Dennis and Tax Practitioners Board - [2025] ARTA 1001

Dennis and Tax Practitioners Board [2025] ARTA 1001 (30 April 2025)
Applicant/s:   Eugene Gerard Dennis
Respondent:  Tax Practitioners Board
Tribunal Number:                 2024/3699
Tribunal:Administrative Review Tribunal
Place:Sydney
Date:30 April 2025
Decision:The Tribunal affirms the decision under review.

............................[SGD]............................................
Senior Member M Harrowell
Catchwords
Tax Agents – Tax Practitioners Board – registration as a tax agent – whether applicant satisfies relevant experience criteria – Decision to refuse application for registration affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed)
Administrative Review Tribunal Act 2024 (Cth)
Fair Work Act 2009 (Cth)
Income Tax Regulations (Cth) (repealed)
Tax Agent Services Act 2009 (Cth)
Tax Agent Services Regulations 2009 (Cth) (repealed)
Tax Agent Services Regulations 2022 (Cth)
Cases
Jayaretnam and Tax Practitioners Board [2016] AATA 421
Mula v Tax Agents’ Board of NSW 97 ATC 2001
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 35; [1998] HCA 55
Shi v Migration Agents Registration Authority 235 CLR 286; [2008] HCA 31
Statement of Reasons

By application lodged 13 December 2023 (application), Mr Dennis, the applicant, applied to the respondent (Board) for registration as a tax agent pursuant to s 20-25(1) of the Tax Agent Services Act 2009 (Cth) (TAS Act). Mr Dennis contended he satisfied the requirements for registration including those found in cl 201 of Sch 2 of the Tax Agent Services Regulations 2022 (Cth) (TAS Regulation).
On 24 April 2024, the Board rejected the application. This was because the Board was not satisfied Mr Dennis had undertaken relevant experience as required by cl 201(d) of the TAS Regulation. Mr Dennis was advised of this decision by letter dated 16 May 2024.
By application dated 6 June 2024 (review application), Mr Dennis applied to the Administrative Appeals Tribunal (AAT) for review of the decision under the former Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act). Following the repeal of the AAT Act and the enactment of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the Administrative Review Tribunal was authorised to determine the review application.
For the reasons that follow, I have decided that the decision to reject the application for registration should be affirmed.
Hearing and evidence
This review application was heard by audio video link on 8 April 2025.
Mr Dennis represented himself and the Board was represented by Ms Luck of Counsel.
Pursuant to directions of the Tribunal, each of the parties had provided a statement of facts, issues and contentions (SFICS) in support of their respective positions, together with various documentary evidence originally provided to the Board by Mr Dennis, in support of his application.
The documentary material provided to the Tribunal is contained in three volumes entitled “Tribunal Joint Hearing Book” (Tribunal Bundle/TB), and Respondent’s List of Authorities (being volumes 2 and 3). The parties also relied on written and oral submissions.
The documentary material included three documents entitled “Statement of relevant experience tax agent”…

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 Dennis 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: [2025] ARTA 1001
Decision Date: 30 April 2025

CaseChat Overview and Summary

The matter of Dennis and the Tax Practitioners Board involved a review of the Board's decision to refuse Mr Dennis' application for registration as a tax agent. The dispute centred on whether Mr Dennis satisfied the relevant experience criteria outlined in the Tax Agent Services Regulations 2009 (TAS Regulation). The Federal Circuit and Family Court of Australia presided over this matter.

The primary legal issue before the court was whether Mr Dennis had fulfilled the requirement of having at least one year of full-time relevant experience, or its part-time equivalent, in the five years prior to his application. This requirement is stipulated in clause 201(d) of the TAS Regulation. The court had to assess the evidence provided by Mr Dennis, particularly the Statements of Relevant Experience (SRE) completed by Mr Nee Wui (Keith) Lee, a Practice Manager of Etaxlocal Accountants Pty Ltd. The SREs detailed the nature and duration of Mr Dennis' involvement in tax agent services.

Upon reviewing the evidence, the court found that while Mr Dennis had worked for Etaxlocal, the hours recorded in the SREs were inconsistent and insufficient to meet the relevant experience criteria. The court concluded that Mr Dennis did not have the requisite one year of full-time or part-time equivalent relevant experience as mandated by the TAS Regulation. Therefore, the Board's decision to reject Mr Dennis' application for registration was affirmed.

The court's decision was based on the statutory requirement that the Board must reject an application if the eligibility criteria under the Tax Agent Services Act 2009 (TAS Act) and the TAS Regulation are not met. Specifically, the court found that Mr Dennis did not meet the experience requirement set out in clause 201(d) of the TAS Regulation. The final orders of the court affirmed the Board's decision to refuse the application for registration.

