LICENCES AND REGISTRATIONS

Transcription

1 LICENCES AND REGISTRATIONS FOR PUBLIC PRACTITIONERS IN NEW ZEALAND INTRODUCTION In addition to the CPA Australia By-Laws, a public practitioner may be required to satisfy a number of licensing requirements and other regulations when conducting public accounting services, depending on the services offered. Licensing and reporting requirements must be met where a practitioner intends to practice as: an accountant a tax adviser an auditor a liquidator or trustee in bankruptcy a financial adviser and financial service provider. This document provides a brief overview of the eligibility criteria in these areas. Understanding your obligations will assist you in identifying the appropriate criteria you need to meet in order to provide the services you wish to offer as a practitioner. This guide considers licensing requirements relevant in New Zealand and unless otherwise stated all references to legislation or regulations are to legislation and regulations in New Zealand. 1

2 CONTENTS Accountants 3 Accounting requirements 3 Tax advisers 5 Auditors 6 Liquidators or trustees in bankruptcy 9 Financial advisers and financial service providers 10 ACCOUNTANTS The regulation of the accounting profession has been through a period of change with a number of amendments to the laws that regulate accounting and auditing practice. The main purpose of the changes is to allow the accounting and audit industry to be more efficient and effective. The principal changes when fully implemented will: amend the rules as to who may perform statutory audits replace references to chartered accountant in legislation with qualified statutory accountant or qualified auditor allow audit firms to incorporate introduce a requirement for the independent assurance of the financial statements of large and medium-sized charities. Many of the changes have already occurred. The previous designation chartered accountant is replaced with the designation statutory accountant and the term qualified auditor is used for auditors. Previously only people who were suitably qualified as accountants could describe themselves as accountants or hold themselves out as accountants in New Zealand. Certificates, degrees, diplomas, registration or similar qualifications in accounting are regarded as suitable qualifications, whether or not these are qualifications obtained in New Zealand 1. People who were not suitably qualified could still describe themselves as accountants so long as they were not offering such services to the public. Anyone, whether qualified or not, could practice publicly under the designations of secretary or bookkeeper or cost consultant, so long as that person did not convey the impression that he or she is an accountant. Qualified auditors and statutory accountants have to be members of an accredited body. A qualified statutory accountant means a person who is either a chartered accountant 2 or a member of an accredited body (other than the Institute) who holds the full professional designation of that body (for example, a certified practising accountant). An accredited body is a body that is granted accreditation, or is treated as having been granted accreditation, under the Auditor Regulation Act New Zealand Institute of Chartered Accountants Act 1996 (NZICA96), s.15(1). 2 As per NZICA96, s.19. 2

3 A CPA Australia membership enables practitioners to perform a range of audits including Financial Market Conduct audits in New Zealand in certain cases. 3 (These requirements are discussed further under Audits below) It is an offence for someone to act or hold themselves out as a qualified auditor if they are not in fact a qualified auditor in respect of the entity and in terms of the FRA13 4. Accounting requirements The Financial Reporting Act 2013 (FRA13) sets out the financial reporting requirements for New Zealand companies and other entities. It aims to: reduce compliance costs by removing or reducing reporting obligations where they are considered unnecessary or excessive strengthen the law where the current reporting requirements do not adequately meet users' needs make financial reporting legislation more user-friendly by placing the substantive reporting requirements in Acts where the public would expect to find them (for example, all the substantive rules relating to the preparation, auditing and distribution of financial statements for companies will form part of the Companies Act 1993 (CA93)). Statutory financial reporting obligations The financial reporting and auditing requirements for companies are set out in the CA93. Some entities, including some companies and including all FMC reporting entities have their financial reporting and auditing requirements set out in the FRA13 or the FMC13. CA93 financial reporting and auditing requirements then no longer apply to those companies. Generally, only large and overseas owned companies are required to prepare general purpose financial statements. All other companies will not generally be required to prepare general purpose financial statements unless they provide financial products to investors (Financial Market Conduct reporting entities) or a number of shareholders resolve that financial statements be prepared. Where general purpose financial statements are not required to be prepared, the entity must still meet Inland Revenue s minimum reporting requirements. For further details, refer to Inland Revenue s website. The diagram on the next page provides further guidance on whether a particular entity is required to prepare general purpose financial statements, and their audit and New Zealand Companies Office filing requirements. 3 Provided the practitioner is licensed by CPA Australia (as an accredited body of the Financial Markets Authority). 4 See FRA13, s.39a and s.39b. 3

