Borella and Tax Practitioners Board - [2023] AATA 3748

Borella and Tax Practitioners Board [2023] AATA 3748 (15 November 2023)

Division: TAXATION AND COMMERCIAL DIVISION

File Number: 2022/4204

Re: Terry Borella

APPLICANT

And Tax Practitioners Board

RESPONDENT

DECISION

Tribunal: Senior Member G Lazanas

Date: 15 November 2023

Place: Sydney

The decision under review is affirmed

......................[Sgd]..................................................
Senior Member G Lazanas

Catchwords

TAX AGENTS – breach of Code of Professional Conduct in Tax Agents Services Act 2009 (Cth) – tax agent registration termination – decision to preclude applicant from applying for tax agent registration for two years – whether applicant complied with taxation laws in the conduct of his personal affairs –where applicant committed repeated breaches of personal tax obligations – where applicant did not respond to an investigation notice from the Tax Practitioners Board – where applicant was given multiple opportunities to rehabilitate – whether applicant a fit and proper person – reckless behaviour - reviewable decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 42C

Tax Agent Services Act 2009 (Cth) ss 2-5, 20-5, 20-15, 30-10, 30-15, 30-20, 30-25, 30-30, 40-5,
40-25, 60-125, 90-1,
Income Tax Assessment Act 1997 (Cth) s 995-1 Cases
Alan Gough and Vision Business Group Pty Ltd and Tax Practitioners Board [2022] AATA 2757 Delis v Tax Practitioners Board [2016] FCA 570
Kishore and Tax Practitioners Board [2017] AATA 271
Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd (2019) 369 ALR 644 Pappalardo v Tax Agents’ Board of Victoria [2003] AATA 990
Re Li and Tax Practitioners Board [2014] AATA 212
Re McCarthy and Tax Practitioners Board [2021] AATA 641 Re Proh and Tax Agents’ Board of Victoria [2010] AATA 149 Ridden and Tax Practitioners Board [2020] AATA 422 Shmuel and Tax Practitioners Board [2019] AATA 2168
Stasos v Tax Agents’ Board of New South Wales (1990) 21 ATR 974 Su v Tax Agent’s Board of South Australia (1982) 61 FLR 1
Toohey and Tax Agents’ Board of Victoria [2009] AATA 603 Worsley and Tax Practitioners Board [2022] AATA 3742

REASONS FOR DECISION

Senior Member G Lazanas 15 November 2023 INTRODUCTION

1.The Applicant, Mr Terry Borella, seeks a review of the decision of the Respondent, the Tax Practitioners Board, dated 31 March 2022 to terminate his tax agent registration pursuant to subparagraph 60-125(2)(b)(ii) and paragraph 40-5(1)(b) of the Tax Agent Services Act 2009 (Cth) (TASA) and to preclude him from applying for registration as a tax agent for a period of two years from the date the termination of his tax agent registration takes effect pursuant to s 40-25(1) of the TASA (Reviewable Decision).

2.The Reviewable Decision was based on the Board’s findings that Mr Borella had breached ss 30-10(2) and 30-10(14) of the Code of Professional Conduct (Code) contained in the TASA. He had failed to comply with the taxation laws in the conduct of his personal affairs and failed to respond to a notice from the Board. Consequently, the Board decided that Mr Borella was not a fit and proper person pursuant…

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: [2023] AATA 3748
Decision Date: 15 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Borella and the Tax Practitioners Board (TPB). The dispute concerned the TPB's decision to terminate Mr Borella's registration as a tax agent and to preclude him from applying for registration for a period of two years. This decision was based on findings that Mr Borella had breached the Code of Professional Conduct set out in the *Tax Agents Services Act 2009* (Cth).

The primary legal issues before the Tribunal were whether Mr Borella had complied with taxation laws in the conduct of his personal affairs, whether he was a fit and proper person to be a registered tax agent, and whether the TPB's decision to terminate his registration and impose a two-year preclusion period was justified. The Tribunal was required to assess the seriousness of Mr Borella's conduct, including repeated breaches of his personal tax obligations and his failure to respond to an investigation notice from the TPB, despite being afforded multiple opportunities to rectify his conduct.

The Tribunal affirmed the TPB's decision, finding that Mr Borella's repeated breaches of his personal tax obligations demonstrated a lack of compliance with taxation laws. It further found that his failure to engage with the TPB's investigation and his overall conduct indicated that he was not a fit and proper person to be a registered tax agent. The Tribunal concluded that Mr Borella's behaviour was reckless and that the TPB had acted appropriately in terminating his registration and imposing the two-year preclusion period, as this reflected the seriousness of his non-compliance and the need to maintain the integrity of the tax agent profession.

Orders