As an Australian Credit Licence holder, licensees should be aware of their trust account obligations.
Determination of Trust Account Obligations
A credit licensee is required to maintain a trust account where:
it holds an Australian Credit Licence; AND
the licensee or its representatives receive money on behalf of another person in the course of providing credit services.
For example, if a licensee collects application fees on behalf of a credit provider, the licensee will fall within the parameters of section 97 of the National Consumer Credit Protection Act 2009 (Cth) and will be required to maintain a trust account.
If a licensee holds money on trust due to obligations under an Australian Financial Services Licence, the trust account obligations for Australian Credit Licensees will not apply. This is because whilst the money is held in trust, it is not in the course of providing a credit service.
Additionally, a licensee will not be required to maintain a trust account if payment is made in favour of the credit provider, for example, by way of cheque, and the licensee is only forwarding the cheque to the credit provider.
Trust Account Obligations
In terms of the trust account obligations, licensees must:
- maintain a trust account with an Australian authorised deposit-taking institution (“ADI“);
- designate the account’s title to include “trust account”;
- pay into the trust account any money that is received on behalf of another person, in its capacity as licensee;
- withdraw money from the trust account for the purpose of paying someone that is lawfully entitled to receive the money;
- appoint an auditor within three (3) months of maintaining a trust account; and
- lodge a trust account statement and trust account report to ASIC each year.
Licensees must not:
- withdraw money paid into the trust account for its own purposes, or any other purpose other than to pay the person lawfully entitled to it; or
- use the money for payment of a debt.
If a credit licensee also holds an Australian Financial Services Licence and maintains a trust account under that regime, it cannot use the same trust account to hold funds received as part of its credit services business. This applies even if the credit licensee has the same clients across both its financial and credit services businesses.
Reporting Requirements
Each year, licensees are required to lodge the following forms with ASIC in relation to its trust account obligations:
Form CL70
Trust Account Statement
Form CL71
Trust Account Audit Report
The forms must be lodged:
- within three (3) months after the financial year ends if the licensee is a body corporate i.e. end of October if your financial year ends 30 June; or
- by 30 September (if the licensee is not a body corporate).
Lodgement of the Forms CL70 and CL71 must be either sent via email to creditlicensing@asic.gov.au or via post to ASIC.
Licensees can apply for an extension of time, provided both the licensee and its auditor give ASIC a reasonable explanation for why the forms cannot be lodged within the timeframe. Extensions are to be requested via email to creditlicensing@asic.gov.au.
In terms of the content of the forms, licensees are required to complete Part 1 of the Form CL70 as a first step, which provides ASIC with the following details:
- contact details (name, telephone, email address and postal address);
- credit licence number;
- financial year;
- trust account name;
- name of Australian ADI with whom the trust account is maintained;
- trust account balance as at the financial year end;
- list of all persons that money is held on trust for;
- total amount of money deposited into the trust account during the financial year;
- total number of persons that you held trust money for during the financial year;
- total number of persons that received trust money during the financial year; and
- dormant balances (for at least 6 months).
Upon completion of Part 1, the Form CL70 should be provided to the licensee’s auditor who will prepare the Form CL71. The trust account audit report must include a statement regarding the following matters:
- whether the trust account has been kept regularly and properly maintained;
- whether the auditor has received all records, information and explanations;
- whether the trust account provides a true and fair view of the transactions recorded; and
- any other matter in relation to the trust accounts which should be communicated to ASIC.
Part 2 of the Form CL70 can then be prepared upon receiving the completed Form CL71 from the auditor.
There are no fees associated with lodgement of the audit forms.
Auditor Appointment Requirements
You must appoint an auditor within three (3) months from when the obligation to maintain a trust account arises. Notification of your auditor appointment must be made within fourteen (14) days of the appointment via lodgement of the Form CL16. Lodgement of the Form CL16 is completed via email to ASIC at creditlicensing@asic.gov.au or via post to:
Australian Securities and Investments Commission
PO Box 4000
Gippsland Mail Centre VIC 3841
The auditor must meet the eligibility requirements in Regulations 18 and 19 of the National Consumer Credit Protection Regulations 2010 (Cth) (“National Credit Regulations“), namely:
- be eligible for appointment as an individual auditor or as an authorised audit company;
- not owe money or be owed money by the licensee or a related body corporate (unless exempted by particular mortgage loans);
- not be an employee, director or partner of the licensee or any other person carrying on a business that engages in credit services; and
- not carry on a credit services business.
The appointment of auditor is continuous unless:
- the licensee is no longer required to maintain a trust account;
- the auditor is deceased or ceases to engage in the business of being an auditor;
- the auditor is unable to perform their duties;
- ASIC approves of the auditor resignation; or
- ASIC approves of the request to replace the auditor.
Replacement or Resignation of Trust Account Auditor
If a trust account auditor is to be replaced, licensees are required to lodge a Form CL17 to ASIC requesting approval to replace its current trust account auditor.
If a trust account auditor has resigned, the auditor is required to lodge a Form CL18 requesting approval from ASIC to resign as auditor.
Lodgement of the Form CL17 or CL18 is completed via email to ASIC at creditlicensing@asic.gov.au or via post to ASIC.
Complying with the trust account obligations is an important requirement for credit licensees. Breaching this obligation may result in civil and criminal penalties.
Further Reading
ASIC Information Sheet 136
Complying with your trust account obligations as a credit licensee