Beckett and Tax Practitioners Board - [2021] AATA 1234

Beckett and Tax Practitioners Board [2021] AATA 1234 (30 April 2021)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2017/7416
Re:Barbara Beckett
APPLICANT

AndTax Practitioners Board
RESPONDENT

DECISION
Tribunal:Deputy President I R Molloy
Date:30 April 2021
Place:Brisbane

The decision under review is affirmed.
...........................[sgd]..................................
Deputy President I R Molloy
CATCHWORDS
TAX AGENT REGISTRATION – Tax Practitioners Board – tax agent registration – whether applicant is a fit and proper person – applicant convicted of offences involving fraud and dishonesty – decision affirmed
LEGISLATION
Crimes Act 1900 (NSW)
Taxation Administration Act 1996 (NSW)
Tax Agent Services Act 2009 (Cth)
CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Dahia v Tax Agents’ Board of Victoria [1997] AATA 265
Griffin v Pantzer (2004) 137 FCR 209

Harris and Tax Practitioners Board [2014] AATA 430
Houvardis v Tax Agents’ Board of New South Wales [1991] AATA 134
Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
Mackay v Tax Agents’ Board of Tasmania [1994] AATA 113
Stasos v Tax Agents’ Board of New South Wales [1990] FCA 379
Su v Tax Agents’ Board of South Australia [1982] AATA 127
Toohey v Tax Agents’ Board of Victoria [2007] 171 FCR 291
Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796
Quick v Tax Agents’ Board of Victoria [2000] AATA 619
SECONDARY MATERIALS
Australian Government Tax Practitioners Board: Explanatory Paper TPB (EP) 02/2010
REASONS FOR DECISION
Deputy President Molloy

The applicant, Ms Beckett, applies for review of a decision of the Tax Practitioners Board (the respondent or the Board), made on 9 November 2017 to terminate her tax agent registration under s 40-5(1)(b) of the Tax Agent Services Act 2009 (Cth) (the TASA) to take effect from 27 December 2017. The respondent made its decision based on its finding that Ms Beckett was not a fit and proper person to be registered as a tax agent for the purposes of s 20-5(1)(a) of the TASA.
This is a second hearing of the application for review following an appeal to the Federal Court which ordered the matter be remitted to the Tribunal for rehearing.
STATUTORY PROVISIONS
It is convenient to set out the relevant statutory provisions in the TASA.
Subsection 40-5(1) of the TASA provides relevantly:
40‑5 Termination of registration—individuals
(1)If you are a * registered tax agent, BAS agent or tax (financial) adviser and an individual, the Board may terminate your registration if:
(a) an event affecting your continued registration, as described in section 20‑45, occurs; or
(b) you cease to meet one of the * tax practitioner registration requirements; …
Pursuant to s 90-1 of the TASA:
tax practitioner registration requirements means the matters about which the Board must, under Subdivision 20‑A, be satisfied before the Board is obliged to grant an application for registration under this Act.
Subdivision 20-A of the TASA includes ss 20-5(1) and 20-15 which provide relevantly:
20‑5 Eligibility for registration as registered tax agent,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 1234
Decision Date: 30 April 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms Beckett against a decision by the Tax Practitioners Board (the Board) to terminate her registration as a tax agent. The dispute arose from Ms Beckett's convictions for offences involving fraud and dishonesty, and her subsequent failure to disclose these convictions and a disciplinary determination by the Legal Profession Board of Tasmania when renewing her tax agent registration. The case was heard by Deputy I R Molloy P.

The primary legal issue before the court was whether Ms Beckett was a fit and proper person to be registered as a tax agent, as required by section 20-5(1)(a) of the Tax Agent Services Act 2009 (TASA). This involved considering the impact of her criminal convictions for fraud and dishonesty, and her alleged failure to notify the Board of these events and other relevant circumstances as required by section 30-35(1) of the TASA.

The court affirmed the Board's decision, finding that Ms Beckett did not meet the fit and proper person requirement. This conclusion was based on the nature and seriousness of the offences for which she was convicted, which involved fraud and dishonesty. Furthermore, the court considered Ms Beckett's failure to disclose these convictions and a separate disciplinary determination when applying for renewal of her registration as a repeated and sustained failure to comply with her notification obligations under the TASA.

