Beckett and Tax Practitioner's Board [2018] AATA 1860 (14 June 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2017/7416
TAXATION AND COMMERCIAL DIVISION )
Re: Barbara Beckett
Applicant
And: Tax Practitioners Board
RespondentDIRECTION
TRIBUNAL: Mr P W Taylor SC, Senior Member DATE OF CORRIGENDUM: 30 July 2018 PLACE: Sydney The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to insert “Counsel for the Respondent: Mr G O’Mahoney” on page 46 of the decision, directly above “Solicitors for the Respondent: Ms L Paolucci”.
……………[sgd]………………..
Mr P W Taylor SC, Senior MemberDivision:TAXATION & COMMERCIAL DIVISION
File Number: 2017/7416
Re:Barbara Beckett
APPLICANT
AndTax Practitioner's Board
RESPONDENT
DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:14 June 2018
Place:Sydney
The decision under review is affirmed.
...........................[sgd].............................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
Tax Practitioners – tax practitioners board – registration as a tax agent – whether applicant is a fit and proper person – applicant proffering false dated copies of bank cheques – non-disclosure of unsatisfactory professional conduct – decision affirmed
LEGISLATION
Broadcasting Act 1942 (Cth)
Crimes Act 1900 (NSW), ss 254, 319, 330
Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 12, 33 & 55
Duties Act 1997 (NSW) ss 55, 97
Income Tax Assessment Act 1936 (Cth), ss s25BC(1), 251JA(1)(a), 251K
Land Tax Management Act 1956 (NSW) s 3A
Legal Profession Act 2004 (NSW) ss 40, 43, 98 & 406;
Legal Profession Act 2007 (Tasmania) s 9, 44, 45, 49, 53
Legal Profession Uniform Law (NSW) s 44, 45 & 211
Taxation Administration Act 1996 (NSW), s 37, 72Tax Agents Services Act 2009 (Cth) ss 2-5, 2-10, 20-5, 20-15(a), 20-15(b), 20-25, 20-45, 20-50, 30-10, 30-15, 30-35, 40-5, 50-5, 70-10, 90-5
CASES
A Solicitor v Council of the Law Society of NSW [2004] HCA 1 at [18]; (2004) 216 CLR 253
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beckett v R [2014] NSWCCA 305; (2014) 315 ALR 295
Burnett v Tax Practitioners Board [2014] AATA 687; (2014) 99 ATR 456
Chamberlain v Australian Capital Territory Law Society (1993) 118 ALR 54
Ex parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR(NSW) 448
Frost Taxation Pty Ltd and Tax Agents’ Board of South Australia [2005] AATA 393; (2005) 87 ALD 794
Harris and Tax Practitioners Board [2014] AATA 430
Hourani and Tax Practitioners Board [2012] AATA 518, (2012) 58 AAR 104
Hughes and Vale Pty Ltd v State of NSW (No 2) (1955) 93 CLR 127
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jackson v Legal Practitioners Admission Board [2006] NSWSC 1338
Law Society of South Australia v McKerlie [2008] SASC 222
Legal Practitioners Conduct Board v Nicholson [2006] SASC 21
McKay v Tax Agents Board Tasmania [1994] AATA 113; (1994) 94 ATC 2057
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR…
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- Case
- [2018] AATA 1860
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were whether Ms Beckett satisfied the eligibility criteria for registration as a tax agent, specifically whether she was a person of "good fame, integrity and character" as required by section 20-15(a) of the Tax Agents Services Act 2009 (TASA). This involved considering whether her past conduct, including convictions for using false documents and admitting to making false statements under oath, rendered her unfit for registration.
The Tribunal reasoned that Ms Beckett's convictions for using false documents to influence a public duty, coupled with her public acknowledgment of guilt for knowingly making a false statement under oath, were incompatible with being a person of good fame. Furthermore, her unexpired prison sentence of 20 months and a good behaviour bond were significant factors. The Tribunal concluded that, based on the material before it, it was not satisfied that Ms Beckett was currently a person of good fame, integrity, or character, nor was she fit for registration as a tax agent.
The Tribunal affirmed the decision of the Tax Practitioners Board to refuse Ms Beckett's registration. However, the Tribunal noted that its decision was confined to the circumstances disclosed in the material considered and did not preclude a favourable outcome for any future, properly supported, registration application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
After the 23 October 2015 High Court decision, Ms Beckett’s trial on the 2013 indictment commenced in the NSW District Court on 7 September 2016. Several days into the trial, the Crown amended the indictment – by substituting the Crimes Act s 254 charges for the previously asserted charge (under s 319, of attempting to pervert the course of justice) that had been the subject of the High Court proceedings. Ms Beckett promptly pleaded guilty to those charges. TAX AGENT REGISTRATION AND REGULATION– LEGISLATIVE PROVISIONS The basic purpose of the Tax Agents Services Act 2009 (“TASA”) provisions is to ensure that tax agent services are provided “in accordance with appropriate standards of professional and ethical conduct”:- see TASA s 2-5. (The expression “tax agent services” is broadly defined, and generally includes providing advice and representation services relating to Commonwealth taxation matters: see TASA s 90-5.) The TASA registration regime is a fundamental means of effectuating that purpose. Its core provision is that a person must be registered to be able to charge for providing “tax agent services”: see TASA ss 2-10 & 50-5. The registration eligibility criteria for an individual tax agent include appropriate qualifications, experience and professional indemnity insurance. An individual registration applicant must also satisfy the Tax Practitioners Board that they are “fit and proper”: see TASA s 20-5. That will largely depend on satisfaction that the person is of “good fame, integrity and character”:- TASA s 20-15(a). The considerations that may inform such an assessment are not prescriptively defined:- see TASA s 20-15(b); Toohey v Tax Agents Board of Victoria [2008] FCA 1796; (2008) 106 ALD 506 at [3]. They must include, but the assessment is neither limited to nor explicitly determined by, circumstances where, in the preceding five years, the person has(a)served, or has been sentenced to, a term of imprisonment:- TASA ss 20-15(b)(i) & 20-45(f); 20-15(b)(iii)(b)had the status of an undischarged bankrupt:- TASA ss 20-15(b)(ii)(c)been convicted of any offences involving fraud or dishonesty:- TASA ss 20-15(b)(i) & 20-45(b)(d)been convicted, or otherwise sanctioned, for a “serious taxation offence” or certain other kinds of tax related misconduct:- TASA ss 20-15(b)(i) & 20-45(a)(c)&(d). An applicant who satisfies the relevant eligibility requirements, must be registered:- TASA s 20-25. The minimum registration period is three years but is renewable: – TASA ss 20-25(4) & 20-50. Once registered, a tax agent is subject to various obligations. They include(a)compliance with any registration conditions the Board imposes(b)compliance with the statutory Code of Professional Conduct (which sets out basic requirements of honesty, competence, lawfulness, client best interest and, since 30 June 2013 maintenance of professional indemnity insurance.):- TASA s 20-25(5) & 30-10 (c)notifying the Board “whenever” they cease to meet any of registration requirements:- TASA s 30-35(1)(a)(d)notifying the Board if (amongst other things) they have been convicted of dishonesty or have been sentenced to imprisonment:- TASA s 30-35(1)(b) & 20-45.