Category: CCASA News

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Compliance in a digital world

Technology has permeated every aspect of our lives. Disruption is transforming industries and creating new ones. With innovation comes both opportunity and benefits. One of the most significant benefits of technological change is the ability to take complex and time-consuming tasks and make them simpler and easier to manage.

One area that is ripe for this type of disruption is regulatory compliance. The area of company compliance in a digital world is an exciting place to be right now, and it’s a change that the Australian Securities and Investments Commission (ASIC) has stated that it’s now embracing.

ASIC has embraced technological change

There are several ways that ASIC has embraced technology and is encouraging other companies to do the same.

One such change is ASIC’s new Innovation Hub. This has been established to allow ASIC to engage with fintech and regtech startups who are disrupting how people and businesses conduct financial transactions. By speaking directly with innovators through the Innovation Hub, ASIC can help them understand the regulatory framework, how it applies to the technology that they’re developing and what ASIC’s expectations are. At the same time, it allows ASIC to stay abreast of developments in the market.

This process is giving ASIC insights and oversight into how compliance should and will operate in high technology areas like digital financial advice, marketplace lending, equity crowdfunding, blockchain and crypto-asset. ASIC has even gone so far as to introduce a regulatory sandbox, that is the world’s first fintech licensing exemption. This means that that eligible fintechs can be exempt from some elements of regulatory compliance as they prepare to go to market.

While ASIC is encouraging technological change, it’s also clear that some things will not be acceptable. In particular, ASIC has stated that organisations can’t make misleading or deceptive statements about their product. This demonstrates their intention to protect consumers as new technological innovations come into the market.

Regtech is leading the way in innovation

Regtech refers to new technology that helps businesses and consumers meet their regulatory and compliance obligations. This is a hot area for new innovation and has the potential to not only help companies build a culture of compliance, but also to identify new ways they can operate more efficiently and save money.

While ASIC doesn’t regulate regtech directly, it’s keen to support innovation in this space through its Innovation Hub and by meeting with stakeholders in the regtech space. The Innovation Hub offers informal advice to regtech innovators about the regulatory framework and how solutions can operate within that structure.

ASIC is also using new technology to help people resolve regulatory problems. For example, it’s trialling Natural Language Processing and machine learning to enable learning, automation and prediction. ASIC has also received over $6 million from the Australian Government to help it promote the development and use of regtech solutions so that organisations can deliver better regulatory and compliance outcomes. Their objective is to make Australia a global leader in the development and use of regtech.

As the level of regulation becomes more complex, the need for technology that can make it easier for large and small businesses to meet their compliance obligations is increasing. Some companies are even introducing the role of Chief Compliance Officer to deal with the increased responsibility of staying up to date with new regulatory requirements. That’s where technology has an important role to play. Compliance risks will only increase, so the more an organisation can mitigate its risks the better.

Managing your compliance in a digital world

At CCASA, we’re also embracing technology to help you navigate the complexities of corporate compliance and reporting. That’s why we’ve developed our new online reporting portal that streamlines your reporting processes. The system does this by:

  • Letting you see what documents you have to lodge and when
  • Enabling you to authorise lodgements at any day or time, when it’s most convenient for you
  • Showing you information in real time so you know where each of your company’s reporting is at any time
  • Letting you quickly identify which companies we look after for you as your ASIC agent

We’ll also continue to add new functionality to the portal over time to continue to make it easier, more efficient and cost-effective for you to manage your company reporting and compliance.

The technology will benefit anyone who has to manage multiple companies at one time. For example, if you are responsible for the reporting and compliance of 1,200 companies, you may need four employees at a cost of $70,000 per annum each to assist you. In addition, you will need to purchase the necessary computers, hardware and software products. This could cost you almost $15,000 depending on whether you have trusts or self-managed superannuation funds in your structure as well. This would bring the cost of your compliance to almost $300,000, which is considerably more than the cost of leveraging CCASA’s technology at less than $100,000 plus GST per year.

While the cost savings are enticing, our online portal also makes the process of meeting your compliance obligations quicker and more flexible. You’re no longer tied to specific times of the day or paper processes to manage your reporting. You can keep everything on track when it’s convenient for you.

If you’d like to learn more about how CCASA can help you automate your company compliance activities, get in touch.

ASIC updates – annual review fees and industry funding

The Australian Securities and Investments Commission (ASIC) recently introduced a new user-pays funding structure. This means most businesses regulated by ASIC, including private companies, may need to pay an increased fee or new levy.

