ALBERT KUAN and TAX PRACTITIONERS BOARD - [2013] AATA 254

CATCHWORDS – BAS AGENT – REGISTRATION – application for renewal of registration as BAS Agent granted for period of 12 months – no rejection of application – Tribunal without power to review a decision granting registration.

Administrative Appeals Tribunal Act 1975, s 25
Customs Act 1901, Part XI
Income Tax Assessment Act 1936, s 251L
Income Tax Assessment Act 1997, s 995-1
Taxation Administration Act 1953, Part 2-5 of Sch 1
Tax Agent Services Act 2009, ss 2-5, 20-5, 20-10, 20-20, 20-25, 20-40, 20-50, 50-5, 70-10, 90-1, 90-5, 90-10
Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009, s 3, Sch 2, items 5, 14, 17, 18

Tax Agent Services Regulations 2009, r 7, Div 1 of Part 1A, Part1 of Sch 2 and items 101, 102, 103

TPB Information Sheet TPB(1) 04/2011 BAS agent educational qualification requirements

DECISION AND REASONS FOR DECISION [2013] AATA 254

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          2013/0572
GENERAL ADMINISTRATIVE DIVISION     )

ReALBERT KUAN
Applicant

AndTAX PRACTITIONERS BOARD
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  26 April 2013
Place:  Melbourne

Decision:The Tribunal:
(1)decides that it does not have jurisdiction to review the decision made by the Tax Practitioners Board on 4 January 2013 granting the applicant’s application for registration as a BAS agent under the Tax Agent Services Act 2009 until 1 January 2014; and
(2)dismisses the applicant’s application for review of that decision lodged in the Tribunal on 5 February 2012.
_(sgd) S A Forgie_
Deputy President

REASONS FOR DECISION

On the commencement of the Tax Agent Services Act 2009 (TASA) on 1 March 2010, Mr Kuan was taken to be a registered BAS[1] agent within the meaning of that Act for a two year period until 29 February 2012. That was the effect of item 5 of Schedule 2 to the Tax Agents Services (Transitional Provisions and Consequential Amendments) Act 2009 (TAS Transitional Act). Before the expiration of the term of his registration, Mr Kuan lodged an application for registration as a BAS agent under TASA for a period of at least three years as provided for in s 20-25(4). The Tax Practitioners Board (Board) decided on 4 January 2013 to grant his application for registration for a period expiring on 1 January 2014. When it was not satisfied that Mr Kuan met the prescribed qualifications as required by s 20-5(1)(b) of TASA, the Board chose a lesser period as provided for in item 14 of the TAS Transitional Act.

[1] The acronym “BAS” stands for “Business Activity Statement”: s 90-1(2) of TASA when read with the Note to the definition of “BAS amounts” in s 995-1(1) of the Income Tax Assessment Act 1997 and s 2-45, which provides that Notes form part of that latter legislation.

Mr Kuan applied for review of the Board’s decision not to grant his registration for a longer period. I have decided that, contrary to the Board’s view that there is a standard option and a transitional option for renewal of a person’s registration as a BAS agent, TASA provides for only one option. That is by means of an application lodged under s 20-20 of TASA and decided by the Board under s 20-25 of the same legislation. The transitional provisions in the TAS Transitional Act affect the decision that the Board must make but, except in relation to the imposition of conditions under items 5(3) or 5(4), it makes its decision under s 20-25 of TASA. As no conditions were imposed, items 5(3) and 5(4) are not relevant in this matter.

It follows that the only relevant provision providing for applications to be made to the Tribunal for review of a decision is found in s 70-10(a) of TASA. That provides that an application may be made to the Tribunal for review of a decision of the Board to reject an application for registration or for the renewal of registration or of a decision imposing conditions to which the registration is subject. The Board did not impose any conditions. As Mr Kuan could only make one application for registration and as the Board has granted his application, it cannot be said that it has rejected it.

The Board’s decision that he does not meet the prescribed qualifications does not amount to a rejection of his application and nor does the Board’s decision to grant him a period of registration less than that he sought. The decision that he does not meet the prescribed qualifications necessarily underpins the Board’s decision to grant his application but to do so for a shorter period. That is the decision that prescribes the limits of Mr Kuan’s registration as a BAS agent. It is a decision made under s 20-25. Section 70-10 provides for review of the decision made under s 20-25 only when it is a decision to reject an application. It does not provide for review of any other decision made under that section. In particular, it does not provide for review of a decision to grant an application for registration or for decisions that underpin, or lead to, that decision. Therefore, Mr Kuan is not entitled to apply for review of the Board’s decision and the Tribunal does not have power to review it.

THE SUBMISSIONS

Mr Kuan submitted that the Tribunal has jurisdiction to review the Board’s decision. It has power to review a decision to refuse an application for registration as a BAS agent. He made a standard application for registration as a BAS agent and the Board granted him a transitional application only. Mr Kuan regarded the Board’s decision as a rejection of his standard application.

On behalf of the Board, Mr Brown described the structure of the scheme of registration of BAS agents introduced with effect from 1 March 2010. The scheme requires those who are registered to meet certain minimum educational standards and to hold minimum qualifications. It is structured so that those who have been working as BAS agents before 1 March 2010 have three years within which to obtain the necessary qualifications.

