners.

“There is one example on class of product advice on shares in the information sheet which is useful, but in another place ASIC refers to ‘traditional’ accounting services as being exempt and only lists tax returns as an example,” she said.

“There are numerous other traditional services, including business valuations and independent expert opinions, which are and are not exempt in certain circumstances.”