Financial Planning Association
of Australia Limited
ABN 62 054 174 453
The General Manager
Business Tax Division
The Treasury
Langton Crescent
PARKES ACT 2600
Level 4, 75 Castlereagh Street
Sydney NSW 2000
GPO Box 4285
Sydney NSW 2001
Tel: 02 9220 4500
Fax: 02 9220 4580
Member Freecall: 1800 337 301
Consumer Freecall: 1800 626 393
Fax: 03 9627 5280
fpa@fpa.asn.au
www.fpa.asn.au
Dear Sir/Madam
Tax Agent Services Bill
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The Financial Planning Association of Australia Limited (FPA) welcomes the opportunity to respond to
the consultation on the current exposure draft of the Tax Agent Services Bill 2008.
FPA members are extremely concerned that the Bill as currently drafted, particularly with regard to the
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definition of a tax agent service , would adversely affect the ability of a financial planner to provide
financial advice to clients in accordance with their obligations under the Corporations Act 2001 Cth
(Corporations Act). The financial planning process requires financial planners to undertake a detailed
consideration of a client’s circumstances and financial position and to develop appropriate
recommendations to deliver on the client’s objectives. As part of these regulatory obligations there is
generally a requirement to consider the taxation position of the client and to discuss how this might affect
or be affected by the recommended advice. The current drafting would, as we read it, require that
financial planners become registered tax agents to deliver such parts of the advice.
The Bill as currently drafted would result in a position detrimental to the interests of consumers and
financial planners. Consumers would need to consult different professionals on connected aspects of
their financial needs, it could create potential obstacles to consumer access to compensation
mechanisms and impose additional costs and unnecessary registration and compliance burdens to
financial planners. This runs counter to the Government’s deregulation agenda and encouragement for
the provision of affordable advice.
We would encourage an amendment to the definition so as to ensure the principles of the Tax Act and
those of TD 2005/16 are maintained. We provide a simple amendment to the definition in the appendix
to the submission, so that it applies only when the provider of the service acts as a taxpayer's
representative in the taxpayer's interactions with the Commissioner.
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The FPA is the peak professional organisation for the financial planning sector in Australia. With approximately 12,000
members organised through a network of 31 Chapters across Australia and a state office located in each capital city, except
Darwin, the FPA represents qualified financial planners who manage the financial affairs of over five million Australians with a
collective investment value of more than $630 billion.
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See Division 90.5 - Meaning of tax agent service
New South Wales / ACT
PO Box 4285
Sydney NSW 2001
Ph: 02 9220 4500
Fax: 02 9220 4580
nsw@fpa.asn.au
Queensland
PO Box 572
Brisbane Qld 4001
Ph: 07 3839 2427
Fax: 07 3839 3172
qld@fpa.asn.au
South Australia / NT
67 King William Road
Unley SA 5061
Ph: 08 8291 8522
Fax: 08 8271 6281
seosa@fpa.asn.au
Victoria
PO Box 109, Collins St West
Melbourne Vic 8007
Ph: 03 9627 5200
Fax: 03 9627 5280
vic@fpa.asn.au
Western Australia
PO Box 317
West Perth WA 6872
Ph: 08 9486 1788
Fax: 08 9486 1799
wa@fpa.asn.au
Tasmania
PO Box 1245
Rosny Tas 7018
Ph: 03 6244 7699
Fax: 03 6244 7688
tas@fpa.asn.au
In view of the foregoing, if it is considered appropriate to nevertheless proceed with the Bill in its
current form, we seek your comment on the Government’ expectations of the financial services
profession in light of the prohibitions upon it arising from the Bill.
If you would like to discuss any of the issues raised in this submission, please contact our Policy and
Government
Relations
Manager,
Gerard
Fitzpatrick
(tel:
02
9220
4505;
email
gerard.fitzpatrick@fpa.asn.au).
Yours Faithfully
Jo-Anne Bloch
Chief Executive Officer
Financial Planning Association of Australia
Attachments:
Detailed Submission to Treasury
Appendix 1: Suggested drafting change to 90-5
Appendix 2: Example of financial planning education requirements
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Tax Agent Service Bill 2008 Exposure Draft
Submission to Treasury
Financial Planning Association
of Australia
June 2008
Tax Agent Service Bill 2008 Exposure Draft
Impact of the Bill as currently drafted
The potential effect of the Bill would be to remove the ability of the financial planner to advise on the
taxation effect of financial strategies and financial products which contradicts the financial planners
obligations under the Corporations Act. This could result in clients not being provided with advice about
the taxation effects relating to their circumstances relating to superannuation advice that may have a tax
component, such as salary packaging, tax deductibility of super contributions, co-contribution eligibility,
and lump sum death benefit provisions. The same effect would apply to other financial planning
strategies relating to matters such as income protection insurance and the deductibility of premiums,
business insurance and estate planning.