Mr Brown referred me to s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) as the starting point in identifying the decisions that may be reviewed by the Tribunal. The particular decisions that may be reviewed are identified in a wide range of legislation. In this case, the relevant legislation is TASA and the relevant provision of that legislation is s 70-10. That section provides that the Tribunal may review, among others, decisions of the Board to reject an application for registration as a BAS agent or to grant it but subject to conditions. It does not provide for review of a decision to grant an application for registration as a BAS agent but to do so under the transitional provisions set out in the TAS Transitional Act. The TAS Transitional Act also provides for an application to be made to the Tribunal to review certain decisions but none permits an application to be made in respect of a decision of the sort made by the Board in this case.

LEGISLATIVE BACKGROUND

Regulation of provision of BAS services before 1 March 2010

Until 1 March 2010, Tax Agents’ Boards were given responsibility under Part VIIA of the Income Tax Assessment Act 1936 (ITAA36) for the registration of tax agents. Section 251L(1) provided that a person who was not a registered tax agent must not knowingly or recklessly demand any fee for, in summary, giving advice about a taxation law or preparing or lodging documents under that law on behalf of a taxpayer.[2]
[2] A barrister or solicitor acting in the course of his or her profession was excluded from the prohibition: ITAA36; s 251L(8).

A person was excluded from this prohibition if providing a BAS service in one or other of four situations. Two of the four circumstances in which a person providing a BAS service was excluded from the prohibition in s 251L(1) occurred if the person was a member (other than a student or retired member) of a recognised professional association[3] or was a bookkeeper working under the direction of a registered tax agent.[4] The other two circumstances occurred by reference to the type of BAS service provided by the person as well as the role in which the person provided that service. The first occurred if a person provided a payroll service to an employer and the BAS service was provided under Part 2-5 of Schedule 1 to the Taxation Administration Act 1953 (TAA).[5] The other occurred if the person was a customs broker licensed under Part XI of the Customs Act 1901 (Customs Act) and the BAS service related to imports or exports to which an indirect tax law related.[6]
[3] ITAA36; s 251L(6)(a) Unless an organisation is a charitable or public education institution meeting the requirements of s 251LA(1)(b), a “recognised professional association” is an organisation that meets the requirements of ss 251LA(2)-(10).
[4] ITAA36; s 251L(6)(b)
[5] ITAA36; s 251L(6)(c)
[6] ITAA36; s 251L(6)(d)

A “BAS service” is any one of:
“(a)preparing or lodging an approved form about a taxpayer’s liabilities, obligations or entitlements under a BAS provision;
(b)giving advice about a BAS provision;
(c)dealing with the Commissioner or a person who is exercising powers or performing functions under a taxation law in relation to a BAS provision.”[7]
[7] ITAA36; s 251L(7)

The expression “BAS provisions” means:
“(a) Part VII of the Fringe Benefits Tax Assessment Act 1986; and
(b)the *indirect tax law; and
(c)Parts 2-5 and 2-10 in Schedule 1 to the Taxation Administration Act 1953 (which are about the PAYG system).”[8]

Regulation of provision of BAS services after 1 March 2010

[8] ITAA36; s 251A and Income Tax Assessment Act 1997; s 995-1(1) “Indirect tax law means any of the following: (a) the *GST law; (b) the *wine tax law; (c) the *luxury car tax law; (d) the *fuel tax law.”: ITAA97; s 995-1(1).

A. Outline

Since 1 March 2010, the provision of tax agent services has been regulated by TASA. In general terms and subject to certain exceptions and qualifications in relation to legal practitioners, a person must be registered in order to provide tax agent services.[9] The expression “tax agent service” is given a broad meaning by s 90-5.[10] Services specified in r 13(1) of Part 5 of the the Tax Agent Services Regulations 2009 (Regulations) are not tax agent services but it is not relevant to specify them here.[11] A “tax agent service” is defined in s 90-5(1) as:
[9] TASA; s 50-5
[10] TASA; s 90-1
[11] TASA; s 90-5(2)
“… any service:
(a)that relates to:
(i)ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *taxation law; or
(ii)advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a taxation law; or
(iii)representing an entity in their dealings with the Commissioner; and
(b)that is provided in circumstances where an entity can reasonably be expected to rely on the service for either or both of the following purposes:
(i)to satisfy liabilities or obligations that arise, or could arise, under a taxation law;
(ii) to claim entitlements that arise, or could arise, under a taxation law.”

Part 5 of TASA provides for civil penalties for conduct by unregistered persons such as advertising tax agent services and representing themselves as registered tax agents or registered BAS agents. In the context of taxation services other than BAS services, for example, a person contravenes s 50-5(1) if providing a service that he or she knows, or ought reasonably know, is a tax agent service and charges or receives a fee or reward for doing so.[12]
[12] Exceptions apply if the tax agent service is provided as a legal service: TASA; s 50-5(1)(e)

In the case of a person providing and charging for a service that he or she knows, or ought reasonably know, is a BAS service while not a registered tax agent or a registered BAS agent, that person is liable to a civil penalty under s 50-5(2) of TASA.[13] A “registered BAS agent” is an entity registered as a BAS agent.[14]
[13] Exceptions apply if the BAS service is provided as a legal service (TASA; s 50-5(1)(d)) or relates to imports or exports to which an indirect law applies and the person is a customs broker under the Customs Act.
[14] TASA; s 90-1(1)

A “BAS service” is a particular type of tax agent service and is defined in s 90-10. Again, services specified in the Regulations are not tax agent services but it is not relevant to specify them here.[15] A “BAS service”:
[15] TASA; s 90-10(2)
“… is a *tax agent service:
(a)that relates to:
(i)ascertaining liabilities, obligations or entitlements of an entity that arise, or could arise, under a *BAS provision; or
(ii)advising an entity about liabilities, obligations or entitlements of the entity or another entity that arise, or could arise, under a BAS provision; or
(iii)representing an entity in their dealings with the Commissioner in relation to a BAS provision; and
(b)that is provided in circumstances where the entity can reasonably be expected to rely on the service for either or both of the following purposes:
(i)to satisfy liabilities or obligations that arise, or could arise, under a BAS provision;
(ii)to claim entitlements that arise, or could arise, under a BAS provision.”[16]
[16] TASA; s 90-10(1)

