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Is an AFSL required?

THE QUICK ANSWER: If you are ‘carrying on a financial services business’ you require an AFSL. If you operate without one, you may be prosecuted, fined, jailed, have a liquidator appointed and your Fund wound up. You can avoid this by appointing an AFS licensee that has the appropriate authorisations to act as the Trustee of the Fund and to authorise you to provide certain of the financial services required.

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Why a unit trust and not a company?

THE QUICK ANSWER: A company is a costly and restrictive vehicle through which to raise private capital and all its shareholders must be listed on a public register. A unit trust operates under simpler compliance requirements. It is much easier to manage, implement changes, and distribute funds and the registry of investors is private.

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ASIC registered or unregistered fund?

THE QUICK ANSWER: Wholesale funds are not required to be registered. Retail funds are required to be registered. Where a fund is comprised of wholesale investors, the fund will be a wholesale fund and will not require registration with ASIC.

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Product Disclosure Statement or Information Memorandum?

THE QUICK ANSWER: A retail fund is required to be registered with ASIC and a PDS must be issued. A wholesale fund can be registered or unregistered and it is advisable to issue an IM to prospective investors setting out sufficient information so that an investor may make an informed decision about whether to invest.

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Jurisdictional issues

THE QUICK ANSWER: Applications to invest in a fund will only be accepted in Australia.

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Taxation implications

THE QUICK ANSWER: There isn’t one. Taxation implications of funds are varied and complex. We strongly recommend that you obtain professional taxation advice as to the likely treatment of each fund you are considering initiating.

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The obligations of an AFS Licensee and Trustee

THE QUICK ANSWER: A trustee must always act honestly and in the best interests of investors.

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Glossary and Terminology

Some of the key industry terminology you may encounter.

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ASIC

ASIC www.asic.gov.au

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