4 Diagram 4A 4

5 Notes: 1. The term FMC reporting entity is defined in the Financial Markets Conduct Act FMC reporting entities include issuers of regulated products under the Financial Markets Conduct Act 2013, listed issuers, operators of licensed markets, recipients of money from a conduit issuer, registered banks, licensed insurers, credit unions and building societies. 2. Where separate GPFS are not prepared, Inland Revenue s minimum financial reporting requirements must be met. 3. For an overseas company trading in NZ, size is based on the overseas company (and its subsidiaries), not just on the NZ operation. 4. For a NZ registered company that is a subsidiary of an overseas company, size is based on the NZ registered company (and its subsidiaries). 5. For a NZ registered company that is New Zealand owned, size is based on the NZ registered company (and its subsidiaries). 6. If the NZ branch of an overseas company is large, the financial statements must include, in addition to the financial statements of the overseas company, financial statements for its NZ branch. 7. Can opt out of both requirements with 95% shareholder approval (meaning that 95% of voting shares must be cast in favour of the proposal to opt out). If the company opts out of preparing GPFS, it must meet Inland Revenue s minimum financial reporting requirements. 8. Non-large companies with fewer than 10 shareholders are not required to prepare GPFS or have them audited, but must do so if at least 5% of shareholders require them to. The FRA13 provides for various matters relating to financial reporting duties including defining key concepts (for example, generally accepted accounting practice, financial statements, and group financial statements); and providing for the Financial Reporting Board to prepare and issue financial reporting standards and auditing and assurance standards. It also provides the standard provisions for auditor qualifications, access to information by auditors, and balance dates. Other enactments (for example, the CA93 and FMC13) specify various financial reporting duties that apply to different kinds of entities, including requirements to keep accounting records; and prepare financial statements or group financial statements in accordance with generally accepted accounting practice or non-gaap standards; and have those statements audited; and register or lodge those statements or otherwise distribute those statements to interested persons (for example, shareholders or members) 5. TAX ADVISERS New Zealand does not require registration of tax advisers. However, tax practitioners often choose to register with the Inland Revenue Department (IRD) as tax agents, which allows them an extension of time for filing their clients tax returns and to receive standard communications from Inland Revenue. Most professional tax advisers are, in fact, either accountants or lawyers, and are members of their respective professional societies. If tax advisers give financial advice, they will be covered by the Financial Advisers Act CPA Australia members can claim the right of non-disclosure on behalf of a taxpayer 6. Read IRD s Standard Practice Statement 05/07 - Non-disclosure for tax advice documents for further information. 5 FRA13, s.4. 6 CPA Australia has approved advisor group status under section 20B(5) of the Tax Administration Act 1994 (TAA94). 5

