AFIFI and Tax Practitioners Board

[2017] AATA 2037

AFIFI and Tax Practitioners Board [2017] AATA 2037 (12 October 2017)

Division:TAXATION & COMMERCIAL DIVISION 

File Number(s):2017/5340      

Re:Ahmed AFIFI  

APPLICANT

Tax Practitioners BoardAnd  

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:12 October 2017  

Place:Sydney

The stay order sought by the applicant pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 is granted, subject to the following conditions:

(a)that the applicant and his company will not, while the stay remains in place, accept any new clients;

(b)that the applicant will advise all his and his company’s existing clients in writing within 14 days of this decision that the Administrative Appeals Tribunal will decide early in 2018 whether to affirm or set aside the Board’s decision to terminate the applicant’s registration as a tax agent; and

(c)the applicant will copy to the respondent forthwith the letters sent under condition (b) including a translation of any letter not sent in the English language.

...........................[sgd].............................................

Deputy President B W Rayment

Catchwords

PRACTICE AND PROCEDURE – application for stay of decision – termination of registration as tax agent – breach of code of professional conduct – interests of persons affected by the review – stay granted

Legislation

Administrative Appeals Tribunal Act 1975, s 41(2)

Tax Agent Services Act 2009, s 2-5

Cases

Australian Securities and Investments Corporation v Administrative Appeals Tribunal [2009] FCAFC 185

REASONS FOR DECISION

Deputy President B W Rayment  

12 October 2017

1. The applicant seeks a stay of a termination of registration order made by the respondent in respect of the applicant’s registration as a tax agent. The Tribunal’s power to make such an order is conferred by s 41(2) of the Administrative Appeals Tribunal Act1975 (AAT Act).

2. The decision was made by the respondent upon several grounds, the most serious of which was that the respondent found that the applicant knowingly provided a false payment summary purportedly issued by Shakush Pty Ltd to a Ms Zaidi which, the Board found, had not been issued by that company, and that no BAS payments or income tax returns had been lodged by that company for the relevant financial year. The Board found that the applicant had provided a false payment summary to the Board itself.

3. The Board terminated the registration of the applicant as a tax agent and prohibited him from applying for registration under the Tax Agent Services Act 2009 (the Act) for two years.

4. The objects of the Act are set out in s 2-5, as follows:

   Object

   The object of this Act is to ensure that *tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct. This is to be achieved by (among other things):

   (a)establishing a national Board to register tax agents, BAS agents and tax (financial) advisers; and

   (b)introducing a *Code of Professional Conduct for *registered tax agents, BAS agents and tax (financial) advisers; and

   (c)providing for sanctions to discipline registered tax agents, BAS agents and tax (financial) advisers.

5. Part 3 of the Act deals with the Code of Professional Conduct (the Code) and empowers the Board to terminate registration in the event of breach of the Code, which is the basis of the findings challenged by the applicant in these proceedings.  It is apparent that the protection of the public interest is involved in the enforcement of the Code.

6. The applicant has been a tax agent since 1 September 2009, that is, for some eight years.

7. The application for a stay is supported by an affidavit sworn on information and belief by the applicant’s solicitor, which purports to deal with the merits of the reviewable decision.  In that affidavit it is asserted that Shakush Pty Ltd did not engage the applicant to “complete its payroll” which I assume means its payment summaries, inter alia. The solicitor asserts that the applicant was unaware that the payment summary was false and that it had been handed by Ms Zaidi to his employee.

8. The investigation of the true facts will arise on the final hearing, which will take place before me in the week beginning 15 January 2018, the earliest time when it can be heard in this Registry of the Tribunal.  Shortly a directions hearing will be fixed to prepare the matter for hearing.

9. The respondent intimated that its case may involve other allegations being made against the applicant, which will require to be pleaded and supported by evidence if they are to be asserted by the respondent.

10. I am told that the final hearing is estimated to require a hearing over three days.

11. The applicant’s affidavit sworn on 18 September 2017 states that he has dependants and approximately 602 current clients who would be inconvenienced if required to obtain the services of another tax agent in the time before these proceedings can be heard.

12. I approach the issues in these proceedings consistently with the decision of the Full Court of the Federal Court in Australian Securities and Investments Corporation v Administrative Appeals Tribunal [2009] FCAFC 185. I may make such an order if I think it is desirable in all the circumstances to do so, having taken into account the interests of any person who may be affected by the review. The first task is to identify such persons. They are the applicant, the respondent as regulator, the clients of the applicant, the dependants and employees of the applicant and his company, and the Australian Tax Office.

13. The period with which I am concerned is the period from now until early 2018 when reasons for judgment are likely to be published.  A stay is revocable if further matters come to notice in the meantime.  The applicant puts the case for a stay on the basis that he will not accept any new clients while the stay, if any, is in force.

14. Having considered the interests of the persons and bodies mentioned in the previous paragraph, and having regard to the period of time for which the applicant has hitherto practiced as a tax agent, and to what I regard as an apparently genuine dispute about the findings of the Board of the respondent, and having regard to the conditions I propose to impose, I am prepared to find that it is desirable to grant a stay, and that the stay is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

15. As such, the reviewable decision is stayed pursuant to section 41(2) of the AAT Act until further order of the Tribunal, subject to the following conditions:

    (a)that the applicant and his company will not, while the stay remains in place, accept any new clients;

    (b)that the applicant will advise all his and his company’s existing clients in writing within 14 days of this decision that the Administrative Appeals Tribunal will decide early in 2018 whether to affirm or set aside the Board’s decision to terminate the applicant’s registration as a tax agent; and

    (c)the applicant will copy to the respondent forthwith the letters sent under condition (b) including a translation of any letter not sent in the English language.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

...............................[sgd].........................................

Associate

Dated: 12 October 2017

Date(s) of hearing:	19 September & 3 October 2017
Date final submissions received:	6 October 2017
Counsel for the Applicant:	Mr I Young
Solicitors for the Applicant:	Mr E El Khoury, EMK Counsel Co
Counsel for the Respondent	Ms D Tucker
Solicitors for the Respondent:	Ms S McPherson, Tax Practitioners Board