Carbery & Associates Pty Ltd and Tax Agent's Board of Queensland
[2001] AATA 107
•13 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 107
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/340
GENERAL ADMINISTRATIVE DIVISION )
Re Carbery & Associates Pty Ltd
Applicant
And Tax Agents' Board of Queensland
Respondent
DECISION
Tribunal Mr R D Fayle, Senior Member
Date13 February 2001
PlacePerth
Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
..........(sgd RD Fayle)........
Senior Member
CATCHWORDS
INCOME TAX –TAX AGENTS – Re-registration pursuant to section 251JC of the Income Tax Assessment Act 1936 -whether tax agent fit an proper person - tax agent convicted for failing to lodge personal income tax returns – failure to respond to many requests by Tax Agents' Board for information and by clients – failure to notify of change of address for service of notice – ill health as a factor.
Income Tax Assessment Act 1936; ss251A, 251BC, 251JC
Taxation Administration Act 1953; ss 8A, 8C, 8E
Dahia v Tax Agents' Board of Victoria 97 ATC 2125
Re: Houvardes and Tax Agents' Board of New South Wales 91 ATC 2032
Re: Su and the Tax Agents Board, South Australia 82 ATC 4284
Stasos v Tax Agents' Board of NSW 90 ATC 4950
REASONS FOR DECISION
13 February 2001 Mr R D Fayle, Senior Member
Carbery & Associates Pty Ltd, a company registered in New South Wales on 12 August 1987 ("the applicant") was, from 1991 or thereabouts, a registered tax agent whose nominee at relevant times was Mr Paul Anthony Carbery ("Mr Carbery"). His spouse, Mrs Amanda Carbery was a director with Mr Carbery until she resigned on 31 January 1999 leaving him as the sole director. Mrs Carbery was an authorised signatory for the tax agency registration. On 24 August 2000 the Tax Agents' Board of Queensland ("the respondent") wrote to the applicant informing it that its application to re-register as a tax agent was refused. That letter set out the respondent's reasons for its decision. On 18 September 2000, Mr Carbery, on behalf of the applicant, applied to this Tribunal for a review of that decision. In the meantime the Tribunal granted the applicant's request for a stay order. The Tribunal heard the matter on 23 November 2000 but it was not then finalised due to the need to grant the applicant further time to provide more evidence and for parties to make written submissions. That time has since expired. These findings are based on evidence before the Tribunal.
Mr Carbery represented the applicant but was otherwise unrepresented. Mr Timothy Burrows of Australian Government Solicitors Office represented the respondent. The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and the following exhibits were taken into evidence:
A1Carbery & Associates Pty Ltd document dated 22 April 1999, headed "Facsimile Transmission";
A2Draft letter (never sent) from Mr Carbery to the respondent bearing date 4 June 2000;
A3Letter Cass Legal Group to Mr Carbery dated 19 October 1999 and attached notice of demand;
A4Letter from Mr Carbery to the Tribunal dated 26 October 2000;
A5(a)Testimonial Ian Droney
A5(b)Testimonial Henk Woning
A5(c)Testimonial Wilf Matusch
A6 Letter Dr Chris Carter dated 5 September 2000
A7Letter Dr Warren Saint dated 9 October 2000
A8Report Dr Chris Carter (Centrelink) dated 25 September 2000
A9Report SKG Radiology dated 25 July 2000
A10Centrelink medical certificate dated 8 Deember1999
A11Centrelink medical certificate dated 19 September 2000
A12Suncorp Income Protection claim form (4 pages) and treating doctor's report (3 pages)
A13 Letter to Mr Carbery from Richard W O'Neill & Associates and statement of account
A14Notice of application re dissolution of marriage and copy of decree nici
A15Business Development Lawyers' letter dated 17 August 2000 to Mr Carbery and attached demand
A16Facsimile cover sheet dated 8 November 1999 from Mr John Dobb
A17Tax invoice from Perth Computer Base dated 16 August 2000
A18Ansett Air Freight statement dated 9 August 2000
A19Tax invoice National Mini Storage dated 2 October 2000
A20Tax invoice HandiSoft Software dated 26 October 2000
A21Health Services Australia report of Julie Y Meager, dated 7 November 2000 (received subsequent to hearing)
R1Lodgement history of income tax returns for Paul Carbery and associated enterprises – financial years 1992 to 2000 inclusively
R2Report Dr Chris Carter dated 18 December 2000 (received subsequent to hearing)
R3Letter from respondent dated 6 December 2000 with attachment signed by Kathy Laurie on 6 December 2000, (received subsequent to hearing)
The respondent refused to re-register the applicant as a tax agent in accordance with subsection 251JC(2) of the Income Tax Assessment Act 1936 ("the Act") and resolved that decision pursuant to subparagraph 251JC(1)(c)(i) of the Act. Those provisions are located in Part VIIA, Division 3, Subdivision A of the Act and relate to the registration of registered tax agents, a term defined in s251A of the Act to mean:
251A In this Part, unless the contrary intention appears:
…
"registered tax agent" means a person or partnership who or which is registered as a tax agent in pursuance of this Part;
Section 251A also relevantly includes the following definition:
"serious taxation offence" means:
(a) an offence against section 29D or 86A of the Crimes Act 1914, being an offence that relates to a tax liability within the meaning of the Taxation Administration Act 1953;
(b) an offence against:(i) section 6, 7 or 7A of the Crimes Act 1914; or
(ii) subsection 86 (1) of the Act by virtue of paragraph (a) of that subsection;
being an offence that relates to an offence of a kind referred to in paragraph (a) of this definition; or
(c) an offence that is:(i) a taxation offence within the meaning of Part III of the Taxation Administration Act 1953; and
(ii) punishable on conviction by either or both of the following:
(A) a fine exceeding $2,000;
(B) imprisonment.
