Cameron and Tax Practitioners Board - [2015] AATA 1027

KYVS and Tax Practitioners Board [2015] AATA 1027 (17 December 2015)
Division:  TAXATION AND COMMERCIAL DIVISION
File Number:  2015/6047
Re:  KYVS
APPLICANT

And:TAX PRACTITIONERS BOARD
RESPONDENT

DECISION
Tribunal  Deputy President S A Forgie
Date  17 December 2015
Place  Melbourne

The Tribunal decides to:

dismiss the applicant’s application for review of a decision by the Taxation Practitioners Board dated 28 April 2015 because:
(1)there is no enactment providing that applications may be made to the Tribunal for review of the decision made by the Taxation Practitioners Board; and
(2) consequently, the Tribunal does not have power to review that decision.
..........[sgd]..…………………….
Deputy President

CATCHWORDS – PRACTICE AND PROCEDURE – jurisdiction –applicant sought review of decision made on complaint regarding alleged fraudulent conduct in 1980s – no enactment permitting an application to be lodged for review of that decision – no jurisdiction to review decision.
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 25(1)(a), 42A(4) and 43(2A)
Tax Agent Services Act 2009 s 60-5, 60-15 and 70-10
Freedom of Information Act 1982 s 4, 49 and 51A
Privacy Act 1988 s 6(1)
CASES

Commissioner of Taxation v Osborne [2003] FCA 387; (1990) 26 FCR 63; 74 ALD 407;
37 AAR 169
OTHER MATERIAL
REASONS FOR DECISION

On 19 November 2015, KYVS applied for review of a decision made by the Taxation Practitioners Board (Board) regarding a complaint he had made about a person whom he alleged had fraudulently lodged taxation returns in relation to a Family Trust in the 1980s. I will call that person “XY”. KYVS wanted to have the taxation documents returned to him so that he could lodge amended returns. The Board had decided that it did not have jurisdiction to deal with the allegation as it could only deal with breaches of the Code of Professional Conduct as it applied to professional conduct occurring after 1 March 2010 and had no power to require the return of documents. It also noted that KYVS had concerns that XY might have been defrauding the Australian Taxation Office (ATO). KYVS took umbrage at the Board’s decision noting that, while he had concerns about XY’s activities in relation to the ATO, he had never suggested that XY might currently be defrauding the ATO. He sought review of the Board’s decision in order to correct that statement. I have decided that the Tribunal does not have jurisdiction to review either that statement or the Board’s decision as a whole. I gave my reasons for reaching that conclusion at the conclusion of the hearing I held to consider jurisdiction.

KYVS has asked for written reasons for my decision as he is entitled to do under s 43(2A) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The written reasons must comply with s 43(2B) of that legislation and so may be “more elaborate”[1] than those given orally.
[1] Commissioner of Taxation v Osborne [2003] FCA 387; (1990) 26 FCR 63; 74 ALD 407; 37 AAR 169 at…

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 Cameron and Tax Practitioners Board

Details

AGLC: Cameron and Tax Practitioners Board [2015] AATA 1027
Case: [2015] AATA 1027
Decision Date: 17 December 2015

CaseChat Overview and Summary

The applicant, Mr Cameron, sought a review of a decision made by the Taxation Practitioners Board in relation to a complaint concerning alleged fraudulent conduct in the 1980s. The Tribunal was asked to determine whether it had jurisdiction to review the decision of the Board. The crux of the matter was whether the Tribunal had the authority to review a decision made by the Board regarding conduct that occurred outside the current legislative framework. The applicant argued that the Tribunal had jurisdiction to review the decision, while the Board contended that the Tribunal lacked such jurisdiction.

The court had to decide whether there was any enactment that permitted the Tribunal to review the decision made by the Taxation Practitioners Board. The court examined the relevant legislation and case law to determine if any provision allowed the Tribunal to review such decisions. The court found that there was no enactment that permitted an application to be made for review of the decision in question. Consequently, the Tribunal did not have the power to review the decision.

Based on its findings, the Tribunal dismissed the applicant's application for review. The Tribunal concluded that it did not have jurisdiction to review the decision made by the Taxation Practitioners Board because there was no applicable enactment that provided for such review. The Tribunal's decision was based solely on the lack of jurisdictional authority stemming from the absence of a relevant enactment.

The Tribunal ordered the dismissal of the applicant's application for review of the decision made by the Taxation Practitioners Board. The dismissal was based on the absence of any enactment that permitted an application to be made for review of the decision, and the consequent lack of jurisdiction to review that decision.

Orders

Orders of the court

The Tribunal decides to:

dismiss the applicant’s application for review of a decision by the Taxation Practitioners Board dated 28 April 2015 because:

(1) there is no enactment providing that applications may be made to the Tribunal for review of the decision made by the Taxation Practitioners Board; and

(2) consequently, the Tribunal does not have power to review that decision.

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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