B. The Tax Practitioners Board

TASA provides for the establishment of the Board in place of the Tax Agents Boards. Its functions include administration of the system established under TASA for the registration of registered tax agents and BAS agents. The Board is a central plank in an Act intended:
“… to ensure that *tax agent services are provided to the public in accordance with appropriate standards of professional ethical conduct. This is to be achieved by (among other things):
(a)establishing a national Board to register tax agents and BAS agents; and
(b)introducing a *Code of Professional Conduct for *registered tax agents and BAS agents; and
(c)providing for sanctions to discipline registered tax agents and BAS agents.”[17]

C. Requirements that must be met for registration as a registered BAS agent

[17] TASA; s 2-5

C.1 Eligibility for registration

An individual is eligible for registration if over the age of 18 years and the Board is satisfied that:
“(a) the individual is a fit and proper person; and
(b)the individual meets the requirements prescribed by the regulations (including, but not limited to, requirements relating to qualifications and experience) in respect of registration as a registered tax agent or BAS agent.[18]
[18] TASA; s 20-5(1)

C.2 Requirement relating to being a fit and proper person

Section 20-15 sets out the matters to which the Board must have regard in deciding whether an individual is a fit and proper person. They are directed to the individual’s good fame, integrity and character.

C.3 Requirements relating to qualifications and experience

The requirements that an application for registration as a registered BAS agent must meet are set out in Part 1 of Schedule 2 to the Regulations.[19] An individual applying for registration need meet only one of the two set out in that Part.[20] The first set of requirements relates to accounting qualifications:
“A requirement is that:
(a)the individual has been awarded at least a Certificate IV Financial Services (Bookkeeping), or a Certificate IV Financial Services (Accounting), from:
(i)a registered training organisation; or
(ii)an equivalent institution; and
(b) has successfully completed a course in basic GST/BAS taxation principles approved by the Board; and
(c)the individual has undertaken at least 1 400 hours of relevant experience in the past 3 years.”[21]
[19] Regulations; r 7
[20] TASA; s 20-5(1)(b) and Regulations; r 7
[21] Regulations; Schedule 2, item 101

Item 102 sets out the second set of requirements prescribed by the Regulations for the purposes of s 20-5(1) of TASA. In so far as it relates to a registered BAS agent:
“A requirement is that:
(a)the individual has been awarded at least a Certificate IV Financial Services (Bookkeeping), or a Certificate IV Financial Services (Accounting), from:
(i)a registered training organisation; or
(ii)an equivalent institution; and
(b) has successfully completed a course in basic GST/BAS taxation principles approved by the Board; and
(c)the individual is a voting member of:
(i)a recognised BAS agent association; or
(ii)…; and
(d)the individual has undertaken at least 1 000 hours of relevant experience in the past 3 years.
Note The Board may approve a course by an approval process, an accreditation scheme, or by other means.”

Both sets of requirements require an individual to have undertaken a period of “relevant experience”. For the purposes of paragraph (c) of item 101 and paragraph (d) of item 102, item 103 of Schedule 2 sets out the type of work that will be regarded as meeting that description.

C.4Requirements relating to membership of a recognised BAS agent association

The Regulations provide for a system allowing the Board to accredit professional associations for the purposes of recognising an individual’s professional qualifications and experience.[22] Division 1 of Part 1A of the Regulations when read with Part 1 of Schedule 1 to them sets out that system in relation to the recognition of a recognised BAS agent association.
[22] TASA; s 20-10

D.Application for registration, renewal of registration and determination by Board

Part 2 of TASA sets out the way in which a person applies for registration. A person may apply to the Board for registration, including renewal of registration, as either a registered tax agent or a registered BAS agent.[23] The application must comply with the requirements of s 20-20 of TASA.
[23] TASA; s 20-20(1)

The Board must decide whether to grant or reject an application for registration. If it grants an application, the Board must then determine the period of registration. That period must be for at least three years.[24] Provided the application is not an application for renewal of registration, the Board must make its decision within six months of receiving the application.[25] If the application is for renewal of registration and has been made within the time limits specified in s 20-50, TASA does not specify any particular period within which the Board must make its decision. While waiting for the Board’s decision, the registration continues.[26]
[24] TASA; s 20-25(4)
[25] TASA; ss 20-25(1) and (2)
[26] TASA; s 20-50(3)

The Board may grant an application but may decide to grant it subject to one or more conditions.[27] If it does so, that condition must relate to the subject area in respect of which the person provides tax agent services.[28] Where the application has been made by an individual, the Board must have regard to the requirements prescribed by Part 1 of Schedule 2 to the Regulations in imposing such a condition.[29] The Board may vary a condition to which a registered BAS agent’s registration is subject if, on an application to vary, it is satisfied that it is appropriate to do so.[30]
[27] TASA; s 20-25(5)
[28] TASA; s 20-25(6)
[29] TASA; s 20-25(7)(a)
[30] TASA; s 20-40(1)

The Board is obliged under s 20-30(1) of TASA to notify a person of its decision to grant or reject that person’s application for registration. At the time it gives that notice or at some later date, it may give the person a written notice requiring the person to maintain professional indemnity insurance.[31]
[31] TASA; s 20-30(3)

TASA also deals with the termination of the registration of a registered tax agent or registered BAS agent. It does so in Parts 3 and 4 in relation to a range of issues beyond simply a failure to comply with a condition of registration. It is not relevant to do more than note that there are provisions and that reference is made in s 20-45 of Part 2 to circumstances that may affect registration.

