Terms of Business
Terms of business
This document together with an Engagement Letter and, where applicable, any subsequent Confirmation Letter, forms the Contract between the specific Kelly Partners office delivering the services (referred to as ‘KELLY + PARTNERS’ ‘We’, ‘Us’ and ‘Our’) and our client (referred to as “you” or “your”). The terms defined in the Engagement or Confirmation Letter have the same meaning in these Terms of Business.
TERMS OF BUSINESS OF KELLY+ PARTNERS
Basis of providing our Services
We will provide the services described in the attached Engagement Letter and any subsequent Confirmation Letter. The Engagement will be taken to have been accepted and/or scope accepted or extended where you continue to instruct / request advice from, verbally or in writing, KELLY + PARTNERS to provide advice or services. It is not incumbent on KELLY + PARTNERS to continually reissue Engagement letters with a new scope nor advise you that such a new scope exists.
Our work will be based solely on the information provided, the circumstances made known to us and the assumptions set out in our correspondence. We rely on you bringing to our attention as soon as possible any changes in the information as originally presented as it may impact on our advice.
The scope of our services is limited to the work specified in our Proposal or Engagement Letter. Unless expressly stated otherwise in the Engagement Letter, the services provided do not constitute tax advice nor financial advice nor legal advice.
The preparation of your income tax return or BAS does not constitute a tax review nor tax audit, and cannot be relied upon as such. The onus is on you, the taxpayer, to self-assess and there are substantial penalties for incorrect returns. You should carefully review the income tax return or BAS to ensure that items shown are accurately stated and inform us of any amendments that are required.
While we shall endeavour to identify potential issues to the best of our ability, we shall not accept responsibility for matters not reasonably identifiable from the information provided to us as part of this Engagement.
Where we are engaged to compile financial information in respect of general purpose or special purpose financial statements, you are responsible for the reliability, accuracy and completeness of the accounting records and disclosure to us of all material and relevant information.
Changes in the law and in interpretations may take place before our advice is acted upon or may be retrospective in effect. Unless specifically stated in the engagement letter we accept no responsibility to inform you of changes in the law or interpretations affecting advice previously given by us.
Some of the matters on which we may be asked to advise on (eg employee share schemes, superannuation funds) may have tax implications for directors, employees or other related entities for which we are not responsible, unless specifically instructed to address these issues. Any advice in respect of persons or entities not specifically engaged will be general in nature, unless specifically provided for in the engagement.
Any advice provided by us during this assignment is only our opinion based on our understanding of the current law, administrative practice and our knowledge of your particular circumstances. Thus any advice and any income tax returns themselves will not necessarily be beyond challenge by the taxation authorities.
During the course of the assignment and subsequent to it, we may give oral advice in meetings and over the telephone. After a more detailed consideration of the matters discussed, we may amend the view we expressed, but are under no obligation to inform you of this. Accordingly, if we provide any oral advice, we suggest you should seek from us written confirmation of the same.
Unless specifically provided for in the engagement, the scope of our work does not include reviewing transactions in light of the application of Part IVA of the Income Tax Assessment Act 1936 and other tax anti-avoidance legislation. Generally, where Part IVA is found to apply, any tax benefits such as a tax deduction and/or deferment of income may be denied.
Limitations to the tax compliance services we provide
When completing tax returns, unless otherwise agreed in the attached Engagement Letter, our services in respect of the following schedules and disclosures are limited as follows:
Tax asset register
The Capital Allowance Schedule contains information regarding depreciating assets. This schedule is completed based on the summarised information provided by you. Our engagement excludes any work in relation to a detailed analysis of any tax depreciation schedules.
Capital Gains Tax
This engagement excludes any detailed analysis of the disclosures made in the Capital Gains Tax schedules. Unless it is separately and specifically agreed that we will perform additional work in relation to these schedules, we will complete them (if required) based solely on information provided by you.
