Clifford and Tax Practitioners Board - [2023] AATA 2068

Clifford and Tax Practitioners Board [2023] AATA 2068 (14 July 2023)
Division:TAXATION AND COMMERCIAL DIVISION
File Number: 2022/7220
Re:Jennifer Clifford
APPLICANT

AndTax Practitioners Board
RESPONDENT

DECISION
Tribunal:Deputy President I Molloy
Date:14 July 2023
Place:Brisbane

1.        The decision to terminate the applicant’s registration as a tax agent is affirmed subject to the following.
2.        The termination of the applicant’s registration shall take effect one calendar month from the date of publication (and thereby notification) of this decision.
3.        The decision prohibiting the applicant from applying for registration as a tax agent is varied to eighteen months commencing on the date that this decision to terminate her registration takes effect.
...............................[SGD].............................
Deputy President I Molloy

Catchwords
TAX AGENT REGISTRATION — Tax Practitioners Board — Tax agent registration —Code of Professional Conduct— Fit and Proper Person — Decision affirmed.
Legislation
Superannuation Industry (Supervision) Act 1993 (Cth)
Tax Agent Services Act 2009 (Cth)
Cases
Dahia v Tax Agents’ Board of Victoria [1997] AATA 265
Houvardis v Tax Agents’ Board of New South Wales [1991] AATA 134
Schmuel and Tax Practitioners Board [2019] AATA 2168
Stasos v Tax Agents’ Board [1990] FCA 379
Su v Tax Agents’ Board of South Australia [1982] AATA 127
REASONS FOR DECISION
Deputy President I Molloy
14 July 2023
REASONS FOR DECISION
This is an application for review of a decision of the respondent, the Tax Practitioners Board (“the Board”), made on 21 July 2022 terminating the applicant’s tax agent registration and prohibiting her from reapplying for registration for a period of two years (“the reviewable decision”).
This followed findings by the respondent that the applicant had breached her professional obligations and was not a fit and proper person to be registered as a tax agent.
The respondent’s decision took effect on 6 September 2022. On 15 September 2022 the Tribunal granted an interim stay by consent, which was discharged on its return on 27 October 2022 when the applicant apparently failed to appear. On 29 March 2023, following a contested hearing, the Tribunal granted a stay pending the hearing and determination of this review.
The applicant disputes that she is not a fit and proper person to be registered as a tax agent. Amongst other things she says that whatever she has done incorrectly with regard to either her own or her clients’ tax matters has been corrected. She does not believe she should be deregistered at all.
The respondent seeks orders affirming the reviewable decision.
TAX AGENT SERVICES ACT
The object of the Tax Agent Services Act 2009 (Cth) (“the TAS Act” or “the Act”), as stated in s 2-5, is “to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct”. The legislation provides for registration of tax agents and BAS agents and introduces a Code of Professional Conduct.
Section 20-5(1) of the Act provides relevantly:
20‑5 Eligibility for registration as registered tax agent, BAS agent or tax (financial) adviser
Individuals

An…

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.

Keep reading for free

Create a free CaseChat account to read Clifford and Tax Practitioners Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 2068
Decision Date: 14 July 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Tax Practitioners Board to terminate the registration of a tax agent and prohibit her from reapplying for registration for two years. The Board had found that the applicant had breached her professional obligations and was not a fit and proper person to be registered. The applicant disputed these findings, arguing that any errors in her or her clients' tax matters had been rectified and that she should not be deregistered. The Board sought to have its decision affirmed.

The Tribunal was required to determine whether the applicant was a fit and proper person to be registered as a tax agent, considering the objects of the *Tax Agent Services Act 2009* (Cth) which aim to ensure tax agent services are provided in accordance with appropriate professional and ethical standards. This involved assessing whether the applicant met the eligibility criteria for registration, including being of good fame, integrity, and character, as stipulated by the Act. The Tribunal also had to consider whether the applicant's registration could be terminated under section 40-5(1) of the Act for ceasing to meet the requirements for registration.

The Tribunal's reasoning, as indicated by the provided text, would have involved an examination of the applicant's conduct against the requirements of the *Tax Agent Services Act 2009* and the Code of Professional Conduct. The Act mandates that individuals must be fit and proper persons, which includes having good fame, integrity, and character, to be eligible for registration. The Tribunal would have assessed whether the applicant's actions demonstrated a lack of these qualities, thereby justifying the Board's decision to terminate her registration. The applicant's assertion that her errors were corrected would have been weighed against the seriousness of the breaches and their impact on the integrity of the tax agent profession.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Catchwords TAX AGENT REGISTRATION — Tax Practitioners Board — Tax agent registration —Code of Professional Conduct— Fit and Proper Person — Decision affirmed.LegislationSuperannuation Industry (Supervision) Act 1993 (Cth)Tax Agent Services Act 2009 (Cth)CasesDahia v Tax Agents’ Board of Victoria [1997] AATA 265 Houvardis v Tax Agents’ Board of New South Wales [1991] AATA 134Schmuel and Tax Practitioners Board [2019] AATA 2168Stasos v Tax Agents’ Board [1990] FCA 379Su v Tax Agents’ Board of South Australia [1982] AATA 127REASONS FOR DECISIONDeputy President I Molloy14 July 2023REASONS FOR DECISION This is an application for review of a decision of the respondent, the Tax Practitioners Board (“the Board”), made on 21 July 2022 terminating the applicant’s tax agent registration and prohibiting her from reapplying for registration for a period of two years (“the reviewable decision”). This followed findings by the respondent that the applicant had breached her professional obligations and was not a fit and proper person to be registered as a tax agent. The respondent’s decision took effect on 6 September 2022. On 15 September 2022 the Tribunal granted an interim stay by consent, which was discharged on its return on 27 October 2022 when the applicant apparently failed to appear. On 29 March 2023, following a contested hearing, the Tribunal granted a stay pending the hearing and determination of this review. The applicant disputes that she is not a fit and proper person to be registered as a tax agent. Amongst other things she says that whatever she has done incorrectly with regard to either her own or her clients’ tax matters has been corrected. She does not believe she should be deregistered at all. The respondent seeks orders affirming the reviewable decision.TAX AGENT SERVICES ACT The object of the Tax Agent Services Act 2009 (Cth) (“the TAS Act” or “the Act”), as stated in s 2-5, is “to ensure that tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct”. The legislation provides for registration of tax agents and BAS agents and introduces a Code of Professional Conduct. Section 20-5(1) of the Act provides relevantly:20‑5 Eligibility for registration as registered tax agent, BAS agent or tax (financial) adviserIndividualsAn individual, aged 18 years or more, is eligible for registration as a * registered tax agent, BAS agent or tax (financial) adviser if the Board is satisfied that (a)the individual is a fit and proper person; … Section 20-15 of the Act sets out the criteria to satisfy the requirement that an individual is a fit and proper person, including whether the individual is of “good fame, integrity and character”. Section 40-5(1) of the Act provides that the respondent may terminate the registration of a tax agent if, among other things, the tax agent ceases to meet one of the tax agent requirements set out in sub-section 20-5(1).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.