…
Section 251JC states:
251JC Re-registration of tax agents
(1) The Board shall re-register the applicant as a tax agent if the applicant satisfies the Board that:
(a) if the applicant is a natural person:(i) the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and
(ii) the applicant is not an undischarged bankrupt;
(b) if the applicant is a partnership:(i) a partner specified in the application as the original nominee of the partnership is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(ii) in the case of each partner who is a natural person - the partner:
(A) has attained the age of 18 years at the date on which the application is made; and
(B) is of good fame, integrity and character;(iii) in the case of each partner that is a company - each executive officer of the company:
(A) has attained the age of 18 years at the date on which the application is made; and
(B) is of good fame, integrity and character; and(iv) there is no partner who is an undischarged bankrupt;
(c) if the applicant is a company:(i) a person employed by the company and specified in the application as the original nominee of the company is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(ii) each executive officer of the company:
(A) has attained the age of 18 years at the date on which the application is made; and
(B) is of good fame, integrity and character;(iii) if the company is a non-exempt company—the company is a company in which qualified directors have a substantial interest; and
(iv) the company has not gone into liquidation; and
(d) in all cases—the applicant has not permanently ceased to carry on business as a tax agent.(2) The Board shall refuse to re-register the applicant in any other case.
(3) Where a Board makes a decision refusing to re-register an applicant as a tax agent, the Board shall cause to be served on the applicant a notice in writing setting out that decision and giving the reasons for that decision.
(4) Where:
(a) a Board makes a decision refusing to re-register an applicant as a tax agent; and
(b) notice of that decision was served on the applicant at a time (in this subsection called the "notice time) after the time (in this subsection called the "expiry time) when the existing registration ceased to be in force;
the applicant shall be taken to have been registered as a tax agent during the period commencing at the expiry time and ending at the notice time.
251BC Fit and proper persons to prepare income tax returns
(1) Without limiting the generality of an expression used in this Part, but subject to this section, a person is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, as at a particular time, if:
(a) the person is not a natural person;
(b) both of the following conditions are satisfied:(i) the person was not registered as a tax agent, or as a nominee, for the purposes of this Part immediately before the commencement of section 39 of the Taxation Laws Amendment Act (No. 2) 1988;
(ii) the person does not hold such qualifications (whether academic, by way of experience or otherwise) as are prescribed;
(c) the person has not attained the age of 18 years;
(d) the person is not of good fame, integrity and character;
(e) the person has been convicted of a serious taxation offence during the previous 5 years; or
(f) the person is under sentence of imprisonment for a serious taxation offence.(2) Nothing in paragraph (1) (e) or (f) limits the generality of paragraph (1) (d).
(3) Where:
(a) a Board is required, in considering an application for:(i) re-registration as a tax agent; or
(ii) re-registration of a nominee of a tax agent;
to decide whether the Board is satisfied that a particular person is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters;
(b) the person is not under sentence of imprisonment for a serious taxation offence; and
(c) the Board is satisfied that, because of special circumstances:(i) a conviction of the person;
(ii) the doing of an act or thing by the person; or
(iii) an omission of the person;
should be disregarded;
the Board may, in making the decision referred to in paragraph (a), disregard the conviction, the doing of the act or thing or the omission, as the case requires.(4) For the purposes of this section:
(a) a person who has been released from serving a part of a sentence of imprisonment on parole or upon licence to be at large shall be taken to be under sentence of imprisonment during any period during which action can be taken by way of requiring the person to serve the whole or a part of the remainder of that sentence; and
(b) a person who has been released by a court from serving the whole or a part of a sentence of imprisonment upon the person giving a good behaviour security shall be taken to be under sentence of imprisonment during any period during which action can be taken for a breach of a condition of that security.(5) A reference in subsection (4) to a good behaviour security given by a person is a reference to a security given by the person, with or without sureties, by recognisance or otherwise, that the person will comply with conditions relating to his or her behaviour.
In its letter of 24 August 2000 to the applicant notifying it of the refusal (T47) which has led to these proceedings, the respondent stated, inter alia:
"The Board considered telephone conversations between yourself and the Secretary during June 00. The Board noted that in your conversation of 30 June 00, you indicated that you would provide a response to the Board, with a letter from your treating physician. The Board noted that as at the time of its meeting on 18 August 2000, that no written response to these serious matters had been received."
That letter then notifies the applicant that for the following reasons the Board is satisfied that re-registration as a tax agent should be refused under the provisions of section 251JC of the Income Tax Assessment Act 1936:
"In arriving at their decision the Board had considered the following:
1 The issues raised in the 'show cause' letter dated 7 March 2000.
2Your failure to respond to these matters in writing as required by the Board's letter of 7 March 2000.
3 Your failure to lodge your 1999 tax return.
Whilst this Tribunal is reviewing the decision of the respondent to refuse re-registration as mentioned, it is not bound by its reasons and must review the matter de novo, in the light of evidence before it. As will emerge, the principal issue is whether Mr Carbery is "a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters" in terms of s251JC(1)(c)(i), and this relates also to whether Mr Carbery is "a person of good fame, integrity and character" in terms of s251BC(d) of the Act.
Mr Carbery gave evidence, was cross-examined and was asked a number of questions put to him by the Tribunal in the course of its hearing. It has to be said that Mr Carbery's demeanour was such that he left an impression of not being organised or adequately prepared for the hearing. When asked questions he was often somewhat confused, evasive, inconclusive and vague. These impressions usually followed when he was asked questions in respect of which either he did not recall the facts asked, or that it may have been concluded by him that an honest answer may not have assisted his cause. These matters will be alluded to in context in the course of the discussion of the relevant
The evidence is that the applicant's issued share capital was $2.00 being an A class share issued to each of Mrs Carbery and Mr Carbery, and Mr Carbery was the sole director and secretary (T25). The company was registered on 12 August 1987 initially having a different name. The company was the vehicle used by Mr Carbery to carry on in Queensland, the business of tax agent from some time in 1991. He was the original nominee of the applicant, for the purpose of registration as a tax agent pursuant to s251JA of the Act. The authorised signatories under the registration were each of Mrs and Mr Carbery.