E. Review of Board’s decisions

Section 70-10 provides for review of decisions made by the Board. It does so by identifying particular decisions of the Board that are reviewable rather than by providing that all of its decisions are reviewable. In so far as the review rights are relevant to this matter, s 70-10 provides:
“An application may be made to the Administrative Appeals Tribunal for review of any of the following decisions of the Board:
(a)a decision under section 20-25:
(i)to reject an application for registration (including renewal of registration); or
(ii)to specify a condition to which registration is subject;
(b)-(h)…”

The transition between regulation under ITAA36 and under TASA

A. Item 5: taken to be registered for two years from 1 March 2010

The transition between regulation of tax agents and the like under ITAA36 to the regulation of registered tax agents and registered BAS agents under TASA is governed by the TAS Transitional Act. Schedule 2 of the TAS Transitional Act sets out the relevant provisions.

Item 2 of Schedule 2 is concerned with the continuation of registration of those previously registered as tax agents under ITAA36. It continues that registration in force and makes provision for those who were suspended at the time TASA came into operation. Mr Kuan was not registered as a tax agent under ITAA36.

Before 1 March 2010, Mr Kuan was providing a BAS service within the meaning of s 251L(7) of ITAA36. He was also a person to whom s 251L(6) applied.[32] During the six month period following 1 March 2010, Mr Kuan notified the Board of both of these matters. The effect of his giving that notification was that he was taken to be a registered BAS agent within the meaning of s 20-25 of TASA for two years from 1 March 2010. That is the effect of item 5(1) of Schedule 2 to the Transitional Act.
[32] See [11] above

Even if a person is taken to be a registered BAS agent within the meaning of TASA for a two year period, the Board is not without power. It may decide, in accordance with TASA, to impose conditions on the person’s registration and/or to require that person to maintain professional insurance “as if the entity had applied for registration and the Board had decided to grant the application.”[33] This is the effect of item 5(3).

B.Item 14: applications for registration as a registered BAS agent by those subject to item 5 and not satisfying prescribed requirements

[33] TAS Transitional Act; s 3 and Schedule 2; item 5(4)

Item 14 of Schedule 2 to the TAS Transitional Act is headed “Special rule for applications for registration as a registered BAS agent”. In so far as it applies to an application for registration by an individual, item 14(1) provides:
“If:
(a)an entity applies for registration as a registered BAS agent under section 20-20 of the new law before the end of the 3 year period beginning immediately after commencement; and
(b)the entity would be eligible for registration but for the operation of:
(i)paragraph 20-5(1)(b) of the new law (which requires the Board to be satisfied of requirements prescribed by regulations, including requirements in relation to qualifications and experience in respect of registration as a registered BAS agent); or
(ii)…; and
(c)the Board is satisfied that the entity had been providing BAS services to a competent standard for a reasonable period before making the application;
then, despite paragraph 20-5(1)(b), (2)(c) or (3)(d) of the new law, the entity is eligible for registration.”[34]
[34] The reference to the “new law” is a reference to TASA: TAS Transitional Act; s 3 and Schedule 2; item 1(1).

Item 14(2) deals with the situation in which a person has been taken to be a registered BAS agent under item 5 of Schedule 2 and that person is eligible for registration under item 14(1). The effect of item 14(2) is that the period that the Board may determine under s 20-25(4) as the period of registration must be at least 12 months. That is despite the provision in s 20-25(4) that the period must be at least three years.

C. Review of Board’s decisions

Item 18 of Schedule 2 to the TAS Transitional Act provides for review of certain decisions made under ITAA36 as well as under its own provisions. Provision is made for review of a decision by a Tax Agents’ Board under ITAA36 in certain circumstances and for decisions made by the Board decided in accordance with ITAA 36 but under items 6(1)(c), 7(1)(c), 7(5)(c), 8(1)(c), 9(1)(c) and 9(5)(c) of TASA.[35] Each of those items is concerned with applications for registration or re-registration as a tax agent made under ITAA36 and not decided by a Tax Agents’ Board at the commencement of TASA. Mr Kuan has not made an application that is in that situation.
[35] TAS Transitional Act; s 3 and Schedule 2; item 18(1)(a)-(g)

Item 18(1) also provides that an application may be made to the Tribunal for review of a decision by the Board to cancel registration of an entity after an investigation conducted according to item 17 of Schedule 2 to the TAS Transitional Act.[36] That situation does not arise in this case.
[36] TAS Transitional Act; s 3 and Schedule 2; item 18(1)(h)

Item 18(2) of the TAS Transitional Act then sets out a number of decisions made by the Board in respect of which an application may be made to the Tribunal. Referring only to those provisions, to which I have referred above, item 18(2) provides:
“To avoid doubt, an application may be made to the Administrative Appeals Tribunal under section 70-10 of the new law for review of any of the following decisions of the Board:
(a)a decision under section 20-25 of the new law, as applied by one of the following provisions of this Schedule, to specify a condition to which registration is subject:
(i)…
(ii)paragraph 5(3)(a);
(iii)-(viii)…
(b)a decision under section 20-30 of the new law, as applied by one of the following provisions of this Schedule, to require professional indemnity insurance to be maintained:
(i)…
(ii)paragraph 5(3)(b);
(iii)-(viii)…
(c)a decision under subsection 60-125(4) of the new law, as applied by subparagraph 17(1)(b)(ii) of this Schedule, to extend the period of time within which an investigation is to be completed.”