6 AUDITORS The audit profession in New Zealand is primarily regulated by the Auditor Regulation Act 2011 (ARA11). The purpose of the ARA11 is to establish an independent oversight system in order to promote quality, expertise, and integrity in the profession of auditors; and to promote the recognition of the professional status of New Zealand auditors in overseas jurisdictions 7. The requirements for auditors who carry out audits of Financial Market Conduct (FMC) reporting entities are covered by the ARA11. FMC reporting entities include issuers of regulated products. They also include listed issuers, banks, insurers, credit unions and building societies 8. The ARA11 requires every natural person who carries out an FMC audit to hold a licence that authorises the person to act as an auditor for that kind of FMC audit. Audit firms must also be registered and must contain a licensed auditor. An audit firm cannot accept an engagement or appointment to act as the auditor of an FMC audit unless it is a registered audit firm. If an audit firm is engaged or appointed to act as the auditor for an FMC audit, the audit firm must ensure that each engagement partner or director is a licensed auditor whose licence authorises him or her to act as the auditor in respect of that kind of FMC audit. If an audit firm that is a partnership is engaged or appointed to act as the auditor for an FMC audit, each partner of the audit firm who is a licensed auditor and whose licence authorises him or her to act as the auditor for that kind of FMC audit will be regarded as acting as the auditor for the FMC audit 9. A licensed auditor means a person who holds, or is treated as holding, a licence issued by an accredited body or the Financial Market Authority (FMA). The ARA11 also provides the licensing regime that is overseen by the FMA (see below for further details). The FMA is responsible for, amongst other things, prescribing the requirements for the licensing and registration of auditors. It is also responsible for implementing and maintaining adequate and effective audit regulatory systems, which includes regular quality reviews of every registered audit firm and licensed auditor 10. The FMA is also empowered to grant accreditation to persons and bodies that it is satisfied are fit and proper. An accredited body must require its members to complete competence programs to maintain their ongoing competence and otherwise promote, monitor and review the ongoing competence of its members. An accredited body can also license audit firms if it meets the prescribed minimum standards and one or more of the partners (or directors in the case of a company) is a licensed auditor 11. Partners of audit firms will be held responsible if the FMC audit is not carried out properly and registered audit firms may have their licenses cancelled or suspended 12. The FMA has accredited CPA Australia to license auditors who carry out issuer audits in New Zealand. For more information on the requirements go to cpaaustralia.com.au/nzaudit The Registrar of Companies maintains a Register of licensed auditors and registered audit firms 13. That register is available for searching by members of the public. The FMA can register an overseas audit firm provided certain conditions are met (refer ARA11, s.26 for further details). 7 ARA11, s.3. 8 Financial Market Conduct Act 2013 (FMCA13), s ARA11, s ARA11, s.65 and s ARA11, s ARA11, s ARA11, ss. 14, 25, 38. 6

7 Entity requirements for audit The financial reporting and auditing requirements for companies are set out in part in the CA93. Some entities, including some companies and all FMC reporting entities have their financial reporting and auditing requirements set out in the FRA13 or the Financial Markets Conduct Act The financial reporting and auditing requirements then no longer apply to those companies. Other companies must appoint an auditor if their financial statements must be audited 14. Large companies, FMC reporting entities, public entities and overseas companies must generally be audited. Diagram 4A on page 4 outlines the audit requirements for companies. One of the purposes of the FRA13 is to provide for auditor qualifications and other standard provisions relating to financial reporting duties under other enactments 15. Appointments of auditors To be appointed or to act as the auditor of a specified entity (or of its financial statements) someone must be a chartered accountant, or a member of an accredited body (such as CPA Australia) recognised as being eligible to act as an auditor in respect of entities of the same kind as the specified entity. The person can also be a licensed auditor; or can be a member of an approved association of accountants constituted outside New Zealand provided certain requirements are met. As discussed above, only licensed auditors or registered audit firms can audit FMC reporting entities. An entity is a specified entity if an enactment requires or provides for a qualified auditor to be appointed or to act as the auditor of the entity or of its financial statements 16. A qualified auditor is a person qualified to be appointed or to act as the auditor of the entity. A number of persons are specifically prohibited from acting as auditors of specified entities. These are: a director or an employee of the specified entity a person who is a partner, or in the employment of a director or an employee of the specified entity a liquidator or a person who is a receiver in respect of the property of the specified entity a body corporate, unless the body corporate is a registered audit firm or recognised as one. Until the 2015 amendment no bodies corporate could be auditors. The position was changed to align with the position in Australia, where the Corporations Act 2001 (Cwlth) allows auditors to incorporate as authorised audit companies). Partnerships can be appointed auditors 17. Auditors are generally appointed by a standard letter that will contain undertakings that the audit will be conducted in accordance with relevant legislation and that the auditor will give reasonable assurances that financial statements are complete and adequate. Failure to perform in accordance with these undertakings would be a breach of contract. Auditors must have access at all times to the accounting records and other documents of the entity they are auditing 18. Auditors are entitled to require information and explanations that he or she thinks necessary for the performance of his or her duties as auditor from directors or employees CA93, s.207p. 15 FRA13, s FRA13, s FRA13, s FRA13, s FRA13, s.39. 7