How will the fee or levy be calculated?

The fee or levy will be calculated differently depending on the type and size of your business.

If you’re a small proprietary company, ASIC will simply increase your annual review fee by $4 from 1 July 2018. This means that small companies don’t have to provide the same level of information to ASIC as larger companies. A small proprietary company satisfies at least two of these points below:

  • The company and all of the entities in its control have a consolidated revenue of less than $25 million in the financial year.
  • The company and all of the entities in its control have consolidated gross assets of less than $12.5 million at the end of the financial year.
  • The company and all of the entities in its control have less than 50 employees at the end of the financial year.

Businesses that are not small proprietary companies have been put into 48 different categories based on their industry. These include large companies, anyone holding an Australian Financial Services or credit licence, insolvency practitioners and auditors.

Depending on which category your business falls into, you may need to pay a flat levy or a graduated levy. Flat levies will be the same for everyone in the category, while graduated levies will depend on the size of your business or its activities.

The amount of the levies are based on ASIC’s actual costs. This means that they can only be calculated in the financial year after the costs have been incurred. A detailed description of how each levy will be calculated can be found here.

When will I get my annual review fee?

Like every company in Australia, your company will have an annual review date. This is usually the date the company was registered. If you’d like to know when your review date is you can check on ASIC’s Organisation and Business Names search by providing your Australian Company Number (ACN).

Following your annual review date, ASIC will send your company an annual statement and invoice. This invoice must be paid to make sure your business remains registered and to avoid paying any penalties.

Under this new process, you will still receive your annual review fee invoice and the amount you must pay will just be increased by $4. Your invoice will give you options as to how you can pay your annual review fee including BPay and credit card. The only exception to this is if you have chosen to pay your annual review fee in advance. This means you have prepaid your annual review fee for 10 years at a discounted rate.

Even if you have prepaid your annual review fee, you’ll still receive an annual statement. When you receive your company’s annual statement, it’s still important that you check your company’s details and make sure they’re up to date. If anything has changed, like your company share structure or directors, then these details should be updated online.

It’s also worth remembering, that within two months of receiving your annual review date your company directors must also pass a solvency resolution. The only exception to this is if you have lodged a financial report with ASIC within the last 12 months.

The solvency resolution states whether the directors believe your company can pay back its debts when they are due. This must be based on a reasonable opinion and the resolution must be passed by a majority of your company’s directors. A positive solvency resolution says that your directors believe the company can pay its debts when they are due, while a negative solvency resolution says that the directors believe the company will not be able to pay its debts. If your company passes a negative resolution you will also need to lodge a statement in relation to company solvency.

What if I am not a small proprietary company?

If your business is not a small proprietary company, you will need to register on ASIC’s new Regulatory Portal. You should have received a letter from ASIC about how to register on the Regulatory Portal already. Only your company director or secretary can register on the Regulatory Portal. Once they have registered they can then invite other representatives to use the Regulatory Portal on the company’s behalf.

By 27 September 2018, you may also need to provide ASIC with some information about your business’ activity. This is for companies who are in one of the categories that will pay a graduated levy. This should be provided through the Regulatory Portal.

What will happen moving forward?

Small proprietary companies will pay their annual review fee when they receive their annual statement and invoice.

If you’re not a small proprietary company, you will receive an invoice through the Regulatory Portal each January, starting January 2019. If you don’t complete the information required or pay your levy, you may face penalties or other action by ASIC.

If you’re concerned about non-compliance or about having the capacity to perform your annual review obligations with ASIC, CCASA can assist you.

Why have these ASIC changes been made?

There are several reasons why these changes have been made. The Government wanted ASIC to be more transparent about the cost of regulation. As a result, ASIC now publishes its Cost Recovery Implementation Sheet (CRIS), which outlines what it expects to spend on regulatory activities for the coming year.

By allocating its costs by industry and business type, ASIC can also better focus its resources on those businesses that need the most regulation. For businesses, this funding structure gives them an incentive to self-regulate as businesses that require less regulation will pay less.

Regardless of the size or industry your company is in, we recommend you seek legal and/or accounting clarification to make the best decisions for your company. Get in touch with CCASA for more information about your ASIC fees and to look at how we can save you money.

One of the most important parts of running a company is managing your shareholders. And there are many company compliance requirements that your company must follow to make sure it’s properly managed. One part of this is to understand whether your shareholders have beneficial or non-beneficial ownership.