Paragraphs 5(3)(a) and 5(3)(b) refer respectively to the Board’s imposition of conditions to which a person’s registration is subject and to its requirement that the person maintain professional indemnity insurance.

FACTUAL BACKGROUND

Mr Kuan was first registered as a BAS agent under item 5 of Schedule 2 to the TAS Transitional Act. Consequently, he was taken to be registered as a BAS agent from 1 March 2010 to 29 February 2012.

On 12 January 2012, he lodged an application for renewal of his registration as a BAS agent. In support of his application, he included:
(1)a duly completed form entitled “Statement of Relevant Experience”;
(2)a reference in relation to bookkeeping and accounting work performed for an audit;
(3)an Associate Diploma of Business (Accounting) he had completed at the Northern Melbourne Institute of TAFE;
(4)statements of results in subjects he had completed as part of the Associate Diploma of Business (Accounting) in the years 1992 to 1995;
(5)certificates of attendance at a GST seminar conducted by the National Institute of Accountants on 10 and 11 September 1999 and a 2006/2007 Taxation Training Seminar conducted by Australia Wide Taxation & Payroll Training on 13 October 2006;
(6)a list of seminars and workshops attended by Mr Kuan between 10 September 1999 and 6 April 2010; and
(7)an outline of the course content for a workshop entitled “Terminations a& Payroll Changes” attended by Mr Kuan on 29 July 2008 and a course entitled “Payroll and Office Tax Procedures 2009/10” he attended on 5 November 2009.

The Board asked Mr Kuan for information showing that he had successfully completed a course in basic GST/BAS taxation principles (GST/BAS course) approved by the Board as required under items 101(b) and 102(b) of Schedule 2 to the Regulations. Mr Kuan responded to the effect that he believed that his qualifications satisfied the requirements regarding recognised prior learning (RPL).

In its letter to Mr Kuan dated 19 November 2012, the Board told him that it was not satisfied that he had completed a GST/BAS course. The Board continued:
“6. … Accordingly, the Board decided to defer consideration of your application pending receipt of further information from you regarding the completion of a GST/BAS course. Further details regarding the requirements for a GST/BAS course are outlined below.
Requirements for renewal of registration
7.In your case, there are two avenues for renewal of your BAS agent registration. These two avenues are often referred to by the Board as the ‘standard option’ and ‘transitional option’.
(i)Standard option
8.Under the standard option, the Board must grant your application for renewal of registration if the Board is satisfied that you meet the eligibility requirements set out in section 20-5 of the TASA. If the Board is not satisfied that you meet those eligibility requirements, subsection 20-25(1) of the TASA states that the Board must reject your application.
9.To be eligible for renewal of registration as an individual BAS agent, subsection 20-5(1) of the TAS provides that the Board must be satisfied that:
(a)you are a fit and proper person; and
(b)you meet the requirements prescribed by TASR [Regulations] including, but not limited to, requirements relating to qualifications and experience.
10.The prescribed requirements relating to qualifications and experience are contained in Schedule 2, Part 1 of the TASR. There are two alternatives, which are set out in Item 101 and Item 102 in Schedule 2 to the TASR.
11-21…
(ii)Transitional Option
22.Where an applicant does not satisfy the requirements for renewal of registration as a BAS agent under the ‘standard option’, the Board will then consider the application under the ‘transitional option’.
23.Under the transitional option, which is contained in Item 14 in Schedule 2 to the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009, an individual is eligible for registration as a BAS agent if:
(a)the individual makes the application before 1 March 2013;
(b)the individual would be eligible for registration under the TASA but for the requirements prescribed by the TASR relating to qualifications and experience; and
(c)the Board is satisfied that the applicant has been providing BAS services to a competent standard for a reasonable period before making the application.
24.Further information on the transitional option is available on the Board’s website at We have not provided any further information about the transitional option in this letter, noting that you are not particularly interested in this option at this stage.
Response required
25.To enable the Board to consider your renewal application under the ‘standard option’ and in accordance with the requirements of Items 101 or 102 in Schedule 2 to the TASR, the Board requests that you provide the following information:
∙Evidence that you have successfully completed the BAS unit FNSBKPG404A Carry out business activity statement and instalment activity statement tasks, which has been approved by the Board as meeting the requirements of a GST/BAS course;
∙Alternatively, evidence that you have successfully completed another course which you believe to be equivalent of the BAS unit FNSBKPG404A Carry out business activity statement and instalment activity statement tasks. In this case, you must demonstrate how your course meets the Board’s requirements for a GST/BAS course as outlined in TPB(1) 04/2011, including the requirements relating to course content and assessment; and
∙If the relevant course has been completed through RPL, written evidence from a Board approved course provider (which includes universities, registered training organisations, other registered higher education institutions and other course providers approved by the Board) that shows you have complete a GST/BAS course though [sic] RPL and the date the course was assessed as completed. If the course was assessed as completed on or after 1 October 2010, you must also provide a Statement of Assurance or other similar documentation which evidences that the prior learning has been formally assessed in accordance with the Board’s requirements, as set out in TPB(1) 04/04/2011.”