8 Duties and responsibilities of auditors Auditors must comply with all applicable auditing and assurance standards. The auditor of a company must make a report to the shareholders on the financial statements or group financial statements audited by the auditor. The auditor's report must comply with the requirements of all applicable auditing and assurance standards. Audits must be carried out in accordance with auditing standards. Auditing standards may (without limitation) include professional and ethical standards that govern the professional conduct of persons who are appointed or engaged to carry out audits or other assurance engagements. They may differ in accordance to differences in time or circumstance 20. Auditors are under a statutory duty to avoid a conflict of interest. An auditor must ensure his or her judgment is not impaired by any relationship with or interest in the company or any of its subsidiaries 21. Thus, it appears it is possible for the auditor to be interested, so long as the interest does not affect the auditor s judgment. This interpretation is supported by the Financial Reporting Act, which requires disclosure of interest by auditors 22. Removal of an auditor Unless the company is no longer required to appoint an auditor, or an auditor is no longer qualified, in the absence of any action, the auditor will automatically be reappointed at the annual meeting. The company can, however, by resolution decide not to reappoint an auditor 23. When the company decides to replace an auditor, it must give 20 working days notice of its proposal to do so. This is to protect the shareholders in case the auditor is being dismissed because he or she has discovered some information or irregularity that the directors do not want to be made known to the shareholders. The auditor must be given a reasonable opportunity to make representations to shareholders either by letter or by speaking personally or through a representative at the company s meeting. The auditor must be given the choice of what means the auditor will use to put his or her case to shareholders, and the auditor must be paid reasonable expenses in connection with this 24. If an auditor does not wish to be reappointed, the procedure to be followed is set out in the Act. The auditor must distribute to shareholders reasons for not wishing to be reappointed and must be given an opportunity to explain those reasons at a shareholders meeting. Again, the auditor must be paid reasonable expenses. The auditor can also resign at any time by giving notice in writing. The resignation must be notified to the shareholders 25. The auditor must receive all notices and communication relating to a meeting of shareholders, be permitted to attend shareholders meetings, and be heard at shareholders meetings on matters that concern the auditor as auditor 26. LIQUIDATORS AND BEING A TRUSTEE IN BANKRUPTCY In an insolvency in New Zealand, accountants or a person who keeps the creditor s or bankrupt s accounts can represent creditors or the bankrupt at a creditors meeting 27. Accountants are permitted to act as receivers and liquidators in New Zealand FRA13, s CA93, s FRA93, s.16(1)(c). 23 CA93, s.207t. 24 CA93, s.207u. 25 CA93, s.207r. 26 CA93, s.207w. 27 Insolvency Act 2006 (IA06), s Receiverships Act 1993 (RA93), s.5(1) and CA93, Part 16. 8

