Australian Financial Services Licensing (AFSL) Forum

#3964 Reply

Hi George,

 

Thanks for your query.

 

If you are a licensed financial adviser who provides a service that advises on, or ascertains liabilities, entitlements or obligations under taxation law, you are likely to be providing a tax (financial) advice service and be caught by the provisions under the Tax Agent Services Act 2009 (“TASA”).  Currently, advisers who are not registered with the Tax Practitioners Board (TPB) can provide a tax (financial) advice service to clients with the use of a prescribed disclaimer.  As of July 1 this year, the wording of this disclaimer will change to read as follows:

 

(a)        the provider of the advice is not a registered tax (financial) adviser under the Tax Agent Services Act 2009; and 

(b)        if the receiver of the advice intends to rely on the advice to satisfy liabilities or obligations or claim entitlements that arise, or could arise, under a taxation law, the receiver should request advice from a registered tax agent or a registered tax (financial) adviser.

 

There are two important questions to ask yourself then in determining whether you are providing a tax (financial) advice service:

1.         Is the information provided factual tax information, or is it tax law interpretation?

2.         Is the information tailored to the client’s personal circumstances?

 

If the information is not tailored to the client and only factual information, then it is not considered tax (financial) advice.  General information about legal tax loopholes that does not address the client’s specific circumstances is one such example and does not require that you register with the TPB.

 

We would highly recommend registering with the TPB if you are providing other advice that is specific to a client. Once an AFSL holder/Authorised Representative (AR) is registered with the TPB a disclaimer will not be necessary.

 

You should also be aware that any legal advice provided in relation to particular facts would require that you be qualified as a legal practitioner.

 

For more information on this topic see our TASA blogs under ‘legal updates’ on the Holley Nethercote website.  Please do not hesitate to contact us if you would like further assistance in ascertaining whether you are providing a tax (financial) advice service.

 

Author: Grant Holley

Co-contributor: James Tselios

 

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