Beckett v Tax Practitioners Board

Link copied
Case Copied 30 min read

FEDERAL COURT OF AUSTRALIA

Beckett v Tax Practitioners Board [2023] FCAFC 100

Appeal from: Beckett v Tax Practitioners Board [2022] FCA 930
File number(s): NSD 756 of 2022
Judgment of: WHEELAHAN, MCELWAINE AND JACKMAN JJ
Date of judgment: 28 June 2023
Catchwords: ADMINISTRATIVE LAW – appeal from primary judge decision dismissing an appeal from an Administrative Appeals Tribunal decision affirming a decision of the Tax Practitioners Board to terminate the appellant’s tax agent registration– where Board found appellant is not a “fit and proper” person – where appellant claims Tribunal gave inadequate reasons – s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) considered – appeal dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Tax Agent Services Act 2009 (Cth) ss 20-5, 20-15, 20-45, 40-5

Cases cited:

Beckett v Tax Pracitioners Board (2019) 164 ALD 231; [2019] FCA 353

Beckett v Tax Practitioners Board [2021] AATA 1234

Beckett v Tax Practitioners Board [2022] FCA 930

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833

Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779

Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Wonson v Comcare (2020) 276 FCR 613; [2020] FCAFC 76
Division: General Division
Registry: New South Wales
National Practice Area: Taxation
Number of paragraphs: 46
Date of hearing: 17 May 2023
Counsel for the Appellant: Mr M Robinson SC with Dr J Lucy
Solicitor for the Appellant: HNT Legal
Counsel for the Respondent: Mr L Livingston SC with Ms W Liu
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

NSD 756 of 2022
BETWEEN:

BARBARA BECKETT

Appellant
AND:

TAX PRACTITIONERS BOARD

Respondent

ORDER MADE BY:

WHEELAHAN, MCELWAINE AND JACKMAN JJ

DATE OF ORDER:

28 JUNE 2023

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the respondent’s costs of the appeal as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. Unsurprisingly, to be a registered tax agent in Australia there are certain eligibility criteria that apply pursuant to the Tax Agent Services Act 2009 (Cth) (Act).  Amongst other things, an individual applicant must be a person whom the Tax Practitioners Board (Board) is satisfied is a fit and proper person: s 20-5(1). The statutory criteria of fitness and propriety requires the Board to have regard to certain matters at s 20-15, including whether the individual “is of good fame, integrity and character” and whether the individual has been convicted during the previous five years “of an offence involving fraud or dishonesty”: ss 20-15(a), (b)(i) and 20-45(b).

  2. The appellant was first registered as a tax agent in 1987. She practised as such for many years thereafter. On 7 September 2016, she pleaded guilty to two counts of using…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Beckett v Tax Practitioners Board and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FCAFC 100
Decision Date

CaseChat Overview and Summary

The case of Beckett v Tax Practitioners Board involves an appeal against a decision of the Administrative Appeals Tribunal (AAT) that upheld a decision by the Tax Practitioners Board to terminate the appellant's tax agent registration. The central issue before the court was whether the AAT provided adequate reasons for its decision under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth). The appellant argued that the AAT did not sufficiently explain its reasoning in concluding that she was not a "fit and proper" person to hold a tax agent registration. This appeal followed an earlier decision by the primary judge who dismissed the appeal from the AAT decision.

The court considered the statutory obligation of the AAT to give reasons as outlined in section 43(2B) of the AAT Act. It noted that the duty to give reasons is not to set out findings the court believes should have been made, but rather to record the findings the AAT actually made and to expose the reasoning process. The court referenced previous cases such as Ansett Transport Industries (Operations) Pty Ltd v Wraith and Secretary, Department of Employment and Workplace Relations v Homewood to emphasise that the reasons must be sufficient to enable a party to understand why they lost and to decide whether the decision involved an error worth challenging. The court also highlighted Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner, which underscored that the reasons must be read in their entirety rather than in isolation.

In this case, the court found that the AAT's reasons were adequate. The Tribunal set out its findings on material questions of fact, the evidence on which those findings were based, and the logical process by which it reached its conclusions. The court held that the AAT's reasons met the statutory requirements by detailing the facts it deemed relevant and the judgment those facts led it to. The amorphous nature of the statutory criterion meant that the Tribunal could not provide more detailed reasoning beyond what was given.

