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Compliance confusion may spark legal issues

Exactly whose responsibility it is to inform clients about compliance issues in relation to the new superannuation legislation remains unclear and may lead to legal issues for SMSF practitioners, according to an industry lawyer.

Both accountants and financial advisers will play a role in servicing clients in the lead-up to 1 July, when the new regulations are introduced, and their legitimate duties will see both sets of practitioners discover situations where SMSF trustee action will be required.

“Whose responsibility is it to undertake to assist the client in this matter? Is it the SMSF adviser? Is it the accountant to the fund?” Townsends Lawyers superannuation special counsel Michael Hallinan said at last week’s Super Central Bacon, Super and Eggs seminar in Sydney.

‘It’s going to be difficult. Who’s responsible? As the accountant, if you’re purely providing accounting services to that fund, is it your responsibility to now run to the client and say you’ve got serious issues to consider before 30 June or is it [the responsibility of] the SMSF adviser if there are two roles in relation to that client?”

Hallinan warned that grey zone could be a potential serious area for litigation in future years.

While examining the accountant’s role as an SMSF record or book keeper, he also flagged the ability to defer capital gains as another issue of which these practitioners needed to be aware.

“One thing that intrigues me about this deferred capital gains amount is it’s not going to be an item appearing on the balance sheet. I presume it’s going to have to be noted in the notes to the financial statements,” he said.

“[That] means that for those people who are advising clients, in terms of marriage splits and so forth, it could be very easy to overvalue a member’s account interest because they haven’t taken into account that deferred liability.”

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