So, when it comes to your company’s shares, what does beneficial ownership and non-beneficial ownership mean?

If someone has beneficial ownership of a share it means that you can benefit directly from the shares. If they own shares in your company but aren’t entitled to receive the benefits from them, then you have non-beneficial ownership.

A non-beneficial owner often holds a share for someone else. Some common examples of non-beneficial owners include parents who hold shares for their children, the executor of a will who owns shares on behalf of an estate, or a trustee who holds shares for the beneficiaries of a trust.

What benefits can you have from a share?

A direct benefit of a share may include:

  • a right to the dividends paid
  • a right to vote at the company’s AGM or other voting rights
  • a right to the value of the share when it is sold or transferred.

So if you have a shareholder who is a trustee, they’re not entitled to receive the dividends of the trust. They may receive the dividends but they must hold this on trust for the beneficiaries of the trust. The trustee will be required to distribute the dividends to the beneficiaries based on the details of the trust.

Many people choose to hold their shares under a structure of non-beneficial ownership. This is because using a trust or other similar structure can be a convenient way to hold shares anonymously so details of who the beneficial owner is are not publicly available.

What company compliance is required for beneficial ownership and non-beneficial ownership?

Shareholders who don’t have beneficial ownership of the shares they hold in your company must tell you within 14 days of holding the shares. They must tell you in writing and include the following information:

  • The name and address of the person who transferred the shares to them
  • The number of shares they hold both beneficially and non-beneficially
  • The type of each share.

Your company must keep records of every share that it has issued in its share register. This must include information about each shareholder including:

  • The number of shares they hold in your company
  • Whether they hold the shares as a beneficial owner or not
  • Their name and address
  • The date they started to hold the shares
  • The number of shares in your company they have
  • What type of shares they hold
  • Whether the shares are fully paid, partly paid or unpaid, and how much has been paid for them.

The only exception to this is if you have shares in a listed company. In that situation, a trustee or executor of a will would be listed as the beneficial owner of the share.

Every time any of these details change, your share register must be changed to reflect this. If you’re a proprietary company with 20 or less shareholders then you must also tell ASIC about all of these changes to your share register. You can do this on the ASIC online portal or CCASA can manage this aspect of company compliance on your behalf.  

If you’re a proprietary company with more than 20 members, you only need to tell ASIC about changes that affect your 20 largest shareholders for each type of share that you have. The information that you need to tell ASIC includes:

  • If someone has become one of your 20 largest shareholders
  • If someone is no longer one of your 20 largest shareholders
  • One of your 20 largest shareholders transfers their shares to someone else
  • One of your 20 largest shareholders increases or decreases the number of shares they hold in your company
  • One of your 20 largest shareholders changes their shares from being beneficially owned to non-beneficially owned
  • One of your 20 largest shareholders changes their shares from being non-beneficially owned to beneficially owned
  • One of your 20 largest shareholders increases how much they have paid on their share.

There are several ways these changes could come about, including if:

  • Your company issued more shares
  • Your shareholder bought shares from another shareholder
  • Another member is no longer one of your 20 largest shareholders.

Your company, whether it’s proprietary or public, also needs to tell ASIC when you:

  • Issue or cancel new shares – The information you provide to ASIC must include the number of shares issued or cancelled, what type of shares they are, how much is paid or agreed to be paid on each share and any unpaid amount on each share. This must be provided to ASIC within 28 days.  
  • Make any changes to how your shares are structured – You must include information about each different type of share you have, their codes and a description of them. You must also tell ASIC the total number of shares issued by your company, how many shares have been issued for each type of shares, and the amount paid and the amount unpaid on each share. This must be provided to ASIC within 28 days by proprietary companies. Public companies must tell ASIC about changes to their share structure after they’ve issued their annual statement.

What happens if you forget to tell ASIC?

When it comes to shares and company compliance, there’s a lot to get your head around – but if you don’t tell ASIC about the changes to your company’s shares, your company may be fined.

That’s why many companies find it helpful to let us handle things for them. We can remind you when updates are due, or simply do it for you. Contact us to find out more about we can help you manage your company’s shares. We have company compliance offices in Melbourne and Perth.

Understanding the differences between a proprietary company and a small unlisted public company

Under Australian law, there are two main categories of companies – proprietary (or private) companies and public companies. Most small and medium businesses will choose to register as a proprietary company. However, as proprietary companies are restricted to a maximum of 50 shareholders, sometimes a small unlisted public company may be a better fit.

