Beckett and Tax Practitioner's Board

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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
Respondent

DIRECTION

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 Member

Division: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, 72

Tax 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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Details
Case
[2018] AATA 1860
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Beckett for registration as a tax agent, which was refused by the Tax Practitioners Board. The dispute centred on whether Ms Beckett was a fit and proper person to be registered, given her criminal convictions and other conduct. The decision was heard by Mr P W Taylor SC, Senior Member.

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ms Beckett’s current status is that of a person who has been convicted of two charges of using false documents to influence the exercise of a public duty. She has also publicly acknowledged her guilt of a further offence of knowingly making a false statement under oath. She has been sentenced to imprisonment for a, currently unexpired, period of 20 months, and is subject to a good behaviour bond. Those circumstances are, in my view, incompatible with Ms Beckett currently being regarded as a person who can properly be characterised as of “good fame”. CONCLUSION I am conscious of the gravity of the present proceedings and the potential personal implications for Ms Beckett, and for her family, of their adverse resolution. Nevertheless, on the basis of the material before me, I have reached a firm view of absence of satisfaction that Ms Beckett is currently a person of either good fame, or a person of good integrity and character. For those reasons, which operate both individually and in combination, I am also not satisfied of Ms Beckett’s current fitness for registration as a tax agent. Despite that firm view, nothing I have said should be taken to have significance beyond the circumstances disclosed in the material I have considered. In particular, I should not be taken to have expressed any view foreclosing the possibility of a favourable outcome of any future, properly supported, registration application that Ms Beckett may be advised to make. The decision under review is affirmed.

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.