Bevan and Tax Agents' Board of New South Wales
[2007] AATA 1162
•20 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1162
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/108
GENERAL ADMINISTRATIVE DIVISION ) Re EYYUP BEVAN Applicant
And
TAX AGENTS' BOARD OF NEW SOUTH WALES
Respondent
DECISION
Tribunal Mr S. Webb, Member Date20 March 2007
PlaceCanberra
Decision The decision under review is affirmed.
..............................................
Mr S. Webb, Member
CATCHWORDS
TAX AGENT – Registration – Fit and proper person – Qualification requirements – Relevant employment – Course of study – Qualification requirements not satisfied – Decision affirmed.
Income Tax Assessment Act 1936 ss 251JA, 251BC
Income Tax Regulations 1936 reg. 156
Hospital Benefit Fund of Western Australia Inc v Minister for health, Housing and Community Services (1992) 39 FCR 225; [1997] 655 FCA (22 July 1997)
Commissioner of Taxation v McMahon (1997) 79 FCR 127; [1997] 1087 FCA (23 October 1997)
Tax Agents Board of NSW v Aqabani (2005) 144 FCR 446; [2005] FCA 383
CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384; [1997] HCA 2
Re Scott and Tax Agents’ Board of Queensland [2001] AATA 435
Fox v Commissioner for Superannuation (No 2) (1998) 88 FCR 416; [1998] FCA 372
REASONS FOR DECISION
20 March 2007 Mr S. Webb, Member 1. Eyyup Bevan applied for registration as a tax agent in New South Wales. His application was rejected because he did not possess the requisite qualifications. Mr Bevan is unhappy with the decision and has applied for review.
2. The issue for determination by this Tribunal is whether or not Mr Bevan is a fit and proper person to prepare income tax returns and to transact business on behalf of taxpayers in income tax matters.
3. Mr Bevan asserts that he is such a fit and proper person because he is not a bankrupt and possesses sufficient qualifications. Mr Bevan says that he has relevant employment of more than 12 months duration in the past five years and has obtained the requisite academic qualifications for registration. Mr Bevan says that he has many years experience in the finance industry, being a certified financial planner, and is a member of the National Institute of Accountants with a Certificate of Public Practice. He asserts, furthermore, that he is well respected in the Turkish and Iranian communities.
4. I accept that Mr Bevan may be a respected member of the communities in which he works, however I am not persuaded that he has satisfied the qualification requirements for registration.
5. Section 251JA of the Income Tax Assessment Act 1936 provides that the Board, being the Tax Agents’ Board of New South Wales, shall register a person as a tax agent if the person, relevantly, is a ‘fit and proper person’. A person is not a fit and proper person for present purposes if the person does not hold such qualifications (whether academic, by way of experience or otherwise) as are prescribed.[1] The necessary employment and academic qualifications are prescribed by regulation 156 of the Income Tax Regulations 1936.
[1] Subparagraph 251BC(1)(b).
6. The Board drew attention to Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd and Anor [2004] FCA 843 in which Branson J considered the Accreditation Grant Principles guiding the grant of financial support to aged care providers. I am not satisfied, however, that the particularities of the decision making process involved in Kenna concerning audit reports and related timeframes are applicable in the present case. Nevertheless the Tribunal must address itself to the same question that was before the original decision maker[2] and must ‘go over again’ the process of making the decision the Board was required to make.[3] Thus the relevant date for present consideration is 16 March 2006, the date on which the Board rejected Mr Bevan’s application for registration.
[2] Hospital Benefit Fund of Western Australia Inc v Minister for health, Housing and Community Services (1992) 39 FCR 225 at 234.
[3] See Lockhart J in Commissioner of Taxation v McMahon (1997) 79 FCR 127 at 133.
7. I make the following findings concerning Mr Bevan’s employment and academic qualifications.
(a)Mr Bevan was employed by:
Ray Carnall and Associates from 24 May 2001 to 13 December 2002;
Master Financial Planning Pty Ltd from 2 January 2003 to (at least) 22 June 2005;
Master Accounting and Consulting Pty Ltd from 1 January 2002 to 31 December 2004; and
ABS Development Pty Ltd from 13 December 2003 to 13 December 2004.