On 6 December 2012, Mr Kuan responded to the Board’s letter. He made the following main points:
(1)He had made his application under the standard option and not under the transitional option.
(2)As he had completed a GST/BAS course before 1 October 2010 and had made a standard application for registration as a BAS agent before 1 March 2012, [34] of the Board’s TPB Information Sheet supported his view that he was not required to comply with the Board’s RPL requirements. That Information Sheet is nunmbered TPB(1) 04/2-11 and is entitled “BAS agent educational qualification requirements” (Information Sheet).
(3)He has already given the Board two certificates about his training in GST/BAS principles. That training covered:
“… topics of Goods & Services Tax and Carry out business activity statement and installment [sic] activity statement tasks. Other courses in the list previously submitted simply serve as evidence that my skill and knowledge in GST/BAS are up to date through continued professional development as required by the IPA, the professional association of which I have been a member for sixteen years. In any event, I will make an effort to procure some sort of certificates about my attendance of the course if such documents are confirmed to carry weight in consideration of my application.”

The Board’s Information Sheet issued on 11 May 2011 describes the educational qualifications that it will accept for the purposes of s 20-5(1)(b) of TASA and r 7 and Schedule 2 to the Regulations. At [29]-[34], it poses the question: “Can a course be constituted solely by recognised prior learning (RPL)?” and answers it:
“29. Subject to paragraph 34, where part, or all, of the basic GST/BAS taxation principles course qualification has been gained through a process of RPL, the Board will only accept this qualification gained through RPL if it satisfies the Board’s RPL requirements. These requirements are outlined in paragraphs 30 to 33 below.
30.The Board is of the view that the assessment of knowledge and competence is the best safeguard for the Board to ensure that it admits to registration only applicants who have the necessary technical qualifications to competently deal with taxpayers’ affairs. The Board recognises that prior learning through experience may be regarded as a proxy for content, but, subject to paragraph 34 below, it does not propose to accept evidence of prior learning in the work place, in the context of approving a course as a Board approved course, where prior learning has not been formally assessed in some way.
31.The Board requires the assessment and testing of prior learning to be completed under some form of independent supervision. The assessment must test the elements of the unit and the learning outcomes achieved to establish that these are comparable to the elements of the course and elements of the learning outcomes undertaken by students who are seeking approval based upon means of assessment other than RPL.
32.A sit down challenge test, conducted under supervision, in which an applicant for registration is independently tested about their knowledge of basic GST/BAS taxation principles and about how to apply these in practice could be one way to meet this requirement. Another could be a formal examination or formal assessment (although ‘take-home’ exams would not be accepted).
33.The Board has issued a Statement of Assurance form which can be used by applicants who have completed part, or all, of a relevant course through a process of RPL to evidence that the prior learning has been formally assessed in some way. This statement must [sic] completed by an appropriately qualified officer (being someone who is in a position of sufficient authority) of the course provider. A copy of the Statement of Assurance is available to be downloaded from the Board’s website at paragraphs 29 to 33 above, if the GST/BAS course qualification was gained before 1 October 2010, the Board will accept the qualification gained through RPL notwithstanding that it does not meet the Board’s RPL requirements. This applies to:
∙all standard applications for registration as a BAS agent made before 1 March 2012; and
∙all standard applications for renewal of registration as a BAS agent, provided the applicant first became registered before 1 March 2012.”

CONSIDERATION

General principles identifying the source of the Tribunal’s power

As Mr Brown submitted, the task of identifying whether the Tribunal has power to consider an application must always start with s 25 of the AAT Act. Section 25(1) provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”[37]
[37] Section 25(2) of the AAT Act makes provision for applications to be made for review of decisions made under a Norfolk Island enactment. That is not relevant in this case.

Section 25(3) sets out the matters that any enactment that makes provision of this sort either must, or may, deal. It:
“(a) shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.”

The enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of ss 27, 29, 32, 33 and 35 or of ss 41(1), 43(1) or 43(2) in relation to the applications made to the Tribunal. If it does so, those provisions “… have effect subject to any provisions so included.”[38]

[38] AAT Act; s 25(6)(b)

Once an enactment has provided that an application may be made to the Tribunal for review of a decision, the Tribunal must be given power to review the decision to which that application relates. That power is given to it by s 25(4) of the AAT Act when it provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

Sections 25(1) and (3) are concerned with the application that may be made to the Tribunal but not by whom it may be made. That is left to s 27, which provides for applications by persons and organisations or associations of persons, whether incorporated or not. I am concerned only with an application by an individual, being Mr Kuan, in this case. He is a person for the purposes of s 27(1) of the AAT Act,[39] which provides, in so far as it is relevant to this case:
“Where … any … enactment … provides that an application may be made to the Tribunal for review of a decision, the application may be made by or on behalf of any person or persons … whose interests are affected by the decision.”

Provisions of TASA and TAS Transitional Act providing applications may be made to the Tribunal for review of decisions

[39] Acts Interpretation Act 1901; ss 2B and 2C(1)

I have set out s 70-10 of TASA at [28] above. The only paragraph of that provision that could conceivably be relevant is paragraph (a) and I will repeat it:
“An application may be made to the Administrative Appeals Tribunal for review of any of the following decisions of the Board:
(a)a decision under section 20-25:
(i)to reject an application for registration (including renewal of registration); or
(ii)to specify a condition to which registration is subject;
(b)-(h)…”

At [35]-[37] above, I have summarised item 18 of Schedule 2 in so far as it provides for applications to be made to the Tribunal for review of any decisions that may be relevant to Mr Kuan’s case. It makes no provision for review of decisions under item 14.