This engagement is limited to reviewing the responses in the International Dealings Schedule. We will rely on the details provided by you in relation to the disclosures made in the International Dealing Schedule. We will not be in a position to conclude upon the accuracy of any disclosure items on this schedule. However, if in the process of preparing the income tax return we identify any issues relevant to transfer pricing, we will discuss these with you.
In addition, our limited review does not constitute an opinion as to whether the ATO will agree that you have complied with the arm’s length principle in dealings with international related parties or that you have documentation which is in accordance with the ATO’s rulings.
Where you request us to perform additional work on items contained in the above schedules, this would be considered a separate engagement.
We will report to you in accordance with the terms set out in the Engagement or Confirmation Letters. You may make copies of any reports for your own internal use but you must not provide the report or copies of it to any third party without first obtaining our written consent. Such consent will only be granted on the terms we deem appropriate which will include that we accept no duty or responsibility to any other party who may seek to rely on our report. In some cases appropriate releases from third parties may be required.
Generally, the responsibility for the accuracy of any tax returns rests with the taxpayer. Consequently, you will be responsible for ensuring that the particulars and information you provide to us are accurate and complete. We will not prepare any tax returns based on estimates you provide, unless the use of estimates is generally accepted for a particular item or calculation, or where under the circumstances it is impracticable to obtain exact data.
You will ensure that information supplied by you or on your behalf, to the best of your knowledge and belief, is not false or misleading and does not omit material particulars.
In the course of providing the services we, at our discretion, may use the resources, knowledge and information of other firms within the KELLY + PARTNERS group or third party service providers. Information, which may include personal information, may be required to be transferred to such parties. You consent to such transfer.
a. To review your ongoing needs;
b. To enhance customer service and product options;
c. To provide information and opportunities that we may believe are relevant to your financial needs;
d. To respond to your requests or queries;
e. To maintain contact with you;
f. To notify you of seminars and other events;
g. For administrative purposes;
h. To conduct surveys and seek your feedback; and
i. To meet any regulatory requirements.
4. FEES AND PAYMENT
How fees will be calculated
Fees for the Services will be charged on the basis set out in the Engagement or Confirmation Letter. Where these letters do not state the basis on which our fees will be charged, our fees will reflect time spent and such other factors as complexity, monetary values involved, specialist input required and the urgency of the matter. Goods and services tax (“GST”) at the prevailing rate will be added to and forms part of our fees.
Our total fees or hourly rates and, where applicable, out of pocket expenses (our “Billings”) are based on the currently applicable GST rate (except where we have assessed that the services to be provided GST free). If this GST rate changes, our Billings will be adjusted to reflect the change.
Any fee estimate is given in good faith but is not contractually binding.
All charges are exclusive of expenses unless the Engagement or Confirmation Letter states otherwise. We will charge you out of pocket expenses such as reasonable travel, subsistence and document handling costs (photocopying, printing, fax and courier, etc.) incurred by us (net of any applicable GST input tax credit to which we are entitled) plus GST as applicable. Any special expense arrangements will be agreed and set out in the Engagement or Confirmation Letter.
We may revise our fee scale from time to time. Rates quoted to you remain in force until next 31 December or 30 June, as appropriate. We may increase our fees for any work performed after those dates. We reserve the right to change our rates outside these dates and will communicate any such change directly to you.
Payment of Invoices
Unless specifically agreed otherwise, your obligation to pay us fees and expenses to which we are entitled, will not arise until we have issued an Engagement Letter to you that you have signed and/or when a fee account is issued to you. Where you have not signed the Engagement Letter,
but continue to instruct us, then you will be taken to have accepted the terms and conditions of the Engagement Letter issued to you and these Terms of Business.
Where an amount for GST is stated to be a component of the fees and expenses, our fee account will comply with the law specifying what is a “tax invoice” for GST purposes.