Master Accounting and Taxation Pty Ltd from 4 January 2005 ongoing (I note that Mr Bevan is a director of this company, which was formed on 21 June 2004).[4]
(b)The Board does not dispute that Mr Bevan has more than 12 months relevant employment[5] in the last five years. He was employed by ABS Development Pty Ltd on a full-time basis in relevant employment from 13 December 2003 to 13 December 2004.[6]
(c)On 24 February 2005 Darren Tappouras stated that Mr Bevan was employed on a full time basis by Master Accounting and Taxation Pty Ltd from “23 June 2005 to present”.[7] However, on 22 June 2005 Mr Tappouras stated that Mr Bevan commenced employment with Master Accounting and Taxation Pty Ltd on 4 January 2005.[8] I note that that is consistent with Mr Bevan’s declaration at PTT3 folio 36. It appears from the PAYG payment summary at PTT3 folio 43 that Mr Bevan was employed by Master Accounting Plus in the period from 1 January 2005 to 30 June 2005.
(d)On 1 October 2002 Mr Bevan was granted membership of the Financial Planning Association of Australia Ltd (FPA) as a Certified Financial Planner.[9] On 8 October 2002 he was awarded a Diploma of Financial Planning by the FPA.[10] On 4 March 2004 the FPA certified that Mr Bevan completed a ‘Self Managed Superannuation Funds Program’ course.[11]
(e)On 19 November 2003 Mr Bevan was admitted as a member of the National Institute of Accountants.[12] On 23 June 2004 Mr Bevan was certified as complying with the public practice requirements of that Institute.[13]
(f)Mr Bevan is a member of the National Tax and Accountants’ Association Ltd.[14]
(g)On 22 April 1998 Mr Bevan obtained a Bachelor Degree of Commerce in Banking and Finance from the University of Canberra.[15]
(h)As at 21 December 2005 Mr Bevan was undertaking an Advanced Diploma in Accounting course at the Western Sydney Institute of Technical and Further Education (TAFE). He had completed two subjects and received ‘advanced standing’ (recognition of prior learning) in relation to 18 subjects.[16] A further 11 subjects were required to be completed for award of the Diploma as of the date of the Board’s decision.[17] I note that Mr Bevan has not yet completed the qualification.
(i)As of 6 December 2006 Mr Bevan had not completed any Accounting course at TAFE.[18]
(j)On 17 December 2004 Mr Bevan completed a Principles of Taxation Law unit at the University of New England.[19] It appears that Mr Bevan completed this unit either as part of a Graduate Certificate in Professional Accounting or a Master of Commerce course.[20] There is no evidence either qualification was completed by the date of the Board’s decision or subsequently.
[4] Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), PTT3 folio 52.
[5] As defined at subregulation 156(6).
[6] PTT3, folios 45-46.
[7] PTT3, folio 38.
[8] PTT3, folios 39-41.
[9] PTT3, folio 25.
[10] PTT3, folios 26-27.
[11] PTT3, folio 28.
[12] PTT3, folio 29.
[13] PTT3, folio 30.
[14] PTT3, folio 31.
[15] PTT3, folio 17-18.
[16] PTT3, folio 23.
[17] Exhibit R1, pp 3-4.
[18] Exhibit R1, p. 3.
[19] PTT3, folios 12 and 24.
[20] PTT3, folios 12 and T7.
8. Mr Bevan submitted that he successfully completed the Principles of Taxation Law course at the University of New England and therefore satisfies subregs 156(2)(d) and 156(4)(c). I do not agree. By his own account the purported ‘course’ was one unit that was part of a graduate Certificate or Masters course of study, which he had not completed. Completing one unit in a course of study may not satisfy the test set out in the Regulations. It is true that a course of study may comprise one or more studies in a series, where each step in the series may be considered to be a course.[21] On that construction the unit Mr Bevan completed may be within the meaning of ‘a course of study’. However, what is required is the successful completion of ‘a course of study’ in Australian income tax law ‘that is acceptable to the Board’. That test requires examination of the particular circumstances pertaining to Mr Bevan’s case.[22] Relevantly, the particular post graduate unit was one part of a longer course concerning the study of Accounting. On the material before me it is not possible to determine the extent to which the unit of study Mr Bevan completed is consistent with a course of study in Australian income tax law.
[21] I note the course outlines and information contained in Exhibits A2, A3 and A4.
[22] See Hill J in Tax Agents Board of NSW v Aqabani [2005] 383 at paragraph 33.