Accordingly, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal as agreed or taxed. This decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of the appeal as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Before us, counsel for the appellant readily accepted that she had engaged in dishonest conduct. It was a serious matter for the appellant to have altered the dates on each copy of the bank cheques and it was dishonest to proffer those copies as genuine to the officers from the State Revenue Office. Counsel, however, emphasised the considerable lapse of time between the conduct and the plea of guilty and the conduct and the date of hearing before the Tribunal during which time the Board did not identify any other instance of dishonest or unprofessional conduct. Of course, these matters are relevant only to the merit of the Tribunal decision, but they do provide context as to how it proceeded and reasoned.THE TRIBUNAL DECISION The Tribunal commenced by setting out the relevant provisions of the Act and no complaint is made by the appellant that it failed to understand the evaluative inquiry required by the fit and proper person test by having regard to whether the appellant is an individual of good fame, integrity and character. At TD [10]-[38] the Tribunal summarised the relevant history that led to the appellant’s commission of the offences and her subsequent conduct in proffering copies of the altered bank cheques to the state investigators on 28 September 2010 when, in particular, after having been informed that it was an offence to make a statement to a taxation officer knowing it to be false or misleading, falsely stated that she had purchased the bank cheques at the time of, and in order to discharge the liability for, the duty assessment. She also falsely stated that the original bank cheques had been collected by a bank representative at settlement. The Tribunal at TD [35]-[36] set out some of the comments made by the District Court judge on 24 February 2017 in sentencing the appellant. None of that is in issue. At TD [39]-[51], the Tribunal found favourably to the arguments of the appellant that she did not breach her disclosure obligations under the Act by failing to disclose to the Board her conduct before the date of her conviction. In essence, the Tribunal found that the standard form questions were limited to conviction for an offence involving fraud or dishonesty, rather than conduct which might be characterised as dishonest and for which an individual might subsequently suffer a conviction. At TD [52]-[54], the Tribunal also concluded favourably to the arguments of the appellant that no regard would be had to any failure by her to disclose to the Board a disciplinary determination made by the Legal Profession Board of Tasmania on 16 February 2016, related to her dishonest conduct. At TD [55]-[58], the Tribunal extracted passages from various authorities concerned with the content of a statutory requirement that a person be fit and proper. No criticism is made by the appellant that the Tribunal wrongly stated or misunderstood the legal content of the obligation. At TD [59] the Tribunal concluded that the appellant’s offending was serious:The offences for which Ms Beckett has been convicted are serious. She forged bank cheques and lied under oath in an interview with officers from the OSR. The offences are particularly serious when considered in the context of her registration as a tax agent.

Ratio Decidendi

Legal Principle Established

In summary, counsel submitted the primary judge clearly comprehended these matters and was entirely correct in her overall conclusion at PJ [70].CONSIDERATION Recently this Court in Wonson addressed the content of the statutory duty of the Tribunal to give reasons pursuant to s 43(2B) of the AAT Act. At [89] the Court expressed as “well-established” that the statutory obligation “only extends to the findings the Tribunal has actually made and not to findings the Court considers it ought to have made.” The duty is to record the findings of fact that the Tribunal considers material to the resolution of the issues before it and in doing so the reasoning process must be exposed as explained at [90]:The Tribunal’s duty to give reasons, however, is not satisfied merely by setting out its findings on material questions of fact and identifying the bases for those findings. The duty to give reasons carries with it the duty to expose the reasoning process. And the reasons must be sufficient to enable a party aggrieved by the decision to understand why the party lost and to decide whether the decision involved “an unwarranted finding of fact, or an error of law, which is worth challenging”: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 (Wraith) at 507 (Woodward J). Woodward J said in Wraith that the decision-maker must set out his or her understanding of the relevant law, the findings of fact on which his or her conclusions depend, especially if the facts were disputed, and the reasoning processes which led to those conclusions. His Honour also said that that should be done “in clear and unambiguous language, not in vague generalities or the formal language of legislation”… The Court at [91] set out with approval what French J had said in Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40] where in part his Honour stated:…Whether the reasoning is syllogistic or otherwise, the Tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case. These statements of principle are broadly consistent with Wingfoot at [55], although that case was concerned with different legislation involving a medical panel charged with the duty of forming its own opinion on the medical question before it, as is referred to in Wonson at [92]. As recognised in Wingfoot, there is no common law obligation on an administrative decision-maker to give reasons, and the content of any statutory obligation to give reasons is supplied by the express and implied requirements of the relevant statutory obligation: see Wingfoot at [43]-[44]. We also mention Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60 (Perry, Meagher and Kennett JJ), where the Court dealt with a ground of appeal concerned with inadequate reasons by the Tribunal at [97]-[104], and we emphasise as particularly relevant to this appeal the reasons at [103]:The applicant’s approach of singling out particular paragraphs in the reasoning for criticism tended to isolate those paragraphs from their context. Read as a whole, we think that the reasons meet the specific requirements in s 43(2B): they set out the Tribunal’s findings on material questions of fact (that is, the findings the Tribunal made on the facts that it saw as material) and refer to the evidence on which those findings were based. Beyond that, the overarching requirement to give “reasons” in s 43(2) no doubt calls for some explanation of why the findings that have been made lead to the ultimate decision. While that can properly be described as a “logical process” (eg, Secretary, Department of Employment and Workplace Relations v Homewood[2006] FCA 779; 91 ALD 103 at [40] (French J)), it does not mean that syllogistic reasoning or the express weighing of factors for and against a result is always to be expected. Much depends on the nature of the criterion to be applied. The somewhat amorphous nature of the statutory criterion in the present case meant that the Tribunal could not do much more than set out the facts it regarded as relevant (with their evidentiary basis) and the judgment to which those facts drove it.