Bouffiere and Tax Agents' Board of NSW - [2007] AATA 1978

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1978
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1112

GENERAL ADMINISTRATIVE DIVISION )

Re BRIAN LESLIE JOSEPH BOUFFIERE

Applicant

And

TAX AGENTS' BOARD OF NSW

Respondent

DECISION

Tribunal Senior Member M D Allen
Date22 November 2007
PlaceSydney

Decision
The decision under review is affirmed.

.................[sgd].......................
M D Allen
Senior Member

CATCHWORDS
TAX AGENTS – application for review of decision by tax agents’ board of nsw rejecting application for reinstatement as tax agent – demonstrate fit and proper to prepare taxation returns – of good fame, integrity and character – decision under review affirmed.
LEGISLATION:
Income Tax Assessment Act 1936 sections 251BC, 251JA, 251JC and 251K(3C).
CASE LAW
Davies v Australian Securities Commission (1995) 59 FCR 221
Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board & Anor (2007) 234 ALR 618
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
REASONS FOR DECISION

22 November 2007

Senior Member M D Allen

1.      By application made the 22^nd of August 2006, the Applicant sought review of a decision by the Respondent made on 20 July 2006 not to grant his application to be registered as a tax agent.
2.      The Respondent based its decision upon the basis that the Applicant had failed to demonstrate that he was a fit and proper person to prepare taxation returns in that he was not a person of good fame, integrity and character.
3. Section 251JA of the Income Tax Assessment Act 1936 states inter alia that the Board shall register a person as a tax agent if satisfied that he or she is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters. Subsection 251BC(1) of the Act provides that a person is not a fit and proper person for the purposes of s251JA if the person is not of good fame and character.
4. I note that the Respondent in its letter advising the Applicant of its decision refers to s251JA of the Act. To my mind, the correct reference should be to s251JC of the Act as the Applicant (albeit under another name) had previously been registered as a tax agent, his first registration being in 1980. To my mind however, nothing turns upon this, as the requirements under s251JA and s254JC are identical.
5.      The term “fit and proper person” was explained by Hill J in Davies v Australian Securities Commission (1995) 59 FCR 221 at 233. In that case, which was referred to with approval by the High Court in Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board & Anor (2007) 234 ALR 618 at 624, His Honour said:
…
The phrase fit and proper person is a familiar one in the context of qualifications for offices or vocations. Discussing the phrase in a context of licenses…

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.

Continue reading Bouffiere and Tax Agents' Board of NSW

Details

AGLC: Bouffiere and Tax Agents' Board of NSW [2007] AATA 1978
Case: [2007] AATA 1978
Decision Date: 22 November 2007

CaseChat Overview and Summary

The case involved Bouffiere and the Tax Agents' Board of NSW, where the Board had rejected the applicant's application for reinstatement as a tax agent. The applicant sought a review of the Board's decision, arguing that they were fit and proper to prepare taxation returns and had good fame, integrity, and character. The dispute was heard in the Administrative Appeals Tribunal (AAT).

The primary legal issues before the Tribunal were whether the Board's decision was correct and whether Bouffiere had demonstrated that they were fit and proper to be reinstated as a tax agent. The Tribunal had to consider the evidence provided by both parties and determine if the Board's decision was lawful, reasonable, and based on relevant considerations.

In its decision, the Tribunal found that the Board's decision was supported by the evidence and was lawful and reasonable. The Tribunal concluded that Bouffiere had not demonstrated that they were fit and proper to be reinstated as a tax agent, as they had not shown that they had taken appropriate steps to rectify the circumstances that led to their initial disqualification. The Tribunal also found that the Board's decision was based on relevant considerations and was not unreasonable. Therefore, the Tribunal affirmed the decision under review.

The Tribunal's decision was affirmed, and Bouffiere's application for review was dismissed. The Tribunal found that the Board's decision was lawful and reasonable and was based on relevant considerations. The Tribunal did not find any errors in the Board's decision-making process or in the evidence considered. Bouffiere's application for reinstatement as a tax agent was therefore rejected.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		BRIAN LESLIE JOSEPH BOUFFIERE