Our invoices will be issued on a monthly basis or as set out in the Engagement or Confirmation Letter. Where not specifically set out in the Engagement or Confirmation Letter, all invoices will be due for payment on engagement (50%) and on completion of the assignment (50%). However, at our discretion, we may invoice you on an interim basis, prior to the completion of an assignment. Title to work will remain with KELLY + PARTNERS until full payment for the assignment is received. KELLY + PARTNERS does not provide credit and will not deliver work on assignments until full payment is settled.
Payment of invoices can be made by cheque, EFT, direct debit, or credit card. Payments by credit card will attract a service fee equivalent to the effective merchant fee levied by the card issuer.
Use of the KELLY + PARTNERS trust account will incur a charge.
A debt collection cost will be payable by you where the account is not paid within the trading terms. Our terms are payment in advance or upon receipt of invoice. We may, at our discretion, also charge you a commercial rate of interest on accounts which are overdue by more than a month.
5. TERM AND TERMINATION
Duration of Contract
This Contract will apply from the commencement date stated in the Engagement or Confirmation Letter, if any, or where no commencement date is specified from the date of acceptance of the Contract as specified in the Engagement or Confirmation Letter.
The Contract may be terminated by either party at any time.
To afford the maximum protection to your confidential interests, all employees of KELLY + PARTNERS are employed under a service contract which contains a clause strictly forbidding the unauthorised disclosure of information.
KELLY + PARTNERS will use reasonable skill and care in the provision of the Services to you as set out in the Engagement or Confirmation Letter. The liability of KELLY + PARTNERS, its directors, employees, associates and contractors is limited by a scheme approved under Professional Standards Legislation.
Each office of Kelly Partners (Office) is a separate legal entity. Services are delivered independently by each Office. These Offices are not members of one national partnership or otherwise legal partners with each other, nor is any one Office responsible for the services or activities of any other. Kelly Partners Group Holdings Pty Ltd (KPGH) is not responsible or liable for any acts or omissions of an Office and specifically disclaims any and all responsibility or liability for acts or omissions of an Office.
An Office cannot act as agent of KPGH or any other Office, cannot obligate KPGH or any other Office, and is liable only for its own acts or omissions and not those of KPGH or any other Office. Similarly, KPGH cannot act as an agent of any Office, cannot obligate any Office, and is liable only for its own acts or omissions.
8. INDEMNITY AGAINST THIRD PARTY LIABILITY
You shall indemnify and hold harmless KELLY + PARTNERS, its directors, employees, associates and contractors from and against any loss, expense, damage or liabilities (or actions that may be asserted by any third party) that may result from any third party claims arising out of or in relation to the provision of the services or any use by you of any deliverable item under this engagement and will reimburse KELLY + PARTNERS for all costs and expenses (including legal fees on a solicitor client basis) incurred by KELLY + PARTNERS in connection with any such action or claim.
It is our practice to destroy documents belonging to us after they are more than seven years old. Your acceptance of these terms includes your consent for us to destroy any documents that strictly belong to you which have been filed amongst our own papers.
Some offices of KELLY + PARTNERS use an electronic document management system. In those offices, all documents received from clients are scanned and stored electronically. Your acceptance of these terms includes your consent for KELLY + PARTNERS to destroy any hard copy documents received from you.
10. RECORD KEEPING
All records relevant to the preparation of an income tax return must be retained by a taxpayer for a period of five years from the relevant date and these must be available for examination by the Commissioner of Taxation upon request.
Taxpayers must satisfy minimum standards of reasonable care and demonstrate “reasonably arguable positions” in relation to contentious issues in order to minimise penalty exposures. The Australian Taxation Office does not require documents to be lodged with an income tax return, any work papers and research papers prepared to support amounts documented in the return must be sufficiently documented.
