Beckett v Tax Practitioners Board

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FEDERAL COURT OF AUSTRALIA

Beckett v Tax Practitioners Board [2022] FCA 930  

Appeal from: Beckett and Tax Practitioners Board [2021] AATA 1234
File number(s): NSD 488 of 2021
Judgment of: ABRAHAM J
Date of judgment: 12 August 2022
Catchwords:

ADMINISTRATIVE LAW – termination of tax agent registration – appeal from Tribunal’s decision affirming decision of the Tax Practitioners Board terminating the applicant’s tax agent registration – where Board found applicant is not a “fit and proper” person – where applicant convicted of two offences of using a false document to influence the exercise of a public duty under s 254 of the Crimes Act 1900 (NSW) – where applicant claims Tribunal made incorrect findings as to the nature and identity of the applicant’s convictions – where applicant claims Tribunal gave inadequate reasons, denied procedural fairness, and misapplied s 20-45(b) of the Tax Agent Services Act 2009 (Cth) – appeal dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Tax Agent Services Act 2009 (Cth)

Crimes Act 1900 (NSW)

Taxation Administration Act 1996 (NSW)
Cases cited:

Beckett v Tax Practitioners Board [2019] FCA 353

Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Dornan v Riordan (1990) 24 FCR 564

Minister for Immigration and Ethnic Affairs v Wu ShanLiang [1996] HCA 6; (1996) 185 CLR 259

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417

Sent v Commissioner of Taxation [2012] FCA 382; (2012) 128 ALD 34

Stasos v Tax Agents’ Board [1990] FCA 379; (1990) 21 ALD 437

Toohey v Tax Agents Board of Victoria [2007] FCA 431; (2007) 171 FCR 291

Wonson v Comcare [2020] FCAFC 76; (2020) 377 ALR 596
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 88
Date of last submission/s: 20 July 2022
Date of hearing: 22 July 2022
Counsel for the Applicant: V M Heath
Solicitor for the Applicant: HNT Legal
Counsel for the Respondent: L T Livingston SC with W Liu
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

NSD 488 of 2021
BETWEEN:

BARBARA BECKETT

Applicant
AND:

TAX PRACTITIONERS BOARD

Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

12 AUGUST 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The applicant is to pay the costs of the respondent to be agreed or assessed.

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


REASONS FOR JUDGMENT

ABRAHAM J:

  1. The applicant appeals a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of the Tax Practitioners Board (Board) to terminate her tax agent registration under s 40-5(1)(b) of the Tax Agent Services Act 2009 (Cth) (TAS Act) on the basis that the applicant was not a fit and proper person to be registered as a tax…

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Details
Case
[2022] FCA 930
Decision Date

CaseChat Overview and Summary

The case of Beckett v Tax Practitioners Board involves an appeal by the applicant, a registered tax agent, against a decision of the Administrative Appeals Tribunal (AAT) that upheld the termination of her tax agent registration by the Tax Practitioners Board (TPB). The TPB terminated the applicant's registration based on a finding that she was not a "fit and proper" person due to her convictions for using a false document to influence the exercise of a public duty. The applicant contends that the AAT made incorrect findings regarding the nature and identity of her convictions, denied her procedural fairness, and misapplied the relevant statutory provisions.

The primary legal issues before the court were whether the AAT erred in its findings about the nature and identity of the applicant's convictions, whether the AAT provided adequate reasons for its decision, whether the AAT denied the applicant procedural fairness, and whether the AAT misapplied the statutory provisions under the Tax Agent Services Act 2009 (Cth). The applicant argued that the AAT incorrectly identified her convictions and added a non-existent conviction, which was a fundamental error affecting the AAT's statutory function.

The court found that the AAT's determination of the applicant's fitness and propriety was properly based on the evidence and the statutory considerations. The court held that the AAT correctly identified the applicant's convictions and considered the relevant factors in its reasoning. The AAT's reasons were sufficiently detailed, and the applicant was given an opportunity to present her case. The court also found that the AAT appropriately applied the statutory provisions in reaching its decision. Therefore, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The applicant is to pay the costs of the respondent to be agreed or assessed.