Prior to commencing the tax agency practice through the applicant, Mr Carbery had some commercial accounting experience, having obtained a tertiary qualification in accountancy. The tax agency business was commenced with the aid of another unrelated person, Mr Kenneth Biggs, but that arrangement ceased some time in 1992. At the height of its practice Mr Carbery said that the applicant boasted some "600 corporate clients". However for whatever reason, in 1995, the applicant sold off about two-thirds of those and settled on between 200 and 250, mainly corporate clients for which annual income tax returns were prepared. Mr Carbery said his turnover fell from about $100,000 in 1995 to $40,000 some time later when he became sick but picked up to about $75,000 just prior to 1999. He said that a major set-back occurred when on 22 January 1999, when his spouse, who had assisted him in the practice, left him. Apparently this was unexpected. It resulted in the need to sell the former family home following a court order. Because the applicant was then carrying on its business from the family home, Mr Carbery told the Tribunal that these events resulted in him making a decision to take a break from the business. He said that soon after his spouse left him he found it very hard to cope and "was in a run-down state" and was concerned that "I didn't then have the strength or will to get other premises and re-establish myself". Apparently at the time Mr Carbery made inquiries of Centrelink to establish his possible entitlement to "sickness benefits". And it was not long thereafter that he moved to Perth to live with his parents, the object of which was to recover from the depression he was then experiencing and which was affecting his ability to conduct his business. He told the Tribunal that he left the tax agency files initially with his former office assistant who stored them beneath her house. He was able, from time to time, to access those files with the aide of his former employee, however, when she moved residences those files were put in locked storage in Narrang, Queensland and no one locally then had access to them. He told the Tribunal that he brought with him 30 or 40 incomplete files, with a view to completing the work in Perth. However, it would appear that nothing much, if anything happened to progress those files, although Mr Carbery's evidence in this regard is equivocal.
When asked questions about what actions he took to notify the clients of the applicant that he would be closing down operations in Queensland and moving to Perth for a time, Mr Carbery was very vague. At best the Tribunal can conclude that no notice was sent to any client, by mail, facsimile, e-mail or otherwise, to explain the then intended hiatus in service, no public notice was published in any relevant daily paper, and no concerted effort was made to ensure all clients were aware of what was about to happen or where he might be contacted in future. Mr Carbery told the Tribunal that he did mention his intentions to those clients with whom he spoke at the time and similarly that his employee was also instructed to advise any client with whom she may have spoken at the time. There is of course, no corroboration of this evidence and because of its self-serving nature and Mr Carbery's questionable veracity before the Tribunal, little weight can be given it.
There are two separate but critical events central to the refusal to re-register the applicant as a registered tax agent. These were firstly, the failure by Mr Carbery to provide a factual answer to a question raised in the application form for re-registration and his continual failure to provide written responses to the respondent in relation to relevant questions and issues raised concerning his application for re-registration. The second arises from complaints by certain clients to the respondent about the conduct of the tax agency business. In addition, also relevant is the applicant's own record of failure to file his personal income tax returns as and when due, and his medical condition. The evidence of these matters is now discussed.
Failure to provide a full and true answer in the application formOn 15 November 1996 the respondent wrote to the applicant (T5) relating to its then application to re-register as a tax agent. In approving the application before it, to extend the registration till 15 June 1998, it noted:
"that income tax returns for (a) Paul Carbery had not been lodged for years 1990, 1991, 1992, 1993, 1994, 1995; (b) Carbery & Associates Pty Ltd had not been lodged for years 1993, 1994; and (c) Carbery Family Trust had not been lodged for years 1993, 1994".
The letter then states:
"If there is no satisfactory explanation for your failure to lodge your returns and if it comes to the attention of the Board that you have been convicted for these offences or evidence is put before the Board that your neglect of your own income tax affairs has led to a relationship with the Australian Taxation Office which prejudices your clients' income tax affairs, the Board may decide to call upon (you) to show cause why it should not cancel or suspend your registration."
On 24 April 1998 the applicant lodged a further application for re-registration as a tax agent as the existing one was to expire on 15 June 1998. A copy of the form appears at T6. The cover page of the application contains relevant instructions and information. It includes this notation at the foot of the page:
"NOTE: Answer all questions fully. If there is insufficient space, attach details on a separate sheet of paper."
The "declaration" at the conclusion of the application, signed by Mr Carbery on 22 April 1998, declares that "the information in this application is, to the best of my knowledge, information and belief, true and correct in every particular".
Paragraph 9 of the application form sets out a question and provides response options of "No" and "Yes – Please attach full details", one of which boxes should be marked. The question is:
"9. Have you, as an individual tax agent, or any person listed at question 7, been convicted of any offence, or been placed under sentence for any offence (including any offences under any Act administered by the Commissioner of Taxation), against the laws of Australia, a State, Territory or any other country during the previous 5 years? Ensure all convictions are disclosed." [Emphasis added]
Only the "no" box was marked with an "x". The other was left blank.
T7 is an internal memo of the respondent, dated 23 November 1998, noting that Mr Carbery "was convicted on 29 August 1996 in the Brisbane Magistrates' Court and fined $1,800 with $51.10 costs for failure to comply with a notice to lodge his 1992 – 1996 (incl) returns." And it also states: "Amanda Carbery – Same as above in all respects".
When asked about the obvious discrepancy between the facts and the answer which he provided to paragraph 9 of the application form, Mr Carbery said that he had contacted the respondent's office and was told that unless the conviction was of a "serious tax offence" then there was no need to disclose it. There is no apparent record of such a telephone conversation. Nevertheless, even if Mr Carbery is telling the truth in this respect, in the opinion of the Tribunal, for him to have answered the specific question "no" is tantamount to a deliberate suppression of information sought. This impression is particularly so in the light of the respondent's letter of 15 November 1996 (T5). A full and truthful answer may not have assisted the applicant's re-registration. In the opinion of the Tribunal, for reasons provided later, the convictions were convictions of a "serious tax offence" as that term is defined in s251A of the Act. It was incumbent upon Mr Carbery, in the circumstances, to disclose the facts. In any event and in the Tribunal's opinion, the failure, in the relevant circumstances, of Mr Carbery to disclose this critical piece of information raises questions about his honesty and integrity. The Tribunal notes that section 8C of the Taxation Administration Act 1953 makes it an offence (if convicted) for refusing or failing, as and when required, to furnish a return to the Commissioner of Taxation. The penalty, upon conviction for a first offence, is provided for in s8E(1) of that Act. It is a fine not exceeding $2,000. But the penalty under s8E(2) for conviction of a second offence is potentially $4,000. That is, for reason that he was convicted and fined for failing to lodge five years' income tax returns, of itself alone, is a sufficient disqualifying factor for the applicant's re-registration. The requirements of s251BC relate to whether Mr Carbery, the applicant's nominee, is a fit and proper person to prepare income tax returns. Paragraph s251BC(1)(e) provides that a person, prima facie, is not a fit and proper person etc if the person has been convicted of a serious tax offence during the previous 5 years. Interestingly, subsection 251BC(3) gives the respondent Board a qualified discretion to disregard any such conviction in deciding the issue. These matters are again addressed later in these reasons.
