These terms & conditions (Terms) apply in respect to the audit protection subscription service (Subscription) provided by Kelly Partners Care Pty Ltd ABN 28 685 127 084 (we or us) to our Client (you or your). 

1. SUBSCRIPTION

The Subscription is a fixed Fee annual subscription that reimburses you for Professional Fees, up to the Limit incurred in response to a Tax Audit of your Family Group and/or SMSF which occurs during the Subscription Period, subject to these Terms. A Tax Audit is deemed to have occurred on the day a written correspondence is issued by an authority in respect of a Tax Audit for an entity in your Family Group.

Standard Subscriptions apply to and across all entities in your Family Group excluding SMSF. A SMSF Subscription must be purchased separately for each SMSF. The Subscription is only available to our Clients. We reserve the right to deny any application for Subscription that is not in conformity with these Terms. Any amount paid for such Subscription will be refunded in full.

2. TIER

The Subscription is separated into three subscription Tiers (each a Tier). Each Tier is based on Turnover. You may purchase a Subscription in the Tier which corresponds to your Turnover or a higher Tier but not in a lower Tier.

The Tiers are as follows:

Subscription Tier	Turnover
Tier 1	Less than $1,000,000
Tier 2	Between $1,000,001 and $10,000,000
Tier 3	Between $10,000,001 and $50,000,000
SMSF	All self-managed superannuation fund (SMSFs) regardless of size

3. FEE

Each Tier is subject to a different Fee. Please refer to our website for the current Fee schedule. All Fees are subject to GST. Unless otherwise stated as being inclusive of GST, applicable GST will be added to the Fee.

The Fee is payable annually in full at the beginning of the Subscription Period. On joining or upon renewal, the applicable Fee will be direct debited from your nominated bank account or credit card. Any failed or rejected payment may incur an administrative charge. A Subscription is not valid until the Fee is paid in full.

4. SCOPE

Only the Professional Fees incurred in relation to and during a Tax Audit, subject to the Exclusions, will be covered under your Subscription up to the relevant Limit. Your Subscription does not cover any costs incurred where they relate to or are incurred in respect of an exclusion (Excluded Costs).  You will not be entitled to any reimbursement of Excluded Costs. Excluded Costs do not count towards your annual Limit.

5. LIMIT

The annual Limit for each Tier is as follows:

Subscription Tier	Limit
Tier 1	$15,000
Tier 2	$30,000
Tier 3	$30,000
SMSF	$15,000

 

The Limit applies across all entities in your Family Group under the same Subscription. Once the Limit is exhausted, no further payment will be made for the remainder of that Subscription Period. The annual Limit will be reset at the end of each Subscription Period and any unused Limit will be automatically forfeited.

6. EXCLUSIONS

The following activities, even if taken by an authority, do not form part of a Tax Audit:

1. a review or audit which commenced before the start of your Subscription Period or after the end of your Subscription Period;
2. activities involving an enquiry or a review pertaining to a relevant entity’s maintenance of its industry status, license to conduct or operate its business, compliance or maintain membership or any form of occupational health and safety type compliance or similar requirements; 
3. any activity involving a government authority or agency gathering information or data that is not part of a relevant entity’s Tax Audit of a Return;
4. any activity involved in the familiarisation, education, training, application, implementation, process, or operation of:
   1. any amendments or changes to existing legislation or industry regulations; or
   2. the introduction of new legislation or industry regulations; 
5. time spent on communication with the Australian Tax Office that is not related to or in respect of a Tax Audit;
6. the outcome of the Tax Audit results in an authority imposing, or seeking to impose, a penalty due to your intentional disregard of a designated tax or your reckless conduct regarding its application;
7. a review or audit which::
   1. relates to customs legislation;
   2.  relates to a refund or claim for tax or duty relief arising out of an arrangement, facility, financial structure, or the like, adopted for the principal purpose of obtaining that refund or relief, unless the arrangement has received prior written approval from the relevant authority or agency before being offered to the relevant entity or the general public;
8. any enquiry from an Authority which:
   1.  is not related to either an identified intention to conduct a Tax Audit or is not directed at obtaining information or data for a possible future Tax Audit;
   2. relates to any routine enquiries which are not identified as being either preliminary to or relating to a Tax Audit of a return;
9. an audit or review which arose from your failure to:
   1. lodge the Return within the time limit prescribed by law or within the extended time granted by an authority;
   2. pay all taxes by the due date or within any extension of time granted by the Authority;

