Delis and Tax Practitioners Board [2015] AATA 820 (23 October 2015)
Division
Taxation and Commercial Division
File Number(s)
2014/5488
2014/5489
Re
Peter Delis
Delis Enterprises Pty Ltd
APPLICANTS
And
Tax Practitioners Board
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 23 October 2015 Place Melbourne The Tribunal decides to affirm the decisions of the Tax Practitioners Board dated 25 September 2014 to reject the application of each of the applicants for renewal of registration as a tax agent.
......[sgd] Egon Fice.....................................................
Egon Fice, Senior Member
Catchwords
TAX AGENTS – Administration of federal tax legislation – Tax agents – Renewal of registration – Registration and cancellation – Fit and proper person – Good fame, integrity and character – Compliance with taxation laws – Failure to remit compulsory superannuation payments to employees – decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 41, 43
Corporations Act 2001 (Cth) s 459E
Income Tax Assessment Act 1997 (Cth) s 995-1
Tax Agent Services Act 2009 (Cth) ss 20-5, 20-15 – 20-25, 20-50, 20-25, 30-10 – 30-30, 60-15, 70-10
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Carbery & Associates Pty Ltd and Tax Agent’s Board of Queensland [2001] AATA 107 (13 February 2001)
Hughes and Vale Proprietary Limited v New South Wales (1955) 93 CLR 127
Stasos v Tax Agents’ Board (1990) 21 ALD 437
Secondary Materials
Explanatory Paper (TPB (EP) 02/2010)
REASONS FOR DECISION
Egon Fice, Senior Member
23 October 2015
The Tax Practitioners Board (TPB) is a body established under the Tax Agent Services Act 2009 (TASA) pursuant to Subdivision 60-A. Amongst its functions is the power to investigate applications for registration; and to impose sanctions for non-compliance with the Code of Professional Conduct (s. 60-15). Prior to its commencement, essentially on 26 March 2009, registration of tax agents was made pursuant to Part VIIA of the Income Tax Assessment Act 1936 (ITAA 36).
Delis Enterprises Pty Ltd (Delis Enterprises) was first registered as a tax agent on 1 August 1993, that registration being pursuant to ITAA 36. Mr Peter Delis has, at all material times, been the sole director of Delis Enterprises. He was registered as a Nominee of Delis Enterprises for the purposes of ITAA 36 on 1 August 1993. Following the commencement of TASA, Mr Delis and Delis Enterprises were registered tax agents under that Act. Mr Delis is the sole nominated supervising tax agent for Delis Enterprises. Furthermore, on 1 March 2010 he was registered as an individual tax agent. Delis Enterprises trades in its capacity as trustee of the Delis Unit Trust (the Unit Trust).
Mr Delis and Delis Enterprises lodged an application with the TPB on 12 July 2014 seeking renewal of registration as tax agents. In letters dated 25 September 2014, the TPB notified Mr Delis and Delis Enterprises that their respective applications for renewal of registration as a tax agent were rejected. The reason given by the TPB was that Mr Delis was not a fit and proper person and therefore…
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- Case
- [2015] AATA 820
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Tribunal was whether Mr Delis was a fit and proper person to be registered as a tax agent. This determination required a comprehensive assessment of Mr Delis's conduct and the operations of the entities he controlled, specifically Delis Enterprises and Pinia Holdings. The Tribunal had to consider whether Mr Delis's failure to remit compulsory superannuation payments to employees and his general non-compliance with taxation laws reflected poorly on his integrity and character, thereby disqualifying him from registration.
In reaching its decision, the Tribunal found that Mr Delis's conduct revealed a pattern of behaviour that was manipulative and self-serving. Despite being warned by the TPB about the potential consequences of his non-compliance, Mr Delis did not take adequate steps to address his outstanding tax liabilities until after his applications for renewal of registration were rejected. This behaviour indicated a lack of the good fame, integrity, and character required for registration under the TASA. Consequently, the Tribunal concluded that Mr Delis was not a fit and proper person to be registered as a tax agent, and by extension, Delis Enterprises and Pinia Holdings were also ineligible for registration due to Mr Delis's role as their sole director.
The Tribunal affirmed the TPB's decisions to reject the renewal of registration applications for Mr Delis and his entities. This decision underscores the importance of compliance with taxation laws and the high standards expected of individuals and entities seeking to provide tax agent services in Australia.
Orders
Orders of the court
The Tribunal decides to affirm the decisions of the Tax Practitioners Board dated 25 September 2014 to reject the application of each of the applicants for renewal of registration as a tax agent.
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
Ratio Decidendi
Legal Principle Established
The only issue which I am required to determine is whether Mr Delis is a fit and proper person and therefore eligible for registration as a registered tax agent. In making that determination, I must look at the question in the context of the operations of Delis Enterprises as well as Mr Delis’ personal income tax position. That is because Delis Enterprises traded under the name Peter Delis and Co and, at the relevant time, Mr Delis was responsible for that operation as sole director. I should also consider the fit and proper person issue in light of the operations of Pinia Holdings Pty Ltd (Pinia Holdings), in its capacity as the trustee of the Pinia Investment Trust. Mr Delis is also its sole director and it had substantial unpaid tax debts owing to the ATO.REGISTRATION AND RENEWAL OF REGISTRATION OF TAX AGENTS The relevant eligibility criteria for registration as an individual tax agent are set out in s. 20-5 (1) of TASA which provides:Individuals(1)An 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; and… In the case of a corporation, the relevant eligibility criteria are set out in s. 20-5 (3) which provides:Companies(3) A company is eligible for registration as a*registered tax agent, BAS agent or tax (financial) adviser if the Board is satisfied that:(a)each director of the company is a fit and proper person; and… The TASA also sets out matters which must be considered when determining whether an individual is a fit and proper person. These are found in s. 20-15 which provides:In deciding whether it is satisfied that an individual is a fit and proper person, the Board must have regard to:(a)whether the individual is of good fame, integrity and character; and(b)without limiting paragraph (a):(i) whether an event described in section 20-45 has occurred during the previous 5 years; and(ii) whether the individual had the status of an undischarged bankrupt at any time during the previous 5 years; and(iii) whether the individual served a term of imprisonment, in whole or in part, at any time during the previous 5 years. The grant of an application for registration is made by the TPB. An application for registration includes an application for renewal of registration (s. 20-20). Relevantly, s. 20-25 of TASA provides:Grant of application for registration(1)If you have applied to the Board for a type of registration, the Board must grant your application if you are eligible for registration of that type. Otherwise, the Board must reject your application. If the Board considers it appropriate, it may impose conditions on an applicant’s registration (s. 20-25 (5)). The TPB has issued an Explanatory Paper (TPB (EP) 02/2010) dealing with the concept of a fit and proper person. Although the Explanatory Paper is intended for information only, it provides a detailed explanation of the Board’s interpretation of the fitness and propriety requirements in Subdivision 20-A of the TASA dealing with eligibility for registration. It does not create additional legal obligations beyond those contained in the TASA. As is explained in the introduction to the Explanatory Paper, a finding on fitness and propriety will depend on a weighing of the considerations set out in that paper in the context of the particular facts and circumstances of the case in question.