The effect of the Bill would be to:
•
Require consumers to consult different professionals about different aspects of their financial
needs;
•
Threaten compensation for consumers;
•
Increase the cost of providing financial services;
•
Create conflicting obligations for financial planners; and
•
Encourage commission and discourage service fee based remuneration.
We comment below on each of aspects.
Require consumers to consult different professionals about different aspects of their financial
needs
Financial planners would be liable to a penalty if they provide or advertise the service of ascertaining of
liabilities, obligations or entitlements of a client’s superannuation or other financial product under a
taxation law as described in the proposed Bill sections 50-5, 50-10 and 90-5.
In view of the responsibility of Australian Financial Services Licensees to both the public and also to
financial planners under the Corporations Act it is very probable that if the Bill is passed in its current
form, Australian Financial Services Licensees will need to limit taxation related financial product and
advice services to consumers. This will require consumers to incur the additional cost of seeking the
counsel of a registered tax agent to complement any financial product or service advice.
It is likely that the registered tax agent will not be capable of commenting on the financial product and
advice services provided by the financial planner.
There is a need for one profession to take a holistic view of the consumer’s financial situation (including
taxation implications of recommendations). This has been and is a core requirement of the financial
planner when giving advice. Under the current system, the financial planner then recommends the client
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to consult with an accountant to confirm the tax implications of certain recommendations – a system
which has worked well for the consumer.
Threaten compensation for consumers;
It is a common feature of a professional indemnity policy that a professional is only insured for actions
and complaints arising in the context of the services provided by them. The context of the Bill urges that
financial planners must not provide or advertise the ascertaining of liabilities, obligations or entitlements
of a client’s superannuation or other financial product under a taxation law. It would seem to follow that
the coverage of professional indemnity insurance and the consequent consumer protection elements
may be adversely affected.
Increase the cost of providing financial services
If passed in its present form, the legislation would require financial planners to become tax agents so as
to fulfil their advice role. This would create additional licensing and training requirements and thus
increase the cost of providing financial planning advice on important client issues such as
superannuation.
This outcome runs counter to two key government objects of reducing excessive and unnecessary
regulation and of seeking to ensure the provision of affordable single issue advice. On the latter point,
the recent consultation paper entitled “Simple advice on choices within an existing superannuation
account” explicitly highlights that “…common requests for intra-fund advice are on topics such as: the
best form of super contributions (for example personal contributions versus salary sacrifice)”. It would
appear inconsistent to encourage advice of specific issues on one hand while restricting the ability to
provide it on the other.
Create conflicting obligations for financial planners
There are existing obligations that require that financial planners take account of the taxation
circumstances of the client and know the taxation structures and implications of a financial product.
Specifically, section 945A of the Corporations Act 2001, and ASIC’s Regulatory Guide 146 and
Regulatory Guide 175.
Section 945A of the Corporations Act provides that a financial services licensee or authorised
representative must only provide personal advice to a retail client if the licensee or authorised
representative:
•
determines the relevant personal circumstances in relation to giving the advice; and
•
makes reasonable inquiries in relation to those personal circumstances; and
•
having regard to information obtained from the client in relation to those personal
circumstances, has given consideration to, and conducted such investigation of the subject
matter of the advice as is reasonable in all of the circumstances; and
•
the advice is appropriate to the client, having regard to that consideration and investigation.
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The Australian Securities and investment Commission’s Regulatory Guide (RG) 146 states;
An adviser providing financial planning advice to retail clients should be able to apply the following
knowledge.
•
the Australian taxation and social security systems
•
relevant taxation laws and regulations
•
effects of taxation on particular financial products
•
effects of taxation on financial strategies of individuals and entities
In addition the RG 146 requires that an adviser should be able to apply specialist knowledge, covering a
number of financial and non-financial products including securities, derivatives, managed investments,
Superannuation and Deposit products and non-cash payment products.
Further, most financial planners who are members of the FPA have qualification levels that exceed RG
146, and include a Diploma or Advanced Diploma in Financial Services. These courses also cover
taxation relating to financial advice. We have included at Appendix 2 the course description of two
subjects within the Master of Commerce (Financial Planning) program at the University of Western
Sydney, which is an example of a post graduate programme undertaken by many members.