Any costs incurred in respect of or in relation to following circumstances are also specifically excluded from the Subscription:

1. a Return that was:
   1. not prepared or lodged by Kelly+Partners or another registered tax agent;
   2. lodged or submitted dishonestly or fraudulently;
2. there was a false or misleading statement made to an authority or a fraudulent act or fraudulent omission or statement was made to an authority and such act, omission, or statement was made deliberately or with wilful intent;
3. an authority or its authorised representative has assessed a relevant entity’s behaviour to be a case of deliberate evasion or recklessness;
4. a relevant entity failed to:
   
   1. notify the Authority any error or deficiency with the information that was provided within 10 business days of you discovering the error or deficiency with the information;
   2.  respond to the Authority within the time it has specified for you to give your response or where there was improper, unwarranted or justified refusal or failure to comply with any lawful request made by the Authority
5. the costs incurred were tax, penalty tax, costs, interest, fine, or penalty imposed by or sought to be imposed by an authority;
6.  the matter involved any criminal prosecution of a relevant entity.

7. PAYMENT

We may choose to pay the cost incurred in respect of an eligible Tax Audit directly to the service provider(s) in payment for their invoice(s). This may include payment to office(s) of Kelly Partners Group for services rendered. You irrevocably consent to us making direct payments of these invoices on your behalf up to the Limit.

8. TERM

Upon payment of the Fee, your Subscription will be valid for the duration of the Subscription Period. Your Subscription will be automatically renewed at the end of each Subscription Period, subject to your payment of the Fee for the subsequent Subscription Period. 

9. TERMINATION

You can terminate or cancel your Subscription for any reason or no reason by notifying us at least sixty (60) days before the end of the Subscription Period (Notice Period). This can be done by submitting a written request of termination to your Engagement Partner. The effective date of termination or cancellation will be on the last day of the current Subscription Period (or if you notify us less than the notice period, the last day of the next Subscription Period.) 

If you choose to terminate or cancel during your Subscription Period, you will have access to your Subscription until the end of your then current Subscription Period. We do not provide refunds or credits for any partial Subscription Period unless otherwise required by law.

10. LIMITATION OF LIABILITY

Our liability to you for any breach by us of these Terms is, as permitted by law, limited to the Fee paid by you during the 12-month period preceding the event or occurrence giving rise to such liability. This limitation does not apply to liability that cannot be excluded or limited by law. In no event will we be liable for any consequential, incidental, indirect, special, exemplary, or punitive damages or losses or expense (including but not limited to business interruption, lost business, loss of revenue, or lost profits) even if it has been advised of the possibility of such damages.

11. PRIVACY OF PERSONAL INFORMATION

In handling personal information, we comply with the Notice Period, as amended from time to time, and with the Australian Privacy Principles.

Our Privacy Policy sets out how we collect, hold, use and disclose your personal information. Please review our Privacy Policy for further information at www.kellypartners.com.au/privacy.php

12. DEFINITIONS & INTERPRETATION

Designated Tax means any tax assessable in accordance with a designated tax provision.

Designated Tax Provision means the provisions, as amended, of the:

1. Income Tax Assessment Act 1936 (Cth)
2. Income Tax Assessment Act 1997 (Cth)
3. Fringe Benefits Tax Assessment Act 1986 (Cth)
4. Fringe Benefits Act 1986 (Cth)
5. A New Tax System (Goods and Services Tax) Act 1999 (Cth)
6. Superannuation Guarantee (Administration) Act 1992 (Cth)
7. the Land Tax Act relevant to the State or Territory where a Relevant Entity have a Tax Audit; or
8. the Payroll Tax Act relevant to the State or Territory where a Relevant Entity have a Tax Audit.

Authority includes:

1. the Australian Taxation Office;
2. a revenue office of an Australian State or Territory;
3. a Australian Commonwealth, State, or Territory government department, body or agency, duly authorised to conduct a tax audit, excluding Australian Prudential Regulation Authority.

Client means a current client of an office of the Kelly Partners Group with an unexpired engagement for taxation services.