Identifying the decision under review

A. What did the Board decide?

At the hearing, I had a sense that Mr Kuan and the Board were not as one as to what it is that the Board has actually decided. It is important that its decision be isolated not only for the purposes of my deciding whether I have power to review it but also so that Mr Kuan knows what it is that the Board is not satisfied with.

I will start with TASA and the Regulations. It is clear that Parliament has used them to introduce a scheme of registration of BAS agents, as well as tax agents, that is an integral part of a wider scheme. That wider scheme is directed to ensuring that only those who are fit and proper persons and who have demonstrated that they have knowledge appropriate to the task are permitted to provide BAS services, in the case of BAS agents, or tax services, in the case of tax agents. In the case of an individual, TASA attempts to achieve this, in part, by providing that the individual must be a fit and proper person and must meet “… the requirements prescribed by the regulations (including but not limited to, requirements relating to qualifications and experience) in respect of a registered … BAS agent.”[40] Those requirements are complemented by others that may be imposed by the Board through the imposition of conditions on registration or by TASA itself, which requires compliance with The Code of Professional Conduct set out in s 30-10 of TASA. It is apparent from the provisions of the TAS Transitional Act that those who had been providing certain services that were described as that either under ITAA36 or under TASA were granted a two year period of grace within which to obtain the qualifications now required for registration as a BAS agent.
[40] TASA; s 20-5(1)

At [19] and [20] above, I have set out the requirements of Items 101 and 102 of Schedule 2, which relate to qualifications and experience. These are the requirements prescribed by the Regulations for the purposes of registration as a BAS agent. An individual must satisfy one or the other but both items have as a common element a requirement that an individual “has successfully completed a course in basic GST/BAS taxation principles that is approved by the Board”.

The Board’s Information Sheet states that it is providing:
“… an overview of the Board’s position on BAS agent educational qualification requirements …. While it seeks to provide practical assistance and explanation, it does not exhaust, prescribe or limit the scope of the Board’s powers provided in the TASA.”[41]
[41] Information Sheet; Disclaimer

This is not the occasion on which to tease out and decide precisely what is required by the Regulations and what is meant in the Information Sheet but Mr Kuan has relied on the Board’s statements in the Information Sheet at [34]. I have set out [29]-[34] at [43]. Read in the context of those paragraphs and without having TASA or the TAS Transitional Act open at the same time, [34] may be read as suggesting that any course touching on GST and BAS undertaken before 1 October 2010 will be accepted by the Board as meeting its requirements. That would seem to be how Mr Kuan has read it but I do not think that it should be read that way.

Items 101(b) and 201(b) of Schedule 2 to the Regulations provide that one of the requirements is that an individual “has successfully completed a course in basic GST/BAS taxation principles that is approved by the Board”. There are three parts to this requirement. The first is that there is a “course in basic GST/BAS taxation principles”. The second is that the course has been approved by the Board. The third is that the individual has successfully completed it. At [34] of the Information Sheet, the Board is not primarily focused upon the first two parts of the requirement but upon the third i.e. successful completion and how it is to be measured for a certain group of applicants for registration.

I say that the Board is “not primarily” focused upon the course and its approval at [34] of the Information Sheet because, in earlier paragraphs, it does bear in mind the means by which successful completion of the course is demonstrated in deciding whether to approve a course at all. Paragraph [11] sets out the topics that a course in basic GST/BAS taxation principles must, as a minimum, cover. Paragraphs [23] to [28] set out the Board’s views on the way in which applicants are required to demonstrate the knowledge and skills they have learnt from the material contained in that course. The Board “… is of the view that some means of objective assessment is a key aspect of the approval of courses for registration of applicants as BAS agents. …”.[42] The Board goes on to describe what it considers amounts to objective assessment of a course participant’s knowledge at [24]-[27] of its Information Sheet.
[42] Information Sheet; [23]

This is followed by its consideration at [29] to [34] of whether it will accept RPL, which has not been formally assessed in some way, as acceptable in the context of its approving a course. The Board states that it requires the assessment and testing of RPL to be completed under some form of independent supervision. It does not propose to accept evidence of RPL that has not been formally assessed in some way.[43] It is only then that the Board, at [34], qualifies its standards regarding a qualification gained through a process of RPL that does not meet its RPL requirements. It only does so in relation to “standard applications” for registration as a BAS agent made before 1 March 2012 and all “standard applications” for renewal of registration as a BAS agent provided the person first became registered before 1 March 2012.
[43] Information Sheet; [30]

When the three steps in the Board’s course approval process are understood, I respectfully suggest that its statement in its letter to Mr Kuan is also better understood. Its statement was that it was not satisfied that he has completed a GST/BAS course. This must be read as meaning that it is not satisfied that he has completed a course in basic GST/BAS taxation principles that it has approved. It is saying that, in its view, none of the courses listed by Mr Kuan as courses he has either completed and obtained a qualification or that he has listed as courses he has attended is regarded by the Board as a course in basic GST/BAS taxation principles that it has approved.

If I am correct in thinking that, [34] of the Information Sheet has no application or relevance to his situation at this time. Paragraph 34 modifies the Board’s requirements regarding the way in which a person must demonstrate successful completion of a course. What the Board is concerned about in this case is whether Mr Kuan has undertaken an approved course in basic GST/BAS taxation principles at all let alone whether he has successfully completed it. If [34] of the Information Sheet is to have any relevance, Mr Kuan must go back to the courses themselves and persuade the Board that one or more of them is a course in basic GST/BAS taxation principles it has approved. Only if there is such a course will the Board turn to [34] of its Information Sheet. It will then decide whether he has completed that course before 1 October 2010 and whether he has made a “standard application” before 1 March 2012 or was first registered as a BAS agent before that date and applies for renewal.