Encourage commission and discourage service fee based remuneration
A key element to the imposition of a penalty under the proposed law is where the financial planner
charges or receives a fee or other reward for the ascertaining of liabilities, obligations or entitlements of a
client’s superannuation or other financial product under a taxation law. A financial planner who provides
such services but is only remunerated by way of commission arising from the sale of a financial product
could well argue that any remuneration is a direct result of the sale of the financial product, not for the
provision of the tax agent service. As such they are not in breach of the proposed law.
Legal advice obtained by the FPA would suggest that such a ‘defence’ is not available where the
financial planner charges on a fee for service basis.
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FPA Recommendation
To ensure that the final legislation does not restrict the legitimate provision of tax advice that is incidental
to another service, we recommend an amendment to the definition of a tax agent service so that it only
applies when the provider of the service acts as a taxpayer's representative in the taxpayer's interactions
with the Commissioner. This is consistent with Tax Determination 2005/16 which clarifies Paragraph
251L(1)(b) of the Income Tax Assessment Act 1936 Cth (Tax Act).
TD 2005/16 (extract) sets out the following;
2. Paragraph 251L(1)(b) is concerned with regulating the giving of advice by any person who
acts as a taxpayer's representative in the taxpayer's interactions with the Commissioner. This is
not confined to advice given to a taxpayer in the context of a specific interaction with the
Commissioner, such as the preparation of a return, but includes any situation where a taxpayer
seeks advice about a taxation law to enable them to satisfy a tax obligation.
3. Paragraph 251L(1)(b) does not prevent a person in a non-representational capacity from
giving tax advice that is part of, or incidental to, another service, where that advice is not
provided to satisfy a tax obligation . For instance, a financial services provider can provide tax
advice about a financial transaction, arrangement or plan in accordance with the relevant
requirements of the Corporations Act 2001.
We are aware that TD 2005/16 was drafted after extensive consultation by the Australian Taxation Office
who as part of the consultation process hosted a round table conference attended by not only by
representatives of all potentially affected professional associations (including the FPA) but also attended
by representative of Treasury and the Australian Securities & Investments Commission. Both of these
spoke of the need for financial planners to consider and comment upon taxation matters as part of the
financial planning process and supported the interpretation of Paragraph 251L(1)(b) to enable this, as
expressed in TD 2005/16.
We believe that a simple amendment to the definition as set out in the appendix to this letter, along with a
reiteration that TD 2005/16 (or an appropriately reference replacement Tax Determination) still applies,
would ensure that the negative of impact of the current drafting is avoided.
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Appendix 1: Suggested drafting change to 90-5
Current draft - 90-5
Meaning of tax agent service
(1) A tax agent service is any service:
(a) that relates to:
(i) ascertaining the liabilities, obligations or entitlements of an entity that arise, or could arise,
under a *taxation law;
or
(ii) advising an entity about the liabilities, obligations or entitlements of the entity or another entity
that arise, or could arise, under a taxation law; or
(iii) representing an entity in their dealings with the Commissioner; and
(b) that is provided in circumstances where the entity can reasonably be expected to rely on the service.
(2) A service specified in the regulations for the purposes of this subsection is not a tax agent service.
Suggested amendment - 90-5
Meaning of tax agent service
(1) A tax agent service is any service:
(a) that relates to:
(i) ascertaining the liabilities, obligations or entitlements of an entity that arise, or could arise,
under a *taxation law;
or
(ii) advising an entity about the liabilities, obligations or entitlements of the entity or another entity
that arise, or could arise, under a taxation law; AND
(b) representing an entity in their dealings with the Commissioner; and
(c) that is provided in circumstances where the entity can reasonably be expected to rely on the service.
(2) A service specified in the regulations for the purposes of this subsection is not a tax agent service.
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Appendix 2: Example of financial planning education requirements
The Master of Commerce (Financial Planning) program at the University of Western Sydney includes as
two of its electives;
Taxation Planning and Implications - This unit provides an overview of complex tax areas
which affect financial planning. It explores most areas of taxation including identifying income
and deductions as well Capital Gains Tax and GST. It concludes with an analysis of tax
avoidance issues as they affect financial planners.
Capital Gains Tax - To provide an understanding of the taxation of capital gains. At the
completion of this course students should have an understanding of the complexities of the
taxation of capital gains in Australia; an in depth understanding of the relevant capital gains
provisions in the income tax legislation; and an understanding of the practical applications of the
legislation in relation to the taxation of capital gains.
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