Transfers by trustee companies. ASIC’s requirements set out in Consultation Paper

On 24 January 2012, the Australian Securities and Investments Commission (ASIC) released Consultation Paper 173 "Trustee companies: Transfer determinations by ASIC" (CP 173).

CP173 seeks public comment about the Commission’s power to administer the transfer determination provisions of the Corporations Act 2001 for trustee companies providing traditional trustee company services. 

Relevant Corporations Act provisions

According to CP 173, Part 5D.6 of the Corporations Act sets out the circumstances in which trustee companies can transfer their estate management business to another licensed trustee company.

Transfers are divided into two types:

1. voluntary; and
2. compulsory.

Voluntary transfer involves the total transfer of the transferring company’s estate assets and liabilities.

Compulsory transfer involves the partial transfer of estate assets or liabilities, or a total transfer of them.

Guidance provided by CP 173

CP 173 sets out what information ASIC requires to properly consider an application by a trustee company for a transfer determination.

CP 173 details the information required for:

• an intra-group voluntary transfer determination;
• an arm’s length voluntary transfer determination (involving the transfer of the transferring company’s estate assets and liabilities between two unrelated companies); and
• a compulsory transfer.

ASIC’s guidance in this area will assist trustee companies to prepare and supply relevant material. Such information is necessary so that ASIC can decide whether a transfer is in the best interests of the clients of the transferring company and those of the receiving company.

Commentary on CP 173 closed on 6 March 2012 with release of a final regulatory guide planned for late May 2012/ early June 2012.

More information

For more information on this consultation paper, see the ASIC website.

Source: This article was first published in Thomson Reuters' Accounting & ASIC Compliance Newsletter (Edition 248, March 2012).  This monthly newsletter keeps you informed of the latest accounting and ASIC developments through incisive summaries and helpful commentary.