Mr Kuan sees himself as having met the first step of attending an approved course. He has said that he has provided two certificates about his training in GST/BAS taxation principles which cover GST and carry out business activity statements together with instalment activity statements. It is not my role in this proceeding to decide whether his training met the description of “… a course in basic GST/BAS taxation principles that is approved by the Board” as required by Items 101(b) and 102(b) of Schedule 2 to the Regulations. That, however, will be his first task both with the Board and on review. Unless it does so in all respects apart from assessment, [34] of the Information Sheet will not become relevant to consider.

B. Identifying the actual decision under review

The Board distinguishes between a “standard option” and a “transitional option” as the avenues by which an individual may apply for renewal of registration as a BAS agent. With respect to the Board, I have found this confusing and I think that it wrongly directs attention away from the Board’s power under s 20-25 of TASA to items 5 and, in this case, 14 of Schedule 2 to the TAS Transitional Act as if they confer power on the Board to make a decision.

As I understand TASA, a person applies to the Board under s 20-20 of TASA for registration, including renewal of registration, as a BAS agent. If the person is eligible for registration, the Board must grant the application under s 20-25(1). It may impose conditions on that registration. If it does not grant the application, the Board must reject it. In deciding whether a person is eligible for registration, the Board must decide whether the relevant provisions of s 20-5 of TASA have been satisfied. I have set them out above. If the Board makes a decision to reject or to impose a condition then s 70-10(a) provides that an application may be made to the Tribunal for review of it.

When the scheme of registration came into operation on 1 March 2010, the effect of item 5(1) of Schedule 2 to the TAS Transitional Act was that certain persons were taken to be registered BAS agents. Item 5(1) does not receive a mention in item 18 of the TAS Transitional Act as a provision under which the Board has made a decision and in respect of which an application may be made to the Tribunal for review. Its omission is understandable because item 5(1) does not give the Board power to make a decision. Registration of the person as a BAS Agent comes about not by a decision of the Board but by operation of law. It is clear from the fact that item 5(1) provides that a person coming within item 5(1)(a) and (b) is “taken to be a registered BAS agent within the meaning of the new law for the 2 year period …” after 1 March 2010. This interpretation is confirmed by items 5(3) and (4) when they provide that the Board may impose conditions on that registration “as if the entity had applied for registration and the Board had decided to grant the application.” (emphasis added). Items 5(3) and (4) do not provide that the Board has that power because it had decided to grant the application. Any conditions imposed by the Board are imposed using power granted to it under items 5(3) and (4). Items 18(2)(a)(ii) and (iii) clearly recognise that the decision to impose conditions has been made by the Board under s 20-25 and provide for an application to be made to the Tribunal for their review.

The analysis of item 14 is similar to item 5(1) in that it does not confer power on the Board to make a decision. What it does is to tell the Board the circumstances in which certain persons will be eligible for registration even though the Board is not satisfied that they meet the requirements for eligibility specified in provisions of s 20-5 of TASA in relation to qualifications and experience. The Board makes its decision as to whether to grant or refuse the application under s 20-25 of TASA.

The same is true of the period for which the Board may grant a registration of a BAS agent. The period is determined under s 20-25. All that Item 14 of the TAS Transitional Act does is to change the length of the minimum period that the Board must determine a person is registered as a BAS agent. The Board continues to make its decision under s 20-25 of TASA and not under item 14. This is expressly recognised in the language of item 14(2) when it provides that “… despite subsection 20-25(4) of the new law, the period that the Board may determine under that subsection must be at least 12 months.” (emphasis added) The fact that the decision is made under s 20-25 of TASA explains why no provision is made for review in item 18 of the TAS Transitional Act.

When the source of the Board’s power is identified in this way, it seems to me that there is no “standard option” and “transitional option”. There is only one option in the form of a decision under s 20-25 on an application made under s 20-20 of TASA. The outcome of that application will vary according to whether the person applying for registration meets the eligibility requirements set out in s 20-5. If those are met, registration, either with or without conditions and for a minimum period of three years follows. If the requirements prescribed by items 101 and 102 of Schedule 2 to the Regulations are not met, the Board will look to see whether item 5 or item 14 applies to the applicant’s circumstances. It will then make a decision under s 20-25.

Applying item 14 in this case, the Board decided to register Mr Kuan as a registered BAS agent until 1 January 2014. That meant that the Board granted the application.

C. May an application be made to the Tribunal for review of that decision?

Even though the Board has not recognised his qualifications as meeting the eligibility requirements of s 20-5 of TASA, its decision is not a decision to refuse his application. It is not a decision to refuse one application and to grant another. For the reasons I have given, TASA provides for only one type of application for registration or for renewal of registration. The Board’s decision is a decision to grant the application Mr Kuan made for registration. It remains a decision to grant registration even though the period for which it has granted the registration is not as long a period as he wished for.

As no provision is made in s 70-10 of TASA or in item 18 of the TAS Transitional Act for review of a decision made by the Board to grant an application for registration, Mr Kuan may not make an application to the Tribunal to review the Board’s decision. Therefore, the Tribunal has no power to review it.

I certify that the preceding sixty nine paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: …(sgd).........................................................
Leah Berardi Associate

Date of Hearing 19 March 2013

Date of Decision 26 April 2013
ApplicantMr Albert Kuan

Solicitor for the Respondent Mr David Brown
Australian Government Solicitor

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ALBERT KUAN and TAX PRACTITIONERS BOARD [2013] AATA 254

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