Further to, and in conclusion of, this particular matter, the Tribunal simply observes that when asked questions in relation to his failure to answer fully and truthfully question 9 (T6), Mr Carbery's demeanour was such that he gave no indication that he had done anything wrong and the fact that the convictions were technically, in his opinion, not for "serious tax offences" foreclosed the matter in his favour.
Relevant dealings with the australian taxation office and the respondentAs mentioned, the respondent, on 24 April 1998, received the applicant's application for re-registration as a registered tax agent (T6). T8 is an internal file note of the Australian Taxation Office's Tax Agent Unit, dated 28 April 1999. Relevant background is the fact that Mr Carbery was convicted and fined for failure to lodge his income tax returns for the 5 years to 30 June 1996 (above). This note states:
"Agent phoned this morning in relation to request for further time to lodge. Agent advised that on the weekend he was involved in an accident – he fell down an embankment in his backyard and cut the back of his head and put his teeth through his tongue – agent has suffered some concussion as a result.
Last week the agent phoned and discussed his personal problems with me – basically he and his wife ran the practice – his wife has left and gone to live in Sydney leaving the agent in a turmoil.
After discussion with the agent, I have allowed an extra week to lodge the returns. Extension granted as follows: Tax levels 2 3 8 APT granted to 7/5/99 and Tax Levels 0 1 7 given extension to 19/5/99
Carlene Chandler
Tax Agent Unit 28.4.99"Exhibit R1 is the lodgement history of income tax returns for Mr Carbery (and other associated entities). It records lodgement of his income tax returns for the four years ended 30 June 1992 to 1995, on 4 September 1996 and the return for the year ended 30 June 1996, on 17 September 1999, almost 3 years late from its due date for lodgement 31 October 1996. Exhibit A1 is what purports to be a copy of a facsimile cover sheet on Carbery & Associates Pty Ltd stationery, addressed to "The Australian Taxation Office, Attention: Mr James Mitchell", stating that it attaches the "duly completed Income Tax Returns for Mrs Amanda Carbery and Mr Paul Carbery for the years ended 1996 and 1997 and that "the originals of the returns will be forwarded unto you upon receipt of same from Mrs Carbery …". That memorandum is dated 22 April 1999. It was produced by Mr Carbery at the hearing. There is no evidence on its face that it was sent, or was any such automatic facsimile machine record produced. It strikes the Tribunal as odd that that facsimile was purported to have been sent some 6 days prior to the recorded telephone conversation (T8) when Mr Carbery was providing excuses for not having lodged income tax returns. The Tribunal is not able to make any sense of the purported facsimile or accept that it was ever sent. Mr Carbery's cause is not assisted in this respect since there is no record before the Tribunal of the Australian Taxation Office ever having received such a facsimile transmission. As noted above, the 30 June 1996 income tax return was not acknowledged as lodged with the Australian Taxation Office until 17 September 1999. Exhibit R1 also records that Mr Carbery's income tax return for the year ended 30 June 1997 was lodged on 17 September 1999. However, the returns for the years ended 30 June 1998 and 1999 had not been lodged up to the date of the hearing on 23 November 2000 despite them having been due for lodgement on 19 January 2000 (an extension of time having been granted) and 31 January 2000 respectively. It is further noted that a demand for lodgement of the 1998 return issued on 24 September 1999 and again on 29 December 1999 (Ex. R1). In the opinion of the Tribunal, this failure on the part of Mr Carbery to comply with basic requirements of the Australian Taxation Office in regard to its conditions for lodgement of the personal income tax returns of tax agents, is tantamount to a gross dereliction of a fundamental duty. This failure is exacerbated, in the opinion of the Tribunal, because it is a failure to comply by a person who, himself, is responsible for the management of his clients' income tax compliance requirements.
On 12 August 1999 the respondent wrote to Mr Carbery in connection with the application by the applicant for re-registration as a registered tax agent, (T10). The letter notes that his income tax returns for the years ended 30 June 1996, 1997 and 1998 had not then been lodged. It suggests and this circumstance may put in jeopardy the application if as a result he is convicted of a serious tax offence for failure to lodge income tax returns. A similar letter was sent on the same day to Mrs Amanda Carbery, a registered signatory to the tax agency registration of the applicant. The letters each conclude:
"You are requested to provide the Board with an explanation for your failure to lodge outstanding returns.
Your response in writing is requested within fourteen days from the date of this letter."The next recorded contact with the respondent by Mr Carbery is a record of a telephone conversation on 1 September 1999 (after the 14 day period mentioned immediately above). That internal file note reads in part:
"I asked why he had not responded to my letter of 12/8/99. He said he had not received it. I also advised that we had information from the Tax Office stating that he had been convicted in 1996 for non-lodgement of his 92-96 returns, but that he failed to declare the convictions in his re-registration application. Mr Carbery asked me to send a copy of my letter of 12/8/99 and advised he will send me a response in writing."
The next day, 2 September 1999, the respondent again wrote to Mr Carbery (T13) enclosing a copy of their letter of 12 August 1999 (T10) and pointing out that a written response was then due. That letter also raises the question of his failure to correctly answer question 9 (T6) in the application for re-registration form for the applicant. It then asks for a written explanation, within 14 days, as to why the conviction was not disclosed in the application form.
Mr Carbery wrote to the respondent, on the applicant's letterhead, on 9 September 1999 (T14). Rather than reproduce the entire letter the Tribunal distils from it the salient points addressed. Firstly, Mr Carbery claims that there is no requirement to lodge the outstanding income tax returns of the associated family trust because all of its income was distributed to the beneficiaries. The Tribunal observes in this connection that that contention indicates that Mr Carbery has no real understanding of the requirement for trustees to lodge income tax returns. The next contention made in the letter by Mr Carbery is that "individual beneficiaries", who turn out to be Mrs Carbery and himself, have incurred substantial losses from rental properties and that no tax was payable. With respect, this assertion also shows ignorance of the fundamental requirements that persons must lodge income tax returns in the prescribed form when specifically requested to do so, as was the case in point.
