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We posted a response to your second post under the topic ‘Fee Disclosure Statements’ on May 20 (post 3267). It should be showing on the forum and you should be able to continue to comment. Let us know if you still cannot see the response and we will have our IT people look into it.
In relation to your latest query, RG245.61 and 245.62 address slightly different issues. RG245.61 states that where it is impossible or unreasonably difficult to identify the date that an ongoing fee arrangement was entered into, ASIC expects fee recipients to enter into a common sense approach. You are correct that the example is just one of many common sense approaches that could be taken. However, the use of an alternative “common sense approach” runs the risk of ASIC taking enforcement action if it did not agree with that approach.
RG245.62 states that ASIC will not take enforcement action against a fee recipient if they follow the process in RG245.62(a)-(c). In the scenario you describe, we would suggest following this process to take advantage of ASIC’s no-action position. However, if you nominate dates after 31 January 2014 that you are treating as the anniversary, then you will not be covered by ASIC’s no-action position and you may be at risk of enforcement action.
We note that once you have issued the initial FDS, you could then consider ‘resetting’ the disclosure day by issuing a resetting FDS as outlined in RG245.71 if you wish to reset your disclosure dates to the second half of 2014.
Please contact our office if you wish to discuss further.
Author: David Court
Co-contributor: Megan Jaksa