9 Voluntary Administration (VA) (under Part 15A of the CA93) gives a company in financial distress breathing space from creditors to allow an appointed administrator to review and rearrange a company s affairs in order to avoid liquidation. Any natural person may be appointed an administrator of a company, although an accountant will usually be appointed. An administrator can be appointed by the company, the liquidator or interim liquidator, a secured creditor or the Court 29. While a company is in administration, the administrator has control of the company s business, property and affairs. The administrator may carry on the business of the company and manage its property and affairs. The administrator may terminate or dispose of all or part of the business, or property; and may perform any function, and exercise any power, that the company or any of its officers could perform or exercise if the company were not in administration 30. As soon as practicable after the administration of a company begins, the administrator must investigate the company s business, property, affairs and financial circumstances; and form an opinion about whether it would be in the creditors best interests for: the company to execute a deed of company arrangement the administration to end a liquidator to be appointed 31. To assist in this task, the directors must give the administrator a statement about the company s business, property, affairs and financial circumstances. The administrator may lodge a report with the Registrar specifying any matter that, in his or her opinion, should be brought to the Registrar s notice and must report misconduct. The administrator needs to hold meetings of creditors, the most important of which is the watershed meeting. The watershed meeting is used to decide the future of the company and, in particular, whether the company and the deed administrator should execute a deed of company arrangement 32. The deed of company arrangement is a deed that is executed by the company and its creditors providing for payments towards the creditors debts. If the decision is made to execute one, a deed administrator will be appointed 33. Every administrator (including a deed administrator) must file an account with the Registrar for the period of six months (or shorter, as the administrator decides) after the day on which the administrator was appointed and each subsequent period of six months during which the administrator holds office 34. FINANCIAL ADVISERS AND FINANCIAL SERVICE PROVIDERS Financial advisers are regulated by the provisions of the Financial Advisers Act 2008 (FAA08). The purpose of the FAA is to promote the sound and efficient delivery of financial advice, and to encourage public confidence in the professionalism and integrity of financial advisers, by requiring disclosure by financial advisers. As with other pieces of legislation where disclosure to investors is mandated, the purpose of the disclosure requirement is to ensure that investors and consumers can make informed decisions about whether to use a financial adviser and whether to follow a financial adviser s advice. 29 CA93, s.239h. 30 CA93, s.239u. 31 CA93, s.239ae. 32 CA93, s.239as. 33 CA93 s.239acc. 34 CA93, s.239acz. 9

10 As part of the reforms, the Government replaced the Securities Commission with the Financial Markets Authority (FMA). The FMA has a wider ambit and greater powers than the Securities Commission had. The responsibility of overseeing the FAA08 rests with the FMA (Financial Advisers Amendment Act 2011). The FAA08 aims to protect investors by requiring that financial advisers be competent. This requirement is intended to ensure that the financial advisers available to investors and consumers have the experience, expertise and integrity to match a person effectively to a financial product that best meets that person s need and risk profile. The Act also aims to ensure that financial advisers are held accountable for any financial advice that they give. The Act also requires financial advisers to manage conflicts of interest appropriately 35. The regulation of the industry is split based on the complexity of the financial product that the adviser deals in. Those who deal with complex products need special authorisation under the FAA08. Qualifying Financial Entities are able to take responsibility for advisers under their control. Financial advisers who deal with simpler products such as term bank deposits and call debt securities are subject to just generic conduct and disclosure obligations. A Code governs authorised financial advisers as well as provides a basis for the discipline of the profession 36. The Code details the minimum standards of adviser competence, knowledge and experience, ethical conduct and client care. It lays down guidelines for continuing professional development and specifies standards for the various classes of authorised financial advisers. Following lobbying by accountants, among other professional groups, qualified financial accountants (previously chartered accountants) are not defined as financial advisers and are not required to comply with the provisions of the FAA Financial advice given by an accountant, who is not a chartered accountant, in the course of that person s professional practice is not normally exempt from the need to comply with the requirements of the FAA08. There is an exemption only if that advice given by an accountant is a necessary incident of professional accounting advice. Even there the implementation of the Code requires accountants to undertake further training. The Code states that a person must attain certain Unit Standard Sets of the National Certificate in Financial Services (Financial Advice) to be an authorised financial adviser. A financial adviser is a natural person who performs a financial adviser service. A financial adviser is not a company or other non-natural person. Someone gives financial advice when they make a recommendation or give an opinion or guidance in relation to acquiring or disposing of a financial product 38. An authorised financial adviser is an individual who is registered and authorized. Anybody will be able to apply to the Financial Markets Authority to be authorised. Those who deal with more complex products rather than just with simpler financial instruments, such as call debt securities, bank term deposits, insurance products (except life insurance) or consumer credit contracts, must go through this process. The Registrar of Financial Service Providers will maintain a register of authorized financial advisers 39. The FMA must notify the Registrar of authorisation. Financial advisers who give financial advice must disclose certain information to the person they are giving advice to 40. Authorised financial advisers, who deal with more complex financial products, must disclose information required to be disclosed by the financial adviser s terms and conditions of authorisation such as: professional or business experience relevant to performance of a financial adviser service criminal convictions fees and remuneration material interests, relationships, or associations procedures for handling a client s money or other property dispute resolution arrangements. 35 FAA08, s FAA08, s FAA08, s.14(1)(d). 38 FAA08, s FAA08, s FAA08, s