9. By Mr Bevan’s own account to the Board he intended to “continue to study to complete my Master of Commerce majoring in Professional Accounting through the University of New England”, including a unit “Advanced Taxation Law”.[23] Similarly, Mr Bevan’s completion of a TAFE unit ‘Income Tax Law Applications’ was but one unit of study in the Advanced Diploma of Accounting course, that he has not yet completed.
[23] PTT7, folios 66-67.
10. Nevertheless, considering Mr Bevan’s relevant employment experience and other studies, the question arises as to whether the completion of two separate units of study in Australian Taxation law in different institutions in the context of Accounting courses satisfies the prerequisite qualifications set out in the Regulations. I am satisfied that it does not. In all of Mr Bevan’s studies he has completed only two units of study in Australian taxation law. In each case the unit was one part of a course of study in Accounting. The Board submitted that a 12 month course of study in Australian taxation law would be required to be acceptable. On the material before me there is no such mandatory requirement. However, in the circumstances of Mr Bevan’s case, taking into account his previous employment, in particular his relevant employment dealing with taxation matters under the supervision of a suitable person, and his other studies and qualifications, I am not persuaded that the two units of study he completed in Australian taxation law are sufficient to be considered acceptable for present purposes.
11. Subregulations 156(2) and 156(4) set out a number of conjunctive qualification criteria. Failure to satisfy one of the conjunctive criteria means the qualification is not made out. Mr Bevan does not satisfy the criteria set out at paragraphs 156(2)(d) and 156(4)(c). It follows that he does not meet the qualifications set out at subreg 156(2) and 156(4). It is not necessary, therefore, to determine whether or not mr Bevan satisfied any other specified criteria for qualification, or the alternative equivalents permitted thereto.
12. I am satisfied that Mr Bevan does not have more than 8 years relevant full-time employment in the past 10 years or has otherwise been engaged in relevant employment, or such other employment as satisfies the criteria set out at paragraph 156(5)(a). It follows that he does not meet the qualification at subreg 156(5).
13. It follows therefore that Mr Bevan does not satisfy the prescribed qualifications at Regulation 156. That being so, Mr Bevan was not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters on 16 March 2006. There is nothing in the material before me that was not available to the Board to contraindicate that conclusion.
14. I am mindful of the authorities relied on by Mr Bevan. There is no issue that the over-arching purpose of the legislative provisions is to prevent unqualified or professionally unsuitable persons from practising as tax agents and therefore addressing the public interest in ensuring that those who are entrusted with the auditing of accounts or transacting taxation business on behalf of taxpayers in income tax matters can properly be entrusted with that task.[24] For that purpose I agree that Part VIIA of the Act is directed to ensure that the public may have confidence that registered tax agents have reached a statutory minimum standard of relevant qualification, expertise and experience. It is clear that the applicable provisions of the Act and the Regulations to which I have referred are intended to remedy the mischief that otherwise may pertain if a person who is not a fit and proper person is permitted to transact taxation business on behalf of taxpayers. To the extent that Mr Bevan took a point of statutory construction and interpretation in relation to the matters discussed by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 at 408,[25] I am not persuaded that consideration of the context of the applicable statutory provisions and the subsidiary regulations assists Mr Bevan’s case. It would be inappropriate and incorrect to disregard the minimum mandatory criteria attaching to each qualification prescribed for the purposes of paragraph 251BC(1)(b)(i) or to interpret those criteria in a manner that is not consistent with sections 251JA and 251BC of the Act. Simply put, I am satisfied that Mr Bevan does not possess sufficient relevant employment experience and he has not successfully completed sufficient study in Australian taxation law, taken separately or in combination, in the context of his other employments and studies and character references to qualify for registration as a tax agent in New South Wales.
[24] See Re Scott and Tax Agents’ Board of Queensland [2001] AATA 435 at paragraph 164.
[25] See also Fox v Commissioner for Superannuation (No 2) (1998) 88 FCR 416.
15. As the matter is resolved unfavourably to Mr Bevan for the reasons stated, it is not necessary to proceed further to consider matters raised by the parties in relation to Mr Bevan’s studies in Accounting.
16. The decision under review is affirmed.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 23 February 2007
Date of Decision 20 March 2007
Counsel for the Applicant Mr A. Powrie
Solicitor for the Applicant Powrie & Co Barristers & Solicitors
Counsel for the Respondent Mr B. Skinner
Solicitor for the Respondent Australian Government Solicitor
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