Colin and Tax Practitioners Board - [2024] ARTA 43

Colin and Tax Practitioners Board [2024] ARTA 43 (13 November 2024)
Applicant/s:  Philippe Colin
Respondent:  Tax Practitioners Board
Tribunal Number:                2024/1283

Tribunal:General Member Darian-Smith
Place:Sydney
Date:13 November 2024
Decision:The Tribunal affirms the decision under review.
.......................[SGD].................................................
General Member Darian-Smith

Catchwords
TAX AGENTS – termination of registration – prohibition on applying for registration for four years – breaches of Code of Professional Conduct – whether “fit and proper person” – factors determining whether length of ban appropriate – protective purpose of sanctions – lack of insight into seriousness of shortcomings – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss. 25, 29, 43
Administrative Review Tribunal Act 2024 (Cth) ss. 12, 105
Income Tax Assessment Act 1997 (Cth) s.995-1
Tax Agent Services Act 1953 (Cth) ss. 2-5, 2-10, 20-5, 30-5, 30-10, 30-15, 30-30, 30-35, 40-5, 40-15,40-25, 50-5, 50-10, 60-95, 60-125, 70-10, 90-1
Cases
Colin and Tax Practitioners Board [2024] AATA 2151
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Smith and Commissioner of Taxation (Taxation) [2023] AATA 3090
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Stasos v Tax Agents’ Board of New South Wales (1990) 21 ATR 974
Su v Tax Agents’ Board of South Australia (1982) 61 FLR 1
Jack and Tax Agents’ Board of New South Wales [1997] AATA 678
Kishore and Tax Practitioners Board [2017] AATA 271
Le’Sam Accounting Pty Ltd and Tax Practitioners Board [2020] AATA 890
Iseppi and Tax Practitioners Board (Taxation) [2020] AATA 1523
Hill and Tax Practitioners Board (Taxation) [2020] AATA 678
Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450
Middlebrook and Tax Practitioners Board [2020] AATA 3698
Ridden and Tax Practitioners Board [2020] AATA 422
Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80.
Li and Tax Practitioners Board [2014] AATA 299

Statement of Reasons

BACKGROUND AND DECISION UNDER REVIEW

In its decision dated 25 January 2024, the Tax Practitioners Board (The Respondent or Respondent) cancelled the Applicant’s registration as a taxation agent[1] and imposed a ban of four years duration from the date of termination of his taxation agent registration[2] (collectively the Reviewable Decision).
[1] Under s.40-5(1)(b) Tax Agent Services Act 2009 (Cth) (TASA).
[2] Under s.40-25(1) TASA.
The Reviewable Decision was made by the Respondent’s Board Conduct Committee at its meeting on 25 January 2024.[3] The Reviewable Decision was communicated to the Applicant in the Respondent’s letter to him dated 16 February 2024.[4]
[3] Minutes of Board Conduct Committee Meeting 25 January 2024 (CB 1725-1736).
[4] Letter from Respondent to Applicant dated 16 February 2024 (CB 1737-1748).
The critical elements of the Reviewable Decision are stated in the Respondent’s letter dated 16 February 2024, as follows:
“On 25 January 2024, the Board decided that you, Phillipe Colin, failed to comply with subsections 30-10(1), 30-10(2), 30-10(7), 30-10(11) and 30-10(14) of the Code of Professional Conduct (the Code) in the TASA.
The Board also found that you, Philippe Colin,…

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 Colin 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: [2024] ARTA 43
Decision Date: 13 November 2024

CaseChat Overview and Summary

In the matter of Colin v Tax Practitioners Board, the Court considered the termination of Colin's registration as a tax agent and the imposition of a four-year prohibition on Colin applying for re-registration. The Tax Practitioners Board (TPB) had determined that Colin had breached the Code of Professional Conduct and was no longer a fit and proper person to hold a tax agent registration. The central issues before the Court were whether the TPB had the authority to extend the four-year ban beyond the maximum allowable period of five years, and if the duration of the ban was appropriate given the circumstances.

The Court held that while Colin's additional conduct, which came to light after the initial decision, reinforced the need for a four-year ban, it was not open to the Tribunal to increase the ban beyond four years. The Court emphasised the protective purpose of the sanctions and noted Colin's lack of insight into the seriousness of his shortcomings. The Court concluded that the TPB's decision to uphold the four-year ban was justified and in line with the statutory framework governing the registration of tax agents.

