A 2011 Treasury options paper titled, Wholesale and retail clients: Future of financial advice, also acknowledged the confusion about how the wholesale investor test applied in the context of superannuation trustees.

"There are various tests for wholesale versus retail investors under the Corporations Act 2001. Wholesale clients may have access to a wider range of investments, but they do not enjoy all of the consumer protections that apply to retail clients," ASIC stated.

"Where the financial service relates to a superannuation product, a trustee of an SMSF will be classified as a retail client under the Corporations Act unless the fund holds net assets of at least $10 million at the time the service is provided.

"If a financial service does not relate to a superannuation product, the general test for determining whether the trustee is a retail or wholesale client applies under the Corporations Act. Under the general test the circumstances in which the trustee will be a wholesale client include if the trustee has a certificate from a qualified accountant stating they have net assets of $2.5 million or if the value of the investment is at least $500,000."

In 2004, ASIC issued QFS 150 When financial services are provided to a trustee of a superannuation fund, are they provided to a retail client? which gave guidance stating that a financial service would generally relate to a superannuation product in a situation where financial services were provided to the trustee of an SMSF.

Given continuing legal uncertainty about when a financial service relates to a superannuation product, ASIC has reviewed its interpretation of when the trustee of a superannuation fund will be classified as a retail client or a wholesale client and withdrawn QFS 150, ASIC stated.

“ASIC's revised approach means that, for example, where the trustee of an existing superannuation fund receives advice about how to invest the fund’s assets, ASIC will not take action if the person providing the advice determines whether the trustee is a wholesale client based on the general test mentioned above (e.g. if the trustee has net assets of at least $2.5 million), rather than applying the higher $10 million net asset test. ASIC will adopt a similar approach to a trustee who subscribes for financial products on behalf of an existing fund,” ASIC stated.

“Although ASIC will not take action where such financial services are provided on a wholesale basis to trustees of existing superannuation funds with less than $10 million in net assets (provided that the trustee is a wholesale client under the general test), this will not affect any private rights of action that may be available to third parties. Persons providing financial services to trustees of SMSFs need to make their own commercial decisions after considering the legal risks.

“ASIC acknowledges that legal uncertainty – particularly in relation to an issue as important as whether clients should receive the benefit of the retail client consumer protections – is undesirable and supports a review of the test to ensure that it is both clear and appropriate.”

ASIC stated it will take regulatory action where financial service providers miscategorise their clients and, for example, treat investors as wholesale clients based on net assets of $2.5 million without a certificate from a qualified accountant.