BUILDING companies that work for a developer financed by self-managed superannuation funds have an unhealthy habit of going broke leaving subcontractors unpaid.
ASIC has banned Mr Adrian Chenh and Mr Bill El-Helou from providing financial services for a period of five years each following an ASIC investigation.
ASIC’s investigation found that Mr Chenh and Mr El-Helou provided advice to clients that was in breach of the best interests duty introduced under the Future of Financial Advice (FOFA) reforms.
The corporate regulator has launched a major investigation into hundreds of funds in a bid to uncover unlicensed SMSF advice.
As reported by ifa sister publication SMSF Adviser earlier this year, ASIC is currently conducting a major shadow shopping exercise, and has now started contacting various SMSF professionals to collate data on the set-up process of hundreds of funds, as part of a massive research project set for release later this year.
In emails seen by SMSF Adviser, it is clear ASIC has selected several hundred funds that were set up in September 2016 for random investigation, and is contacting tax agents associated with the funds.
ASIC is asking if the clients of the tax agents received any professional advice about establishing their SMSF and, if so, that the contact details are passed on.
While ASIC is gathering details about both financial advisers and accountants as part of this project, it is understood that broadly, unlicensed accountants in particular are on the regulatory radar.
The information supplied to ASIC is treated as anonymous, but the general findings will be published in a report slated for the second half of this year, an ASIC spokesperson told SMSF Adviser.
ASIC could not outline any further details of the investigation, except to confirm that it is pursuing its “major” shadow shop as announced in February, and will be looking at random samples of SMSF advice.
Despite being relatively lax in the past to instances of accountants operating outside of the accountants’ exemption in particular, BDO’s national leader for superannuation Shirley Schaefer suggested ASIC will be taking no prisoners this time around.
“I suspect a lot of accountants have sat outside the accountants’ exemption for years, and ASIC never did anything about it in the past,” Ms Schaefer told SMSF Adviser.
She acknowledged that many accountants do not agree that the SMSF services they are providing fall into the financial advice category, an argument that is largely irrelevant in 2017.
“This is not just tax advice. I certainly believe [SMSFs are] a structure not a product, but that argument is gone. There’s no point having that one again. We’ve been there and it’s gone,” Ms Schaefer said.
Article from: Independent Financial Advisor
KATARINA TAURIAN- Wednesday, 29 March 2017
ASIC has permanently banned Mr Sandeep Madhoji from providing financial services or engaging in credit activity after he was sentenced to imprisonment for fraud charges. This prosecution was the result of a joint operation between the Queensland Police Service and ASIC.
The charges stemmed from conduct that occurred between 2 September 2010 and 11 July 2012. During this period, Mr Madhoji misused clients' funds by applying some client's funds to cover the loss made on other client portfolios.
As a result of Mr Madhoji's actions, 14 clients collectively lost $3,251,281. These losses were incurred by Mr Madhoji using his recommended trading strategy.
Mr Madhoji made false statements to his licence holder Redwood Capital Group and to his clients to conceal his losses. He acted outside his authority by making multiple unauthorised transfers and withdrawals from the accounts to hide the losses. Mr Madhoji also falsified client account statements in relation to the relevant transactions.
Mr Madhoji committed these offences to enhance his reputation to clients and create an illusion that he was a highly successful trader.
ASIC Deputy Chairman Peter Kell said, 'Dishonesty by any financial advisor will not be tolerated by ASIC. We will investigate and prosecute instances of dishonesty to ensure that consumers have confidence in the financial system.'
On 26 August 2016, Mr Madhoji was sentenced to 7.5 years imprisonment with a non-parole period of 22 months in the Brisbane District court on 55 charges of fraud under sections 408C of the Queensland Criminal Code.
Mr Madhoji was an Authorised Representative under Redwood Capital Group Pty Ltd, AFSL No. 289327. AFSL No. 289327 held by Redwood Capital Pty Ltd was cancelled on 9 April 2013.
Mr Madhoji's status as an Authorised Representative was ceased on 1 July 2012.
This matter was prosecuted by the Queensland Director of Public Prosecutions.
On 9 September 2016, the Administrative Appeals Tribunal (AAT) upheld ASIC's decision to disqualify Mr Abe Samuel from being an approved self-managed superannuation fund (SMSF) auditor.
The AAT found that Mr Samuel "plainly breached the auditor independence requirements in APES 110 (Code of Ethics for Professional Accountants). As a consequence, he contravened his professional obligations under s128F of the Superannuation Industry (Supervision) Act 1993."
The AAT was satisfied that Mr Samuel "failed to carry out or perform adequately and properly the duties of an auditor under the Act or the Regulations or as otherwise required by law; and, furthermore or alternatively, the Applicant (Mr Samuel) is not a fit and proper person to be an approved SMSF auditor for the purposes of the Act."
The AAT stated that it upheld ASIC's decision due to "the very serious and fundamental nature of the applicant’s (Mr Samuel's) deficiencies; his longstanding and ongoing failure to understand properly those deficiencies; and the clear need to uphold the integrity of the SMSF system."
ASIC Commissioner John Price noted the AAT finding, saying: "To safeguard the SMSF sector, ASIC will continue to use its power to disqualify approved SMSF auditors that don’t perform their role adequately and meet professional standards."
SMSF trustees and members can check whether their auditor is registered, or whether a person has been disqualified, by searching ASIC's SMSF auditor register at connectonline.asic.gov.au.
Information about Mr Samuel was referred to ASIC by the Australian Taxation Office (ATO).
On 7 October 2015, ASIC made an order disqualifying Mr Samuel from being an approved SMSF auditor. Mr Samuel requested that ASIC reconsider the disqualification decision. On 23 November 2015, a delegate of ASIC confirmed the decision.
ASIC found that Mr Samuel had breached auditor independence requirements of APES 110 where he was:
- a member of a fund he audited and also the director of its corporate trustee; and
- the power of attorney holder for, and a relative of, a member of a fund he audited.
On 18 December 2015, Mr Samuel applied to the AAT for a review of the disqualification decision.
From 1 July 2013, the SIS Act required all auditors of SMSFs to be registered with ASIC. This was to ensure that all SMSF auditors at least meet the base standards of competency and expertise.
ASIC and the ATO work closely together as co-regulators of SMSF auditors. The ATO monitors SMSF auditor conduct and may refer matters to ASIC for possible action such as disqualification or suspension of their registration.