Engagement Partner means the primary contact(s) for your engagement with an office of the Kelly Partners Group.

Excluded Costs has the meaning given to it in clause 4.

Exclusion means the matters and circumstances described in clause 6.

Family Group means you, individuals in your immediate family, and entities which you control (excluding self-managed superannuation fund) which is a Client.

Fee means the annual Fee for your Subscription based on the applicable Tier as published on our website from time to time.

Kelly Partners Group means the accounting and taxation businesses operating under the branding of “Kelly+Partners Chartered Accountants” in Australia.

Limit means the maximum amount which you will be reimbursed for the Professional Fees incurred in respect of a Tax Audit for each Subscription Period based on your Tier as specified in clause 5.

Notice Period has the meaning given to it in clause 9.

Privacy Act means Privacy Act 1988 (Cth).

Professional Fees means fees costs and disbursements payable to a registered tax agent or professional person in connection with a Tax Audit by an Authority but does not include any fees, costs or disbursements:

1. that are related to the provision for administrative services;
2. that relate to any subsequent objection lodged with an Authority in respect of a Tax Audit;
3. that relate to or associated with the preparation of any accounts, financial statements or documents which would or should have ordinarily or prudently prepared prior to or at the time that the lodgement of any Return or documents was required to be lodged;
4. incurred after the Tax Audit has been completed; or
5. incurred after 12 months after the commencement date of a Tax Audit other than where such delay is completing the Tax Audit was caused primarily by the Authority.

Relevant Entity means, as the case may be, an entity in your Family Group that is covered under the Subscription or your SMSF.

Return means any return legally required to be and that is actually lodged with an Australian commonwealth, state or territory government department, body, or agency by or for a relevant entity.

SMSF means self-managed superannuation fund.

Standard Subscription means a Tier 1, Tier 2, or Tier 3 subscription.

SMSF Subscription means the subscription Tier titled “SMSF” which is a subscription that is only applicable for SMSF.

Subscription Period means the period commencing from the later of the date of payment of your Fee and 1 July of the current year and ending on 30 June of the subsequent year.

Tax Audit includes:

1. an audit by an authority of a Return in respect of a relevant entity’s liability to pay any designated tax (including the amount of tax payable or refundable) following lodgement of a Return of that designated tax;
2. any official inquiry, investigation, examination, or review undertaken by an authority in respect of a relevant entity’s liability to pay any designated tax (including the amount of tax payable) following the lodgement of a Return for that designated tax;
3. a workers’ compensation wage audit or investigation by an authority in respect of a relevant entity’s liability to pay a workers’ compensation premium; or
4. any official inquiry, investigation, examination, or review undertaken by an authority in respect of a relevant entity’s obligations to comply with obligations under a designated tax provision;
5. for SMSF only: auditor/actuary contravention reports in respect of a SMSF; or
6. for SMSF only: any audit of a SMSF for the purposes of determining any matter relating to that fund or its trustees’ compliance with any of the provision of the Superannuation Industry (Supervision) Act 1993 (Cth).

Tier has the meaning given to it in clause 2.

Turnover means the aggregate income and revenue of all entities in your Family Group, excluding any proceeds from the sale of a capital assets, as reported in the income tax returns last lodged with the Australian Taxation Office for the financial year immediately prior to the commencement of the Subscription Period.

13. GENERAL

The Terms and your online application together set out the entire agreement and understanding between you and us relating to the Subscription. The Terms replace and supersede any previous agreements, proposals, correspondence, understandings, or other arrangements, statements, or representations whether written or oral as to any facts or matters relating to you or to us or the Subscription.

Amendment

We reserve the right to amend our Terms from time to time without notice. Any amendment to the Terms will apply from the time of your renewal. Your renewal of the Subscription will constitute your acceptance of the changes.

Severability

If any term or part of a term is found to be illegal or unenforceable, it may be severed from these Terms, and the remaining provisions will continue in force.

Governing law

The Terms are governed by and must be construed in accordance with the laws of New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.

14. HOLE IN ONE BONUS

We cover your clubhouse drinks up to $1,000 in the event of a hole in one achieved by You or a member of your Family Group during an official competition round. Your bar receipt and a scorecard signed and dated by your club or match secretary must be submitted. This bonus offer may only be claimed once per each Family Group in each Subscription Period.