Mr Carbery's letter of 9 September 1999 (T14) is not short on excuses for failure to lodge income tax returns for the years of income ended 30 June 1996, 1997 and 1998, an apparent answer to the letter of 12 August 1999 (T11). Again, it is noteworthy that no mention is made of the purported facsimile of 22 April 1999 which purports to provide, by facsimile, copies of both Mr and Mrs Carbery's income tax returns for the years ended 30 June 1996 and 1997 (A1). That aside, the letter of 9 September 1999 (T14) provides no explanation, plausible or otherwise, for failure to respond truthfully to question 9 in the application form (T6 and T13). At best, it implies that the failure is attributed to illness which both he and Mrs Carbery suffered in varying degrees since 1991.
Complaints made to the respondent in relation to the applicant (and Mr Carbery)The T documents record relevantly four separate complaints lodged with the respondent. These each relate to dissatisfaction with the way in which Mr Carbery has handled the complainants' respective income tax affairs. The first is a complaint by Mrs A Harmston and made in writing to the respondent by letter dated 1 October 1999 (T15). The second is by Mr R J Moore made in his letter to the respondent dated 4 January 2000 (T24). The third is by Mr J Vinod made in his letter to the respondent dated 3 March 2000 (T33). The other is by Mr T Murray, the undated letter having been date stamped as received by the respondent on 18 April 2000 (T39). In the case of Mrs Harmston the initial complaint was subsequently withdrawn by a solicitor's letter of 17 November 1999 attaching a copy of a letter from Mrs Harmston dated 9 November 1999 (T20). It was then "re-opened" by letter of 23 November 1999 (T22).
All complaints relate, in essence, to the same thing – failure on the part of Mr Carbery to complete the relevant income tax returns. This failure to perform followed an interview with each respective client who provided all the necessary documentation and information either then or soon thereafter. The Harmston complaint includes allegations of improper dealings and blackmail on the part of Mr Carbery which, they allege, resulted in the withdrawal of the complaint.
Each complaint indicates a considerable degree of frustration being suffered by the respective clients. That frustration arose from unfulfilled promises to complete and lodge the respective income tax returns in a timely fashion and from repeated efforts of clients to contact Mr Carbery without success. In the Harmston case, Mrs Harmston alleges that Mr Carbery refused to return her papers and documents pertaining to their 1998-99 returns, even thought both she and her husband went to his office at an appointed time to collect the then promised prepared income tax returns. The Harmstons eventually put the matter into the hands of their solicitor. By then it seems that Mr Carbery had held the relevant information for three months since July 1999. The documents were subsequently returned. The complaint, withdrawn subsequently as mentioned, was then "re-opened" (T22). That letter to the respondent refers to a private verbal agreement which resulted in a dispute. It allegedly involved Mr Carbery transferring an unregistered Nissan Patrol vehicle to the Harmstons in exchange for a four-car car port which they had delivered to Mr Carbery's home (also his then office). It was alleged that the dispute arose because Mr Carbery did not honour his side of the agreement and it was not until the Harmston's lawyer intervened that they received satisfaction. They allege that Mr Carbery insisted on withdrawing the complaint to the respondent as part of the settlement which followed.
Mr Carbery gave evidence about the arrangement with the Harmstons. He did not challenge the substance of the arrangement. He agreed that it involved the swap, but said that it was agreed that the car-port was worth just a few hundred dollars and that the Nissan Patrol was valued at $4,500. He said the arrangement was that the difference in value would be paid over to him by the Harmstons when they received their anticipated income tax refunds for the 1998-99 year. The Tribunal of course, has no way of determining what was in fact the arrangement and what in fact transpired. It can only observe that the arrangement, regardless of its factual matrix, is a private one and not something with which the respondent or this Tribunal would ordinarily be interested. That of course, would be different if, in relation to the dealing, charges had been laid and a conviction recorded, which is simply not the case. In the Tribunal's view it would be manifestly unfair for it to attribute any weight to this evidence in the context of whether Mr Carbery had acted honestly. The only relevance is the fact of a failure to perform in a timely fashion the preparation of the income tax return for which the Harmstons had engaged him (they thought) as their tax agent in relation to the income tax return for the 1998-99 year.
As mentioned, the complaint by Mr Moore relates also to a failure on the part of Mr Carbery to perform as tax agent. Mr Moore had provided Mr Carbery with his relevant group certificates in August [1999] but heard nothing from him. He made various attempts to contact him over a period of months but without success and finally lodged his complaint in January 2000 having received no satisfaction.
Mr Vinod's complaint (T33) is similar although he had been a client of the applicant since 1994. In it he states that he provided his relevant 1998-99 income tax return documentation to Mr Carbery in September 1999. He says that he was reassured by Mr Carbery at the time that he could handle the task. The reassurances, he said, were given following an expression of concern about Mr Carbery's then health. Mr Vinod said that he made "numerous phone calls" to Mr Carbery which were each met with a promise to complete the return with alacrity. His last contact of this nature was in November 1999. He said that in December 1999 he was unable to contact Mr Carbery by telephone or facsimile. He compiled his own return in January 2000 from copies of the documents given to Mr Carbery and in respect of which he alleges, in November 1999 he had requested be returned to him. Mr Vinod said that he subsequently discovered, as a result of an audit of his previously lodged 1997-98 income tax return, that he owed the Australian Taxation Office ("ATO") "a large sum of money" arising from an amended assessment. He knew nothing of this and was not advised that the matter had been dealt with by the ATO through Mr Carbery as his agent. The amended assessment apparently followed a failure by Mr Carbery to respond to a letter sent by the ATO inquiring about the relevant income tax return. Mr Vinod said that he has had to retain another accountant to sort this matter out.
Mr Murray's complaint (T39) states that in August [1999] he handed over all his relevant income tax documentation to "Rose" who attended on him when he went to the advertised address, in the local paper, of the applicant to arrange for the preparation of his [1998-99] income tax return. He eventually spoke to Mr Carbery in December 1999, inquiring as to why he had heard nothing about his income tax return. Despite attempts since, he states that he still has not been able to contact him (the letter was undated but received by the respondent on 18 April 2000). His concern is that no income tax return has been completed and that Mr Carbery "has every last bit of my tax information as well as a contact address and phone number".
With the exception of Mr Vinod's complaint, the respondent wrote to the applicant on each occasion enclosing a copy of the respective complaint, requesting a written explanation within 14 days. The Harmston complaint was raised in the respondent's letter of 6 October 1999 (T16) and when no reply was received, a reminder was sent on 27 October 1999 (T19). As mentioned, the Harmstons ostensibly withdrew that complaint on 17 November 1999 (T20). Nevertheless, no written response had been received from Mr Carbery by then, although he had telephoned the respondent on 19 October 1999 (T18) and said that "he will try to get a response to me by tomorrow 20/10/99".