11 The disclosure requirement for less complex financial products are limited by the status of the financial adviser, for example, whether the financial adviser is authorised or not, dispute resolution arrangements, location of business premises, and telephone, and fax details 41. Disclosure under a disclosure obligation must not be misleading, deceptive, or confusing at the time that the disclosure is made. In addition to disclosure obligations, financial advisers have conduct obligations. Authorised financial advisers must comply with the Code of Professional Conduct for Professional Advisers and with the terms and conditions of his or her authorisation (FA08, s.45). All financial advisers have to exercise the care, diligence, and skill that a reasonable financial adviser would exercise in the same circumstances, taking into account, but without limitation, the nature and requirements of the financial adviser s client and the nature of the service performed for the client 42. It is an offence to engage in misleading or deceptive conduct, nor must an advertisement be misleading, deceptive or confusing. Someone cannot use the term sharebroker in advertising or promoting themselves as a financial adviser or advertising or promoting a financial adviser service, unless that person is a member of a registered exchange such as the NZX 43. Authorised financial advisers must also comply with the code of conduct described above. If an authorised financial adviser considers that someone has breached the FAA08, they may report that breach to the FMA 44. The companion piece of legislation to the FAA08 is the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (FSP08). The FSP08 aims to regulate financial service providers by establishing a registration system for them and requiring them to join an approved dispute resolution scheme. Financial service providers include those who provide a financial adviser service but also extends to banks, broking services, those who keep securities or investment portfolios on behalf of others, providing credit, giving financial guarantees, trustees for securities offered to the public insurers, changing foreign currency and a broad range of other activities 45. Someone is in the business of providing a financial service if that person carries on the business of providing a financial service whether or not that business is the provider s only business or the provider s principal business 46. A person cannot carry on business as a financial adviser unless that person is registered under the FSP08 or, if a financial service provider, the person is a member of an approved dispute resolution scheme. Nor can someone hold themselves out as being in the business of providing financial services unless that person is registered or, if a financial service provider, the person is a member of an approved dispute resolution scheme. However, qualified statutory accountants are not subject to the FSP if the financial service is in the ordinary course of business 47. To become qualified to be a registered financial service provider, a person needs to be a member of an approved dispute resolution scheme 48. Dispute resolution schemes are approved by the Minister and are required to maintain a list of current approved members on an Internet site. An application to be registered as a financial services provider is made to the Registrar of Financial Service Providers who maintains a register of financial service providers 49. The FMA can prevent someone from being registered even if they are otherwise qualified. If someone is no longer qualified to be a financial services provider, they must notify the Registrar FAA08, s FAA08, s FAA08, s FSP08, s.45a. 45 FSP08, s FSP08, s FSP08, s. 7(2)(a). 48 FSP08, ss. 13, FSP08, s FSP08, s

12 Disclaimer CPA Australia has used reasonable care and skill in compiling the content of this material. However, CPA Australia makes no warranty as to the accuracy or completeness of any information in these materials. This material is intended to be a guide only and no part of this material is intended to be advice, whether legal or professional. You should not act solely on the basis of the information contained in these materials as parts may be generalised and may apply differently to different people and circumstances. Further, as laws change frequently, all practitioners, readers, viewers and users are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. To the extent permitted by applicable law, CPA Australia, its employees, agents and consultants exclude all liability for any loss or damage claims and expenses including but not limited to legal costs, indirect special or consequential loss or damage (including but not limited to, negligence) arising out of the information in the materials. Where any law prohibits the exclusion of such liability, CPA Australia limits its liability to the resupply of the information. Copyright CPA Australia Ltd, 2018 All rights reserved. Without limiting the rights under copyright reserved above, no part of these notes may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording, or by information storage or retrieval system, without prior written permission from CPA Australia. Support and Guidance CPA Australia has a range of services specially tailored to support public practitioners. For further information please visit cpaaustralia.com.au/publicpractice or contact your local office on Issued June 2018 This guide is published by CPA Australia. ABN