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

Background

Background to the litigation

For the reasons below, the appeal is dismissed.Factual background The applicant became a registered tax agent in 1987. In 2003, the applicant became an approved person under the Electronic Duties Returns (EDR) Scheme operated by the NSW Office of State Revenue (OSR) pursuant to the Taxation Administration Act 1996 (NSW). As part of the Scheme, the applicant was approved to stamp transfers of real property upon receipt of a Notice of Assessment. The applicant was required under the Scheme to have the duty payable available to her prior to stamping a transfer, except where the duty payable would be collected at settlement. The applicant was required to pay the stamp duty collected to the OSR on a weekly basis. In 2009 and 2010, the applicant assisted a client to transfer a property and was aware, at the relevant times, that the transfer was liable to ad valorem duty. On 10 June 2010, the applicant used the EDR system to stamp the transfer of the property from a trust to the client. The duty was assessed at $29,240.00 and the penalty interest was assessed at $17,416.29; a total amount of $46,656.29 was payable. At the time of the transfer, the applicant did not have the amount owing available. Despite that, on 11 June 2010, the applicant processed the transfer of the property to the client. On 10 September 2010, the OSR informed the applicant that her approval under the EDR Scheme was suspended by reason of her failure to remit the payments due. The applicant received a statutory notice requiring her to attend an interview with the OSR on 28 September 2010. On 28 September 2010, the applicant attended the OSR interview and was informed that it was an offence to make false or misleading statements to a taxation officer. The applicant was also advised that she did not have to say or do anything that may tend to incriminate her. The applicant took an oath to tell the truth. During the interview, the applicant produced photocopies of two bank cheques, being copies that she had altered to give the appearance that the bank cheques had been issued on 26 September 2009, in an attempt to demonstrate, falsely, that she had the funds for payment at the time that the transfer was stamped. The bank cheques had been purchased only a day before the OSR interview and both cheques were subsequently cancelled. The applicant also informed the OSR officers that the original bank cheques had been picked up and taken by a bank representative at the settlement of the purchase, which was untrue. The applicant then paid the amount owing around the time of the OSR interview. The applicant was first indicted in respect of her conduct on 29 May 2013. However, those charges were later changed, and on that occurring, the applicant immediately pleaded guilty, and successfully sought the inclusion of the remaining charge as a Form 1 matter to be dealt with on the sentencing of the principal charge. On 7 September 2016, the applicant pleaded guilty to two counts of using a false document to influence the exercise of a public duty under s 254(b)(ii) of the Crimes Act 1900 (NSW) and on 24 February 2017 was sentenced on two counts to a terms of imprisonment of 20 months and 18 months, to be served concurrently. The sentences were suspended upon the applicant entering into a good behaviour bond. That bond subsequently expired without breach.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Grounds 6A and 6 are dismissed.Conclusion The applicant has not established the grounds of appeal. Accordingly, the appeal is dismissed with costs.

Ratio Decidendi

Legal Principle Established

The next heading in the Tribunal’s reasons is “Fitness and propriety” and from [55] until the Tribunal’s conclusion at [83]-[84], the Tribunal determines the issue it set out at [9]. At [55]-[58], the Tribunal considers the authorities dealing with fitness and propriety, and at [59] the Tribunal considers the offences of which the applicant was convicted, in light of the authorities. At [63], the Tribunal considers the protection of the public as relevant to the question of fitness and propriety. At [64]-[68], the Tribunal considers the reports of Ms Anne Lucas, forensic psychologist, and Dr Richard Furst, forensic psychiatrist. At [69], following consideration of passages recited from the reports and footnoting references to the evidence, the Tribunal concludes that the applicant “did not properly appreciate the gravity of her behaviour or fully accept responsibility for it”. At [72]-[78], the Tribunal considered a number of extenuating or mitigating factors referred to by the applicant, and then as part of the balancing exercise, at [79], the Tribunal considered the public interest. At [81]-[82], the Tribunal reflects on the conclusion it reached from conducting the balancing exercise.ConsiderationGrounds 1A and 1B: nature and identity of the convictions Ground 1A, in summary, complains that the Tribunal erred by finding at [10(a)] and [59] of its reasons that the applicant had been convicted of forging, and had forged, bank cheques, and that the applicant was convicted of lying under oath in an interview with OSR officers. Related to this is Ground 1B, that the Tribunal failed to give reasons as to how it made the findings that form the basis of Ground 1A. The impugned paragraphs relied on as containing error are in the following terms. The first, [10(a)], is as follows: [10]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; This paragraph appears in the reasons under the heading “Issue”. The second, [59], is as follows: [59]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. The applicant submitted that there was no evidence that she forged bank cheques, that she was convicted of doing so, or that she was convicted of lying under oath in an interview with OSR officers. She submitted that those findings made in relation to her convictions are incorrect. She submitted that the cheques themselves were not forged, and that there is a “world of difference” between making a false file copy of a document “for a wrong purpose” and “forging negotiable instruments”, a distinction which escaped the Tribunal, or about which the Tribunal made a serious error of misdescription. The applicant emphasised that this was a material misdescription of a mandatory consideration in respect of the convictions: see s 20-45(b) read with ss 20-15, 20-A, 90-1 and 40-5 TAS Act. Although it was accepted that the offence of lying under oath which was on the Form 1 was a matter which the Tribunal could take into account, the applicant submitted that offence could not be characterised as a conviction for the purpose of consideration under s 20-45b TAS Act. She submitted that the errors as to the identity, nature and substance of the convictions and the erroneous addition of a non-existent conviction (that of lying under oath) in paragraphs [10(a)] and [59] are errors going to the heart of the discharge of the Tribunal's statutory function.