In the same vein the respondent wrote to the applicant on 12 January 2000 in relation to the complaint by Mr Moore (T27) and again on 31 July 2000 in relation to the complaint by Mr Murray. Neither letter was replied to in writing. It appears that no letter was sent by the respondent concerning Mr Vinod's complaint (T33). At the time the respondent was having trouble contacting Mr Carbery and eventually tracked him down to an address in Western Australia (T34).
On 21 February 2000 the respondent again wrote to the applicant at the Western Australian address, referring to a prior telephone conversation between Mr Carbery and an officer of the respondent. That letter pointed out the need for the applicant to advise the responded of its current contact address, telephone number, when and if Mr Carbery intended to return to practice in Queensland and other relevant information relating to the conduct of the tax agency. This letter requested a written reply by 8 March 2000.
On 7 March 2000 the respondent wrote to the applicant at the Western Australian address. This letter referred in particular to the complaints by the Harmstons and Mr Moore and in general to "a number of telephone calls from other clients advising that they have been unable to contact you and that you have failed to lodge their income tax returns". The letter also referred to the applicant's failure to notify it of a current address and contact details; the failure to notify that Mrs Carbery was no longer a director; the failure to disclose information about the convictions referred to above; and the failure to lodge outstanding income tax returns. The letter concludes by requesting the applicant to "show cause" in writing within 14 days, why the respondent should not suspend or cancel the tax agency registration. It states that failure to do so "may lead to the matters being determined by the Board without further reference to you".
Mr Carbery received that letter. He telephoned the respondent on 9 March 2000 to inform it that he was receiving medical treatment. He was told that a reply in writing was required. The respondent's officer notes that "Mr Carbery appeared to be talking in riddles at times and not making a great deal of sense". The conversation concluded with Mr Carbery stating that he would respond to the letter (T36). However, on 13 March 2000 Mr Carbery again telephoned the respondent (same officer) and in the course of the conversation asked for a 7 day extension of time in which to respond to the letter of 7 March 2000. That request was granted (T37). That was followed up in writing by the respondent in its letter of 13 March 2000 which stipulated that a written response was required by 27 March 2000. An internal note by an officer of the respondent records that no written reply to any of the requests had been received by 27 April 2000 (T40).
On 19 May 2000 the respondent minuted an instruction for its Secretary "to advise Mr Carbery that he had one more week to respond to the 'show cause' notice [the letter of 7 March 2000], but that after that time the Board would determine the matter with or without his response" (T41). The Tribunal simply observes that having regard to the history of this matter, the respondent was being exceedingly accommodating in this respect.
The saga goes on because on 14 June 2000, and predicably by now, Mr Carbery again telephones the respondent expressing "concern that his registration may be cancelled". He was again advised to provide an explanation [for his many failures to respond in writing when asked] to the respondent (T42). Nothing came of that until again, on 30 June 2000 Mr Carbery telephoned the respondent (T43). In this conversation he said that "he was compiling a report to submit to the Board", which he would forward within a week. No response was ever sent.
At the hearing Mr Carbery produced a word processed prepared letter bearing his Western Australian address, addressed to the respondent and dated 4 June 2000 (Ex. A2). He said it was a draft. It purports to address the respondent's request of 7 March 2000. In the opinion of the Tribunal, it does not do that in any convincing or thorough way. In the Tribunal's opinion, it should be given no weight (even if it aided the applicant, which is not apparent). The letter was never sent and only produced at the hearing. It appears to be complete and not just a draft unless it is a draft because of the many spelling and grammatical errors it contains. However, when asked by Mr Burrows for the respondent why it was never sent, Mr Carbery said something about losing it from his computer. But he was able to produce it at the hearing he said, because he had since retrieved it.
Finally, on 24 August 2000 the respondent sent, by registered mail, the letter advising of its decision to refuse re-registration of the applicant's tax agency (T47). That letter prompted these proceedings.
Mr Carbery's state of healthIn his numerous telephone conversations with the respondent and in his only letter to the respondent on 9 September 1999 (T14), Mr Carbery continually referred to both his and his spouse's ill health as a causal factor of his many failures as documented above. He also attributes the unexpected departure of his spouse as a significant factor. He raised both issues at the hearing. He was given time to file additional medical evidence and to make written submissions. He did the former (Ex. A21) but not the latter. In addition, the respondent filed a report from Dr Chris Carter (Ex. R2). These are now discussed in the context of Mr Carbery's fitness to "prepare income tax returns and transact business on behalf of taxpayers in income tax matters" [s251BC(1) of the Act].
Exhibit A21 is a report by Ms Julie Meager, Clinical Psychologist with Health Services Australia. It is dated 7 November 2000. It refers to previous treatment in Queensland by Dr Lotts who appears to be a psychiatrist and to current treatment by Dr Chris Carter, also a psychiatrist. The report provides a brief history and family background. It refers to his spouse's psychological difficulties and that these had an affect on his performance as a tax agent. The self-assessment tests indicate that Mr Carbery is suffering "severe anxiety" and is in the "severely depressed range". Ms Meager reported that her differential diagnosis indicated "major depressive disorder or adjustment disorder in the context of the loss of significant relationship". However, "Mr Carbery reported very few symptoms consistent with Bipolar Affective Disorder" Ms Meager's opinion is that the condition is not chronic and is amenable to treatment. She certifies that Mr Carbery is "currently not fit to work in the open competitive job market [as] he is suffering symptoms of depression and anxiety that affect his ability to work through difficulty focussing, maintaining concentration, and making decisions". In the Tribunal's opinion that description of Mr Carbery serves, in part, to explain his performance at the Tribunal. Also it seems to be supported by the evidence that over the relevant time period he simply neglected to respond in writing to the respondent's many requests for information critical to the ongoing registration since refused. Ms Meager opines that Mr Carbery may be fit for part-time employment at 8 hours per week and that he should be reviewed in two years time.