The Court further found that the TPB had correctly applied the Code of Professional Conduct and had appropriately considered the factors relevant to determining whether Colin was a fit and proper person to hold a tax agent registration. The breaches identified by the TPB, including acting dishonestly and without integrity, and making false statements to the ATO, supported the TPB's decision. The Court affirmed the TPB's decision, finding no basis to interfere with the Tribunal's conclusion.

In light of the findings, the Court ordered that the decision of the TPB be affirmed, and the four-year prohibition on Colin applying for re-registration as a tax agent was upheld. The Court's decision underscored the importance of maintaining professional standards and ensuring that tax agents act with integrity and honesty in their dealings with clients and regulatory authorities.

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

The Respondent submitted that, in the light of the Applicant’s additional conduct which occurred or became known to the Respondent after the Reviewable Decision, it was open to the Tribunal to impose a ban on the Applicant applying for re-registration for a greater period than four years[100] (the maximum period being five years). I am of the view that a ban of four years duration should not be increased, but the additional conduct serves to re-enforce the need for a four-year ban.[100] Respondent’s submissions [103].DECISION The Reviewable Decision is affirmed.

Ratio Decidendi

Legal Principle Established

During the hearing, the Tribunal took the Applicant to paragraphs [206]-[212] of the Respondents ASFIC inclusive to make it clear to the Applicant that the case which he had to meet was wider than he was stating it in contention (1) in paragraph 20 above. The Applicant was invited to take, and given the opportunity to, address the Tribunal on any of the Respondent’s contentions which he had not dealt with in his SFIC. At the conclusion of the hearing, the Tribunal made a direction which provided the parties with an opportunity to file any further written closing submissions, should they choose to..THE RESPONDENT’S SUBMISSIONS AND CONSIDERATIONS OF THE PARTIES’ SUBMISSIONS The Respondent’s contentions are focussed on: (a)the breaches by the Applicant of the Code, provisions s. 30-10 (1), (2), (7), (11) and (14) it identified during its investigation and subsequently; and (b)whether the Applicant has ceased to meet the requirement for registration as a tax practitioner, that he is “a fit and proper person” under s. 20-5(1)(a) of the TASA. The Tribunal notes that the Respondent’s Explanatory Paper “TPB(EP) 01/2010 Code of Professional Conduct”[24] (EP1) is a publicly available guide issued by the Respondent to provide guidance to registered tax practitioners and others as to the Respondent’s approach to the application of the Code. It follows that a registered tax practitioner who refers to EP1 would not be left in the dark as to what the Code is and how the Respondent expects it to operate.[24] ST10, CB 1749-1830. As has been previously noted, very little of the evidence in support of the Respondent’s contentions has been contested by the Applicant. That supporting evidence has been admitted and is accepted by the Tribunal on the basis that it has been expressly conceded by the Applicant or on the basis that the Applicant has chosen not to contest it. The Applicant is said to have breached provision (1) of the Code by failing to “act honestly and with integrity”. The specific breaches relied upon by the Respondent are set out in the paragraphs [27] to [34] below. The Applicant amended and lodged the 2021 ITR for Taxpayer 1, claiming certain deductions, without the knowledge or authorisation of Taxpayer 1.[25] At the time of making the amendment, Taxpayer 1 had not been a client of the Applicant for four years.[26] The Applicant subsequently made false statements to the ATO and to the Respondent in relation to the amendments.[27][25] Respondents ASFIC [15]-[19], [22]-[24].[26] Respondents ASFIC [20]-[21].[27] Respondents ASFIC [25]-[29]. The Applicant changed the financial institution account details for Taxpayer 1 to a bank account under his control, again without first obtaining authority and consent from Taxpayer 1 to making that change.[28][28] Respondents ASFIC [19]. The Applicant amended and lodged the 2021 ITR for Taxpayer 3, claiming certain deductions, without the knowledge or authorisation of Taxpayer 3.[29] The Applicant subsequently made false statements to the ATO and to the Respondent in relation to the amendments.[30][29] Respondents ASFIC [44]-[50].[30] Respondents ASFIC [51]-[54].