How are they classified?

Proprietary companies are defined as either large or small. Large proprietary companies have more obligations. A company is large if it meets at least two out of these three tests:

  1. Consolidated revenue: Your gross revenue is equal to or more than $25 million.
  2. Asset value: Your gross assets are equal to more than $12.5 million.
  3. Employees: Your company employs 50 or more employees at the end of the financial year.

If you don’t meet at least three of these tests, then you’re a small company.

Public companies can also be listed (on the ASX) or unlisted. Proprietary companies are always unlisted.

If you’re already running a business and the type of structure no longer suits, you can change your company type. Only some types of conversion are possible, and ASIC recommends that you seek legal advice before doing this. To help you make that decision, here’s our guide to the differences between a proprietary company vs public company.

1.  Executive and shareholder limits

Proprietary companies

Proprietary companies must have at least one shareholder but no more than 50 non-employee shareholders. These are the company owners. It must have at least one director. While it’s not necessary, you may also choose to have a company secretary. While there must be a registered office, the proprietary company doesn’t have to open it to the public.

Public companies

A public company must also have at least one shareholder, but there’s no upper limit to how many shareholders it can have. It’s common for a company to shift from being proprietary to public because it has more than 50 shareholders. Most companies choose to become a small unlisted public company in that situation.

A public company must have at least three directors, two of which must be ordinarily resident in Australia. It also needs at least one company secretary and a registered office that is available to the public during certain hours.

2. Ability to raise capital

One of the major differences between a proprietary company and a public company is their ability to raise revenue. It’s important to be clear on the distinction if you’re deciding between a proprietary company vs a public company, as your choice will determine how you fund your business going forward.

Proprietary companies

A proprietary company can’t do any fundraising activities that need a prospectus. They can only offer their own shares to existing shareholders or their employees. Usually, proprietary companies raise money by accessing credit from financial institutions or are funded by their directors.

The directors of a proprietary company may refuse to register a transfer of shares in the company for any reason. This is why proprietary companies are also known as private companies, and one of the reasons why families often choose this structure – it allows them to keep control over the company’s ownership.

Public companies

Any public company, whether listed or unlisted, can raise capital by issuing shares to the public. The Corporations Act 2001 does have a number of disclosure requirements that must be made to investors when the company is fundraising. Typically, these are included in a prospectus. As disclosure documents need to be lodged with ASIC, it’s strongly advised that you get professional assistance in preparing them.

3. Disclosure requirements

Both proprietary and public companies are regulated by ASIC, although public unlisted companies may also be regulated by APRA if they’re in the financial services industry or related industries.

The level of disclosure a company has to make to ASIC depends on whether it’s a proprietary company or public company and the size of the company. Because public companies can raise funds from the public, their disclosure requirements are more stringent.

Proprietary companies

A large proprietary company must lodge financial statements, an annual director’s report and audited accounts with ASIC unless it has an exemption. Some small proprietary companies may also need to do so but are more likely to be exempt.

Public companies

Public companies of every size must also disclose their financial statements, directors’ report and audited accounts. They must also:

  • provide those reports to their shareholders
  • make their constitution available to their shareholders
  • hold an Annual General Meeting
  • maintain a share register

If the public company is listed, they must also give their shareholders 28 days notice of their AGM and make their remuneration report available.

4. Liability

The structure of your company will determine the liability of your shareholders.

Proprietary companies

Proprietary companies are either limited by shares or by unlimited share capital. The former means that shareholders are only liable for the nominal value of their shares, while the latter means that there is no limit placed on their liability.

Public companies

Public companies vary in the extent of their liability depending on which of these four forms the company takes:

  1. Public companies limited by shares: Shareholders are only liable for the nominal value of their shares.
  2. Public companies limited by guarantee: Shareholders are limited by a specific amount that they are willing to contribute if the company is wound up.
  3. Unlimited public companies with a share capital: Shareholders’ liability is not limited.
  4. No liability public companies: This applies only to mining companies who meet certain benchmarks.

Most small proprietary companies are limited by shares and will have ‘Ltd’ after their business name to indicate their status.

If you need help deciding between a proprietary or public unlisted company type, get in touch with CCASA. We specialise in company compliance and will be able to advise you on the best approach for your business.

This information is general in nature and we recommend that you seek legal and/or accounting advice to make the best decisions for your business.