Dr Carter's report is dated 18 December 2000 (Ex. R2). Mr Carbery was referred to Dr Carter by Dr Warren Saint, who had been his general practitioner since 8 December 1999 and who had diagnosed severe depression for which he prescribed medication (Ex. A7). Dr Carter had been seeing Mr Carbery since March 2000 (Ex. A6). There are further medical reports dated 5 September 2000 (Ex. A6), 19 September 2000 (Ex. A11) and 25 September 2000. In the latter, Dr Carter diagnosed bipolar mood disorder (Ex. A8) which, he opined, would extend beyond 2 years. In exhibit A8 he expressed the view that Mr Carbery was unfit for work until 28 December 2000. Dr Carter's more recent report (Ex. R2) relates a history reflecting on the depression, despondency and hopelessness which Mr Carbery suffered as a consequence of his spouse leaving him after 20 years. Dr Carter's analysis is that Mr Carbery is "suffering from Adjustment Disorder with Disturbance of Mood and Conduct. In particular, he has suffered from depression and anxiety and has been unable to work". He states that the features of this condition are despondency, hopelessness and pessimism about the future. He attributes Mr Carbery's failures (documented above) in relation to his tax agency business and re-registration application go to his marriage break-up. He opines that Mr Carbery "is fit to resume part-time work as a tax agent now and he should be able to build it up to full-time in six months". He further opines that "his condition is temporary" and "he should make a full recovery over the next six months". Dr Carter says that Mr Carbery will require further counselling and should continue his anti-depressant medication for the next six months. He concludes with this observation:
"Mr Carbery is capable and conscientious. After such a severe personal setback it is hard to know how he will cope until he is allowed to get back to work."
It should be borne in mind that Dr Carter was making those observations in the context that:
"… [Mr Carbery's] Tax Agent's Licence was withdrawn because he was 'not a fit and proper person' to prepare tax returns. He took this very personally, feeling he was 'being kicked when he was down'. I agree with his assessment."
With respect, it is not entirely clear to the Tribunal with what assessment it is that Dr Carter is agreeing. His remarks recorded in the previous paragraph would suggest that Dr Carter understood that despite Mr Carbery's apparent capabilities and conscientiousness he has been deprived of his right to work. If that is the basis for Dr Carter's assessment then, with respect, it is founded on incorrect premises. If Mr Carbery is capable and conscientious as Dr Carter states, then, in the Tribunal's view, he should be able to obtain suitable employment in his chosen field of endeavour. With no disrespect intended, in the Tribunal's opinion, the evidence before it does not support a conclusion that Mr Carbery is now a fit and proper person in terms of s251BC of the Act. And further, in this respect, the Tribunal notes that many of the documented failings referred to above occurred before Mr Carbery's spouse left him unexpectedly in January 2000. These findings need to be considered in the context of the present application by the applicant for re-registration of its tax agency and that Mr Carbery is the applicant's nominee in that respect.
Submissions and discussion
Apart from a letter addressed to the representative for the respondent by Mr Carbery, dated 21 November 2000 (prior to the hearing), a copy of which was filed with the Tribunal, no written submissions were made by Mr Carbery. That letter purports to be the applicant's statement of facts and contentions. To the extent that it is relevant, it has been taken into consideration in these reasons. In it Mr Carbery repeats his assertion made at the hearing that his failure to disclose the convictions referred to above "bears no relationship to the matter at hand" and that the convictions were not for "a serious tax offence". In relation to the failure to lodge income tax returns as and when due or demanded, Mr Carbery refers to "personal matters namely marital separation" and the purported facsimile of 22 April1999 (Ex. A1) as, in his submission, meeting those assertions. Later, he maintains that the outstanding returns for 1995-96 and 1996-97 for Mrs Carbery and himself were lodged on 22 April1999 [by facsimile] but makes no reference to the fact that even if that was the case then they were well overdue for lodgement in any event. The remainder of the so called "facts and contentions" fails clearly to state facts and makes assertions in defence which are simply not supported by any of the evidence before the Tribunal.
The Tribunal acknowledges the thoroughness of the respondent's written submissions handed up at the hearing. The Tribunal adopts most of those submissions which form the principal basis of these reasons.
Disqualification for conviction of a "serious taxation offence"For the sake of completeness there is considerable repetitiveness under this head as contained in paragraph 18 above. The Tribunal agrees with the respondent's submissions in this regard. Section 251BC of the Act deals with whether a person is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters. The provision does not limit the general circumstances in which it may be decided that a person is not fit and proper in that context. However, if one of the factors set out in s251BC(1) is present, then the person cannot be such a fit and proper person. In particular, paragraph s251(1)(e) disqualifies a person who has been convicted of a serious taxation offence during the previous 5 years (that is, prior to the application for re-registration). The provision is qualified by s251(3) in that if the respondent is satisfied that, because of special circumstances the conviction of the person should be disregarded, then the Board may, in making the decision to re-register, disregard the conviction providing the person is not under sentence of imprisonment for a serious taxation offence.
Section 251A of the Act defines a "serious taxation offence". Relevantly, it is "a taxation offence within the meaning of Part III of the Taxation Administration Act 1953 ("the Administration Act") and punishable on conviction by either or both of a fine exceeding $2,000 or imprisonment. Section 8A of the Administration Act falls within that Part. It defines "taxation offence" to mean, amongst other things, an offence against a taxation law. Section 8C of the Administration Act provides that it is an offence for a person to refuse or fail, when and as required under or pursuant to a taxation law to, among other things, to furnish a return or information to the Commissioner [of Taxation]. Section 8E of the Administration Act sets out the relevant penalties for conviction of an offence under s8C. It states:
8E Penalties for failure to comply with requirements under taxation law
(1) Subject to subsections (2) and (3), an offence against section 8C or subsection 8D (1) or (2) is punishable on conviction by a fine not exceeding $2,000.