In the case of capital gains tax (CGT), you are required to retain records not only until the end of five years after a CGT event happens, but also five years after any further relevant CGT event can happen which would be relevant to determining whether you have made a capital gain or capital loss from the event. Additionally, you will also need to keep those records to substantiate any carry-forward capital loss which is intended to be applied to a future capital gain.
Where you are required to maintain records and fail to do so, penalties may be imposed under the taxation law.
During our performance of the Services we may wish to send messages and/or documents to each other by e-mail. As e-mail carries with it the possibility of inadvertent misdirection, or non-delivery of confidential material, unless you notify us otherwise you consent to the use of e-mail in accordance with this clause.
Where messages are sent by e-mail, we will adopt the following procedures and require you to do likewise:
(1) If sending a confidential e-mail message, the sender will indicate if a response is not wanted in an electronic form. All risks connected with sending by e-mail commercially sensitive information relating to your business are borne by you and are not our responsibility. If you do not accept this risk, you should notify us in writing that e-mail is not an acceptable means of communication.
(2) Both parties will carry out procedures to protect integrity of data, in particular, it is the recipient’s responsibility to carry out a virus check on any attachments before launching any documents, whether received on disk or otherwise.
KELLY + PARTNERS will not be prevented or restricted by anything in this Contract from providing services for other clients.
13. PRIVACY OF PERSONAL INFORMATION
Disclosure by you of personal information to us in the course of our engagement is subject to the Privacy Act 1998 [“The Privacy Act”]. Accordingly the Services are provided on the basis that you will only disclose personal information about an individual to us:
(a) for a purpose related to the performance of the Services;
(b) provided you have made all disclosures required under the Privacy Act;
(c) provided you have obtained any consents required under the Privacy Act; and
(d) provided to do so would not otherwise breach the Privacy Act.
As we rely on you to fulfil these obligations you will indemnify KELLY + PARTNERS, its partners and staff, against any claim, loss or expense resulting from your failure to make any disclosure or obtain any consent required under the Privacy Act or otherwise to comply with the Privacy Act.
If the performance of the Services requires a third party to supply personal information to us on your request, it is your obligation to ensure that the third party complies with clauses (a) to (d) above and you will indemnify us against any claim, loss or expense resulting from that party’s failure to do so, or to otherwise comply with the Privacy Act.
This Contract comprising the Engagement or Confirmation Letter and Terms of Business forms the entire agreement between us relating to the services. It replaces and supersedes any previous proposals, correspondence, understandings or other communications whether written or oral.
Engagement Letter to take Precedence
In the event of any conflict between these Terms of Business and the Engagement or Confirmation Letter, The Engagement or Confirmation Letter will take precedence.
Neither party may, nor have the power to, assign or otherwise deal with its rights or obligations under this Contract without the prior written consent of the other party, except that KELLY + PARTNERS may without consent assign or novate this Contract to a successor of the business of KELLY + PARTNERS to which this Contract relates.
Should circumstances change and we are no longer permitted to provide a service to you because of auditor independence rules or legislation, we reserve the right to vary our engagement letter with your agreement so that we and you would not be in breach of such rules or legislation or to terminate the relevant services. Where an engagement is terminated for these reasons, you will pay for all services provided up to the date of termination.
Notices to produce documents
If we receive any legally enforceable notice or demand issued by a third party, including the Australian Securities & Investment Commission, Australian Taxation Office, Australian Stock Exchange, any government statutory body or instrumentality, or any court or tribunal in relation to or in connection with the services you agree to pay our reasonable professional costs and expenses (including solicitor client expenses) in complying with or challenging any such notice or demand to the extent that our costs and expenses are not recovered or recoverable from the party issuing the notice or demand.
15. FORCE MAJEURE
Neither of us will be liable to the other for any delay or failure to fulfil their obligations under this Contract to the extent that any such delay or failure arises from causes beyond their control, including but not limited to fire, floods, acts of God, acts of regulations of any governmental or supranational authority, war, riot, terrorist activities, strikes, lockouts and industrial disputes.