The Board's decision to terminate Ms Beckett's registration as a tax agent was affirmed, with the termination to take effect from 15 June 2021, allowing her to continue practising under the terms of a stay order until that date.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The respondent also relies on Ms Beckett’s alleged failure to disclose the conduct which led to the said convictions when she completed applications to renew her registration as a tax agent in 2013 and 2016, or at any other time prior to the Board receiving an unrelated complaint in April 2016. This was described by the Board as a repeated and sustained failure on the part of the applicant to comply with s 30-35(1) of the TASA which further weighs in favour of affirming the decision that she is not a fit and proper person for the purposes of s 20-5(1)(a) of the TASA. BACKGROUND Ms Beckett has been a registered tax agent since 1987. She graduated with a Master of Business Administration from Macquarie University in 1990. She was a solicitor holding an unrestricted practising certificate in New South Wales from 1996. Ms Beckett practised in her own name as a tax agent, solicitor, and accountant from 1988 to 2009. She commenced practice through a company, Barbara Beckett & Associates Pty Ltd, from 1 January 2010.[1] [1] Exhibit 1, Joint Hearing Book (JHB), pages 1-11; Applicant’s Statement of Issues, Facts and Contentions dated 20 September 2019 (Applicant’s SIFC), [6]. In 2003, Ms Beckett became an approved person under the Electronic Duties Returns (EDR) scheme operated by the NSW Office of State Revenue (OSR) under the Taxation Administration Act 1996 (NSW).[2][2] Applicant’s SIFC, [7]. As part of the EDR scheme, Ms Beckett was approved to stamp transfers of real property upon receipt of a Notice of Assessment. Persons approved under the EDR scheme must have the duty payable available to them prior to stamping a transfer except where the duty payable would be collected at settlement. The stamp duty was to be paid by the applicant “by return” to the OSR on a weekly basis. Pasquale Lopresti was a client of the applicant. Mr Lopresti was a beneficiary of a family trust which in 1997 had acquired a property in Darling Point, NSW.[3][3] Applicant’s SIFC, [10]. In 2005, Ms Beckett became aware that Mr Lopresti was living in the property as his main residence and she advised him that it was not appropriate that the property be held by the trust. The other beneficiaries of the trust agreed that the property could be transferred from the trust to Mr Lopresti. Commencing in about July 2009, Ms Beckett communicated with the OSR about the stamp duty payable on a transfer of the property from the trust to Mr Lopresti.[4] Ms Beckett contended that the transfer should be assessed for nominal duty only.[4] Applicant’s SIFC, [12]. On 30 March 2010, the OSR forwarded a letter to the applicant stating that the transfer was liable to ad valorem duty.[5] [5] Applicant’s SIFC, [14]. In June 2010, it apparently became urgent that the transfer be completed by reason of a necessity to refinance the trust’s loans. On 10 June 2010, Ms Beckett utilised the EDR system to stamp the transfer of the property from the trust to Mr Lopresti. The assessed duty was $29,240.00 together with $17,416.29 by way of penalty interest, a total of $46,656.29. At the time, the applicant did not have the duty or interest available to her, nor was either to be collected at settlement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have also had regard to the authorities referred to above and, of course, to the nature, seriousness and circumstances of the offences for which Ms Beckett was convicted and sentenced. In the result I am satisfied that Ms Beckett does not meet the requirement under s 20(5)(1)(a) of the TASA that she is a fit and proper person to be registered as a tax agent.CONCLUSION The Board’s decision on 19 November 2017 terminating the applicant’s registration as a tax agent under s 40-5(1)(b) of the Tax Agent Services Act 2009 (Cth) is affirmed. The decision is to take effect from 15 June 2021 to the intent that until then Ms Beckett is permitted to practise under the terms of the stay order which has been in place.

Ratio Decidendi

Legal Principle Established

Section 20-45 of the TASA provides:20‑45 Certain events may affect your continued registrationThe following events may affect your continued registration as a * registered tax agent, BAS agent or tax (financial) adviser:(a)you are convicted of a * serious taxation offence;(b)you are convicted of an offence involving fraud or dishonesty;(c)you are penalised for being a * promoter of a * tax exploitation scheme;(d)you are penalised for implementing a * scheme that has been promoted on the basis of conformity with a * product ruling in a way that is materially different from that described in the product ruling;(e)you become an undischarged bankrupt or go into external administration;(f)you are sentenced to a term of imprisonment. Section 30-35 of the TASA provides relevantly:Obligation to notify a change of circumstancesIndividuals(1) If you are a *registeredtax agent, BAS agent or tax (financial) adviser and an individual, you must notify the Board in writing whenever:(a) you cease to meet one of the *tax practitioner registration requirements; or(b) an event affecting your continued registration, as described in section 20- 45, occurs; …ISSUE The question for determination is whether Ms Beckett is a fit and proper person to be registered as a tax agent. As the respondent points out, its finding that Ms Beckett was not a fit and proper person was made in circumstances where:(a)Ms Beckett had been convicted of two offences under s 254 of the Crimes Act 1900 (NSW) in relation to the use of forged Westpac and ANZ bank cheques and sentenced to terms of imprisonment (of 20 months and 18 months to be served concurrently) each suspended upon Ms Beckett entering into a good behaviour bond; (b)the offences referred to at (a) involved fraud or dishonesty and, accordingly, the relevant convictions constituted an event which may affect the applicant’s registration under s 20-45 of the TASA; and(c)the Board found Ms Beckett was not a person of good fame, integrity or character having regard to:(i)the conduct which led to her being sentenced to the said terms of imprisonment; and(ii)Ms Beckett’s failure in an annual declaration lodged with the respondent, to disclose a disciplinary determination made by the Legal Profession Board of Tasmania on 16 February 2016. The respondent also relies on Ms Beckett’s alleged failure to disclose the conduct which led to the said convictions when she completed applications to renew her registration as a tax agent in 2013 and 2016, or at any other time prior to the Board receiving an unrelated complaint in April 2016. This was described by the Board as a repeated and sustained failure on the part of the applicant to comply with s 30-35(1) of the TASA which further weighs in favour of affirming the decision that she is not a fit and proper person for the purposes of s 20-5(1)(a) of the TASA. BACKGROUND Ms Beckett has been a registered tax agent since 1987. She graduated with a Master of Business Administration from Macquarie University in 1990. She was a solicitor holding an unrestricted practising certificate in New South Wales from 1996.