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2006 Publications
| by Author | by Category |Archive |
December
2006
"I'm
in chains" by Peter Bobbin
A financial planning business that has not been built on bondage (restraint
of trade agreements) is like a fool and his money. Client-contact restraint,
when properly drafted, is a commonsense and practical tool to protect
and maintain a business. Peter Bobbin explains the lessons to be learned
from two recent court decisions: AMP v Manning and Koops Martin v Dean
Reeves. Originally published in Asset
Magazine
November 2006.
"Rotten
to the core" by Peter Bobbin
Financial services licensees can face a dilemma when they need
to warn clients about unprofessional behaviour of a departing adviser.
The ‘bad apple’ adviser often moves on to another licensee,
taking unsuspecting clients with them. Many dealers have refused to
disclose to a new licensee the reason for a "bad apple's"
departure, out of fear of a misrepresentation claim or following a threat
of a defamation suit. Peter Bobbin explains how the industry will benefit
from ASIC’s Bad Apples Project, and what disclosures licensees
should make about fraudulent or non-compliant behaviour of former employees.
Originally published in Asset
Magazine,
December 2006.
October
2006
"Where
the buck stops" by Peter Bobbin
While ASIC is happy to tell us where to invest our tax refund,
there is an irony in the fact that the ATO refuses to answer questions
about our self-managed super funds. Since 1999 the ATO has had responsibility
for the prudential management and regualtion of SMSFs, and yet it refuses
to provide private and binding ruling support. Peter Bobbin explains
why there needs to be an urgent Senate inquiry. Originally published
in Asset
Magazine,
October 2006.
September
2006
"What
Price Advice" by Peter Bobbin
New rulings put the onus on financial planners
to tread carefully with clients, especially those with small sums. Peter
Bobbin explains the lessons learnt from the recent ASIC/AMP Financial
Planning enforceable undertaking, and concludes that the undertaking
also raises more questions than it answers. Originally published in
Asset magazine, September 2006.
August
2006
“Your
Money or Your Wife (... or husband … or significant other?)”
by Stephen Mullette
One
might be forgiven for concluding that the Government is determined to
force married couples, faced with the bankruptcy of one of them, to
separate or bear the financial consequences if they stay together. There
is a clear preference on the part of Parliament for conflict issues
between family law and bankruptcy to be resolved in the Family Court.
However recent and proposed developments have gone further than this,
in their effect, and arguably, further than was intended. Stephen Mullette
discusses a ‘trifecta’ of developments: the Bankruptcy and
Family Law Legislation Amendment Act 2005, Bankruptcy Legislation Amendment
(Anti-Avoidance) Act 2006, and recent superannuation and bankruptcy
proposals. This article was published by the Argyle Partnership in August
2006, as a follow up to another article by Mr Mullette that appeared
in IPAA Journal, June 2006.
"Sum
of all tax fears" by Peter Bobbin
On April 6, 2006, the Australian Taxation Office was empowered with
the tax promoter laws. Peter Bobbin explains the new legislation, and
argues that a simple, poorly crafted or mistakenly drafted negative
gearing plan will fail the new law and make its adviser a tax promoter.
The ATO view of the tax promoter law is the only one that matters unless
a federal court judge rules otherwise, and there is potential for heavy-handed
implementation. Originally published in Asset magazine, August 2006.
July
2006
"Setting
the record straight on bankruptcy notices" by Stephen Mullette
In
a critical decision for all bankruptcy matters, the High Court has unanimously
restored come sanity to what must be done to create a valid bankruptcy
notice. Stephen Mullette discusses the ramifications of Adams v Lambert.
Originally published in the Law Society
Journal, July 2006.
"ASICzophrenia
threatens" by Peter Bobbin
The
Australian Securities and Investments Commission issued a discussion
paper in April 2006: Managing conflicts of interest in the financial
services industry. In this article, Peter Bobbin states that a fully
developed, I-don’t-trust-them,'ASICzophrenia' leaps from the pages
of the discussion paper, particularly with reference to the dominant
theme of fees vs commissions, and he gives reasons why the paper should
be withdrawn. Originally published in Asset
magazine,
July 2006.
June
2006
"Superannuation
choice - can financial advisers get it right?" by June Smith
ASIC
released its most recent Shadow shopping survey on superannuation advice
on 6 April 2006. June Smith explains the implications of the survey
results for financial advisers, compliance managers and Australian financial
services licensees, both in relation to superannuation advice and to
the quality of financial advice overall. Originally published in LexisNexis
Butterworths Financial Services Newsletter, June 2006.
"Through
the looking glass" interview with June Smith
A
major new study into professionalism and ethics in financial planning
is being undertaken in 2006 and is set to refocus the industry on the
individual adviser and their relationship with clients. The PhD study
is being undertaken by June Smith, former General Counsel and General
Manager Policy and Regulation at the Financial Planning Association
and now a Law Partner with the Argyle Partnership. Originally published
in the FPA’s Financial Planning magazine, June 2006.
"A
Practical guide to calculating the tax on your family law settlement"
by Nabil Wahhab
There
are significant taxation, realisation costs and stamp duty issues that
arise on relationship and marriage breakdown. Taxation issues do not
arise only in complex property settlements involving corporate structures,
trusts or self managed superannuation funds, but also can arise in simple
cases where parties own investment properties, shares, or even a Partnership
business owned and run by husband and wife. Nabil Wahhab explains the
taxation and stamp duty consequences on marriage breakdown for both
simple and high asset property settlements. Most of the issues raised
will also apply to domestic relationships. Reflects the law as at May
2006.
