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2003 Publications
| by Author | by Category |Archive |
December
2003
"The
Double-Edged Sword" by Stephen Mullette
Directors’ and Officers’ Insurance Policies are one of the
most important weapons available to those in charge of companies confronted
by litigation and investigation. But indemnity under such policies can
be a double-edged sword in which directors find their own insurer out
to make a case against them. The existence of a valid policy, and a
claim covered by that policy, does not always mean an insurer is obliged
to pay up .
November
2003
"Statement
of Advice: the mother of all standards" by Peter Bobbin
What exactly is meant by the FSR mandate that the Statement of Advice
must be clear, concise and effective? In this short article, Peter Bobbin
explains how financial planners can use plain language in an effective
way, and still comply with the law regarding SOA. This article originally
appeared in the November 2003 issue of Asset
magazine.
October
2003
"Mochkin
- a man with appeal" by Peter Bobbin
Levi Mochkin was a proper authority holder of a financial services business.
He structured his affairs via two Family Trusts. The Tax Office claimed
that the money paid to the Family Trusts was actually Personal Services
Income and therefore Mr Mochkin was personally liable for income tax.
Before the Full Federal Court, the Tax Office and Mr Mochkin were each
partially successful. The key was the original purpose behind the creation
of the Family Trusts. In this article, Peter Bobbin explains the Court’s
decision, along with its ramifications for financial services licensees.
This article originally appeared in the October 2003 issue of Asset
magazine.
September
2003
"Binding
Death Nominations & Super Splitting Orders" by Nabil Wahhab
The Family Law Superannuation Regulations 2001 introduced super splitting
into property settlements in divorce proceedings. However the new law
does not in every case override a superannuation fund member's binding
death nomination, particularly where children are involved. This article
was written for financial planners, and explains how the new super splitting
law may interact with binding death nominations, including the resulting
effects on financial planning and on the obligations of financial planners
to their clients. A number of solutions are offered to assist non members
and their financial advisers in super splitting cases, and the article
concludes with recommendations for further amendments to the super splitting
law. The article was written by accredited family law specialist Nabil
Wahhab, having originally appeared in the 11 September 2003 issue of
Money
Management.
"Business
Succession Planning Principles" by Peter Bobbin
Business succession planning involves identifying objectives and strategies
for management succession and ownership succession which are designed
to ensure a smooth transition for the business and ensure its continued
profitability. This article represents a "grab" of ideas and
issues to help the business owner understand business succession planning.
Wills, buy/sell agreements, life insurance, taxation and other issues
are discussed for both family and non-family businesses. Updated 2003.
July
2003
"Limits
to responsibility," by Peter Bobbin
In this article,
Peter Bobbin examines a recently ASIC banning order against an investment
adviser, in particular, the issue of to what extent an adviser can contract
out of responsibilities, liabilities and obligations to clients. This
article originally appeared in the July 2003 issue of Asset
magazine.
"Super
Trustees Breath a Sigh of Relief" by Nabil Wahhab
Super splitting law is not as complicated as first thought says Nabil
Wahhab.
On 30 May 2003, the Full Court of the Family Court handed down a decision
in Hickey which says that formal valuation of superannuation interests
is not mandatory in every Family Law matter. The issue before the Court
was whether, in proceedings where parties agree on the value of the
superannuation interests and each of them will retain their respective
superannuation, such an order is a splitting order. The article was
written by accredited family law specialist Nabil Wahhab, having originally
appeared in the 31 July issue of Money
Management.
April
2003
"Preference
Share Capital - an option for private companies" by
Peter Sardelic
Private companies are increasingly looking to preference shares
as a means of raising funds. Investors find that carefully designed
preference shares will protect their interests, while companies seeking
capital have also found benefits using preference shares. This article
explains the various issues surrounding the use of preference shares
as a fundraising or investment tool, including debt equity tax rules,
structuring opportunities, converting preference shares, maintenance
of capital protections for directors, and Corporations Act requirements.
Mr Sardelic concludes that although they do have serious, and in some
cases quite technical, requirements under the Corporations Act, preference
shares present a very attractive and advantageous form of financing
for companies and investors. April 2003
March
2003
"Love
Those Excess Benefits" by Peter Bobbin
Excess
RBL has been a part of superannuation legislation since 1994 and appears
to be here to stay. Unfortunately successful retirement planning virtually
guarantees a superannuation excess RBL failure. Financial planners may
be tempted to adopt 'excess RBL management' strategies for their high
net wealth and high earning clients. In this article Peter Bobbin explains
in technical detail why most RBL tax avoidance strategies will not work.
This article was written for financial planners, having originally appeared
in the 27 March 2003 issue of Money
Management.
"Who
Do You Trust?" by Peter Bobbin
This article addresses
the duties, post-FSR, of a financial advisor to make independent enquiries
about the legitimacy of investment schemes being promoted to clients.
In a recent media release, ASIC announced a one-year banning order against
an advisor who had made no independent enquiries about the legitimacy
of certain schemes, amongst other breaches of his duties to clients.
According to ASIC, the advisor had relied solely on assurances from
his principal. In this article, which originally appeared in the March
2003 issue of Asset
magazine, Mr Bobbin undertakes an extensive review
of ASIC’s current interpretation of the duties of financial planners,
and argues that ASIC has departed from previous law by imposing upon
an advisor the duty to make enquiries independent of the principal’s
approved product list.
February
2003
"Death, Divorce and Division Part
III – Other Divisions” by Chris Tsovolos
SMEs
(Small to Medium Enterprises) comprise a significant portion of Australian
businesses. In choosing a business structure – whether proprietary
company, unit trust, discretionary trust, partnership or joint venture
– regard must be had as to how to exit the structure. This article
discusses various CGT exemptions available to business owners and some
CGT and stamp duty issues arising in a restructure. This article first
appeared in the February 2003 issue of Taxation in Australia.