(2) Subject to subsection (3), where:
(a) a person is convicted of an offence against section 8C or subsection 8D (1) or (2); and
(b) the court before which the person is convicted is satisfied that the person has previously been convicted of a relevant offence;
the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding $4,000.(3) Where:
(a) a person is convicted of an offence against section 8C or subsection 8D (1) or (2);
(b) in a case where the person is a natural person — the Commissioner has elected under subsection 8F (1) to treat the offence otherwise than as a prescribed taxation offence; and
(c) the court before which the person is convicted is satisfied that the person has previously been convicted of 2 or more relevant offences;
the penalty that the court may impose in respect of the first-mentioned offence is a fine not exceeding $5,000 or imprisonment for a period not exceeding 12 months, or both.Therefore the penalty for an offence where that the person has previously been convicted of a relevant offence, under subsection 8E(2), is a fine not exceeding $4,000. The applicant was convicted of failing to lodge income tax returns for each of the years ended 30 June 1992 to 1996 inclusively (T7). Section 8C makes it an offence to fail to furnish a return. Therefore, failure to furnish more than one return constitutes more than one offence. It is not relevant in the determination of whether a conviction comes within the definition of a serious taxation offence to consider what fine was actually imposed in any particular case. Whether the offence constitutes a serious taxation offence is determined by the extent of the fine that can be imposed under the legislation. The definition of serious taxation offence in s251A of the Act refers to "an offence that is punishable …". The respondent submits that that phrase is unambiguous. The Tribunal agrees. Accordingly, by having been prosecuted and fined for failing to lodge as an when required more than one year of income's income tax returns Mr Carbery has committed a "serious taxation offence". There remains therefore the question of whether there were special circumstances which would warrant the convictions to be disregarded in considering whether Mr Carbery is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, in terms of s251BC. In Re: Dahia v Tax Agents' Board of Victoria (1997) 97 ATC 2125, Deputy President McDonald observed, in this context:
"The exercise of a discretion to disqualify a person from being a tax agent is not to be used in punishment of that person (see comments of O'Connor J in Re Houvardes and Tax Agents' Board of New South Wales 91 ATC 2032 at 2039). The purpose of the power to disqualify tax agents is to protect the public. Each case needs to be considered having regard to its own particular circumstances. Whilst no two cases will be the same, other decisions on this point are instructive. In Re Houvardes (supra) there were two principal issues which the Tribunal considered, namely the commission by the applicant of 'serious tax offences', and whether or not the agent had neglected the business of his principal to the detriment of a number of clients. The latter allegations concerned a number of complaints lodged on behalf of clients of the tax agent's business. In that case the Tribunal found that the applicant had committed a number of serious tax offences, had made false statements to the Board in respect of those matters on more than one occasion and he had seriously neglected his clients' interests."
whether special circumstances and Other relevant factors
The evidence shows that Mr Carbery did neglect some of the applicant's clients' taxation affairs to their detriment. The evidence is that Mr Carbery failed to lodge his own income tax returns as and when due. It also shows that he closed down the applicant's office when the family home was sold and Mr Carbery came to Western Australia. He neglected to inform his clients generally of this change or where they might contact him in future. Similarly, he failed to advise the respondent of this change and from then on the applicant had no business address for service of notices and the like. All these facts raise serious doubts about Mr Carbery's fitness (or competency) to be acting on behalf of clients as their tax agent, either directly or as a principal nominee of a registered tax agent.
Mr Carbery made a false representation in writing to the respondent in his answer to question 9 on the application for re-registration form (T6). He made no other false statements in writing because he only once wrote (T14) in response to many requests for written explanations. However, the evidence establishes that he did not respond to many reasonable demands made by the respondent. Also, in his evidence at the hearing Mr Carbery asserted that a critical facsimile was sent on 22 April 1999 (Ex. A1) when the evidence strongly suggests otherwise. These factors alone, in the opinion of the Tribunal, raise serious doubts about Mr Carbery's honesty (see: Re: Su and Tax Agents' Board supra at 4290; Re: Fitzgibbon and Tax Agents' Board of Queensland 93 ATC 2053, Senior Member Beddoe at 2058).
The evidence is that Mr Carbery, at least since his spouse left him in January 2000, has been under considerable stress such that he was unable to attend to the business affairs of the applicant. In the Tribunal's opinion Mr Carbery's medical condition, at least since January 2000, has rendered him unfit to be responsible for a large group, that is, 200 to 250, of corporate and individual taxation clients who looked to the applicant (and therefore Mr Carbery) to transact business on their behalf. However, as Mr Carbery's failings in relation to attending to his own income tax affairs and falsely answering a critical question (T6) pre-date his stated onset of his psychological difficulties, those difficulties alone are not the reason for his failings. In the opinion of the Tribunal, even putting aside evidence pointing to possible dishonesty, the evidence is that Mr Carbery's dealings with the respondent and his dealings with clients of the applicant provide sufficient grounds for concluding that he is not a fit and proper person as contemplated by s251BC. There is no evidence that Mr Carbery's serious taxation offence convictions resulted from special circumstances nor, in the opinion of the Tribunal, is there any evidence of any special circumstances extraneous or directly related to the convictions. The evidence is that the convictions arose as a result of Mr Carbery's neglect at a time when there was nothing unusual, extraordinary, peculiar or special occurring in the applicant's tax agency business or in Mr Carbery's life. In reaching this conclusion the Tribunal acknowledges that it is distinctly possible that at about the time of conviction, in August 1996, Mr Carbery's spouse may have been experiencing ill health and he too may have had periods of illness. But there is no evidence before the Tribunal of any chronic illnesses of either at that time, which may have been mitigating circumstances.
In the Tribunal's opinion and based on all the evidence before it (referred to above), it is not in the public interest to allow Mr Carbery to hold out that he is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters. In the Tribunal's opinion the preparation of income tax returns across a wide range of businesses, professions, occupations and income sources (i.e. investments), is not to be taken lightly. It requires diligence, current knowledge of the relevant legal framework and competence in dealing with both client and the Australian Taxation Office, not to mention honesty (see: Re: Su and the Tax Agents Board, South Australia 82 ATC 4284, Davies J at 4286 and Stasos v Tax Agents' Board of NSW 90 ATC 4950, Hill J at 4959). This is especially so in the current "self-assessment" regime where penalties for failure to disclose accurate and timely information can be levied on the taxpayer client, who relies on his/her/its tax agent to guide, advise and make proper and timely disclosures. Unless a person is judged competent in all these attributes then, in the Tribunal's opinion, that person would not meet the "fit and proper" tests of s251BC of the Act. It is in that context that the Tribunal makes its finding above.
decisionFor the above reasons and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member
Signed: ................…(sgd W.Treasure)..............
AssociateDate/s of Hearing 23 November 2000
Date of Decision 13 February 2001
Counsel for the Applicant Mr Paul Carbery
Solicitor for the Applicant
Counsel for the Respondent Mr Tim Burrows
Solicitor for the Respondent
16
0
0