"Back
to super future" by Peter Bobbin
Changes
to superannuation in the 2006 Budget will benefit men, but women won’t
be so super secure. Peter Bobbin canvasses the various stages of a typical
working life - under 35, middle age, over 50 - and makes the case that
the 2006 proposals to streamline and simplify superannuation are aimed
at male baby boomers. Originally published in Asset
magazine,
May 2006.
May
2006
“Frontline:
the family home,” by Stephen Mullette
The Cummins case will already be familiar to many
- bankrupt barrister, didn't lodge a tax return for 45 years, transferred
assets to his wife and family trust, bankruptcy trustees had to go to
the High Court to get the assets back. The tax avoidance and abuse of
the Bankruptcy Act caught everyone's attention, and led to recent reforms
to the Act. In this article, Stephen Mullette discusses the asset protection
element of the High Court's decision. Mr Mullette explains the significant
ramifications not only for bankruptcy trustees, but also professionals
in their own arrangements and those offering advice, including financial
planners, lawyers and conveyancers. Originally published by The Argyle
Partnership - Lawyers in May 2006. This article was published in CCH
on 29th May 2006.
"Breaking
the Barriers? by Peter Bobbin
The
ultimate legal defence for financial planners is informed clients able
to make and take responsibility for their own decisions. But it’s
easier said than done. Peter Bobbin shares his top ten tips for achieving
clear, concise and effective communication that is legally secure and
liability limiting. Originally published in Asset
magazine,
May 2006.
April
2006
"Can
your neighbour refuse to accept your storm water drainage? by Fiona
Sonntag
Consider
this scenario. You own land (Lot B) which has properties on either side.
Lets call them Lots A and C. Since the early 1960’s Lot A has
drained its stormwater into a pipe which crosses your land (Lot B),
collecting your stormwater and then crosses your neighbour’s land
(Lot C), collecting its stormwater and finally runs into an open stormwater
drain owned by council. There are no easements over Lots B and C entitling
Lots A and B to drain water over them. The owner of Lot C decides he
no longer wishes the pipe in his property to carry your stormwater.
Fiona Sonntag explains how the court may come to your aid.
"Developing
with Drainage Just how easy are drainage easements? by Ben Smits
Far
too often a development site is acquired without the developer forming
an appreciation and understanding as to how surrounding landowners will
react to their proposal. There is a fine line between necessity and
burden. In this article solicitor Ben Smits analyses the statutory,
common law and planning procedures adapted to provide three main drainage
remedies for the would-be developer
"Ineffective
principals." by Peter Bobbin
The
Financial Planning Association’s conflict of interest principles
are unlikely to prevent another Westpoint fiasco from happening. Peter
Bobbin explains the implications for financial planners and their compliance
officers. Originally
published in Asset
magazine, April 2006.
March
2006
“Compliance
when it really matters” by Denise Eastabrook and Peter Bobbin
Ensuring
your practice is compliant can result in real business benefits. The
Argyle Partnership’s practice director, Denise Eastabrook, and
partner Peter Bobbin explain the benefits of quality accreditation for
professional services businesses in general, and financial planning
businesses in particular. ‘Comply or die’ can become: comply
and thrive. Originally published in Money Management’s “Argyle
Advocate” column, 30 March 2006.
"Dear
John ..."
by Peter Bobbin
Section
279D of the Income Tax Assessment Act 1936 operates to enable a super
fund trustee to increase the death benefit to the family, by clawing
back through the taxation system the taxes paid on the taxable contributions
the fund received over the years. Peter Bobbin explains the workings
of section 279D, including why so few funds are able to take advantage
of the section, and proposes an amendment to rectify defects in the
legislation. Originally
published in Asset
magazine,
"Association
Management: A Professional Evolution" by June Smith
Like other occupations,
such as nursing, policing and financial planning, the occupation of
association management is moving towards new and important considerations
of what it means, in both an ethical and professional sense, to be an
Association Executive. Can Association Management become a recognised
profession, with Association Executives as the members of that profession,
and what does this mean? In this conference paper, originally delivered
to the AuSAE 2005 National Conference in May 2005, June Smith considers
what are the key features of a profession, what it means to be a professional,
and how an occupation evolves into a profession.
February
2006
"Conduct
unbecoming" by Peter Bobbin
The ATO will
find the sacrificial financial planner who it will impale on the new
Tax Promoter, Let's Get 'Em Law: ASIC will become jealous of this law.
The usual suspects will feature heavily in 2006, refusing to let some
old issues die and finding new onces to get stuck into. Peter Bobbin
writes. Originally published in Asset
magazine, February
2006.
December/January
2006
"Fraud,
stupidity and trust," by Peter Bobbin
Peter Bobbin
predicts that fraud will be the next major ‘growth opportunity’
in the financial services industry – followed closely by fraud
investigation, fraud litigation, and fraud induced bankruptcy of representatives
and licensees. Taking examples from the Crimes Act (NSW) and recent
caselaw, Mr Bobbin explains why a culture of ethical conduct is so important
to your organisation. Originally published in
Asset magazine December/January
2006.