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

For the reasons that follow, I have decided that the decision to reject the application for registration should be affirmed.Hearing and evidence This review application was heard by audio video link on 8 April 2025. Mr Dennis represented himself and the Board was represented by Ms Luck of Counsel. Pursuant to directions of the Tribunal, each of the parties had provided a statement of facts, issues and contentions (SFICS) in support of their respective positions, together with various documentary evidence originally provided to the Board by Mr Dennis, in support of his application. The documentary material provided to the Tribunal is contained in three volumes entitled “Tribunal Joint Hearing Book” (Tribunal Bundle/TB), and Respondent’s List of Authorities (being volumes 2 and 3). The parties also relied on written and oral submissions. The documentary material included three documents entitled “Statement of relevant experience tax agent” (SRE) completed by Mr Nee Wui (Keith) Lee, a Practice Manager of Etaxlocal Accountants Pty Ltd (Etax). Etax was the company for which Mr Dennis had undertaken work said to constitute relevant experience for the purpose of his application. Mr Lee is a registered tax agent. The SRE is a printed form provided by the Board to applicants seeking registration as tax agents. The form requires completion by the person supervising the applicant for registration. The form includes: (a)this details of the name of the supervising tax agent (section 2);(b)details concerning work said to constitute substantial involvement in the provision of tax agent services or substantial involvement in the practice of a particular area of taxation law relating to tax agent services (section 4);(c)the period in which the services were provided (section 5);(d)an opinion from the supervisor as to the competence of the applicant (section 6); and(e)a summary of the tax agent services provided (section 7). As noted above, there were three SREs provided by Mr Lee. These are dated 14 November 2022 (TB 107), 18 November 2022 (TB 96) and 9 January 2024 (TB 124). There was some confusion arising from the sequence in which these were provided to the Board. However, nothing turns on this fact. The significant difference between the first and the last two is that Mr Lee stated in the SRE dated 14 November 2022, in section 5 (TB 108), that Mr Dennis had worked 1 hour per week, whereas each of the SREs, dated 18 November 2022 and 9 January 2024, stated Mr Dennis had worked 15 hours per week. As will be explained below, the time worked is relevant because there is an issue about whether Mr Dennis had undertaken relevant experience in order to qualify for registration as a tax agent as required by cl 201(d) of the TAS Regulation. In respect of the third SRE dated 9 January 2024, Mr Lee declared the following information to be true:Section 1: Mr Lee was the supervising agent.Section 2:Between the period of 1 July 2014 on 31 December 2023 Mr Dennis had worked 15 hours per week for Etax.Section 4:Having answered yes to the question of “Did the applicant’s relevant experience include substantial involvement” in the required areas as defined in cl 212 of the TAS Regulation, Mr Lee described the work undertaken by Mr Dennis has follows:Assisting clients with the actual tax preparation; assisting with the relevant source documents of the clients and at times assisting the clients with obtaining the actual source documents. (i.e. HBF statements, Bank interest statements, etc.,) Reconciling source documentsPreparation of depreciation schedulesInputting data to the BAS templates, Rental schedules, etc.Section 5:Between the period 1 July 2014 on 31 December 2023 Mr Dennis had worked 15 hours per week.Section 6:Commenting on the competency of Mr Dennis, Mr Lees said:EtaxLocal Accountants is an Online tax agent, all tax returns are completed online.Eugene is our External member who assisting client with tax preparation. We would prepare and lodge the tax return.Given his role as an external member, we do not show any concern for his competence in the provision of tax agent services.Section 7:Section 7 of the SRE was a summary of the tax agent services provided.This section stated:

Decision

Reasons for decision

Be that as it may, the requirement in cl 201(d) has not been met and the application must be refused under s 20-25(1) of the TAS Act.Conclusion The decision of the respondent to refuse the application for registration is affirmed.

Ratio Decidendi

Legal Principle Established

Section 20-25 provides:20-25 Registration 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. (2) The Board must decide your application within 4 months of receiving it. (3) If the Board does not decide your application within 4 months of receiving it, the Board is taken to have rejected your application. However, this does not apply if your application is for renewal of your registration. Note: For renewals of registration, see section 20-5 As is evident from s 20-25(1) of the TAS Act, the Board must reject the application if the eligibility requirements of the TAS Act and TAS Regulation are not met. Schedule 2 Part 2 of the TAS Regulation prescribes requirements applicable to individuals seeking registration. Relevant to Mr Dennis and this decision, in respect of individuals seeking registration on the basis they hold a tertiary qualification in accounting, cl 201 of the provides:Tertiary qualifications—accounting201 This clause applies if the individual: (a) has been awarded either: (i) a degree, or a post graduate award, in accounting from an Australian tertiary education institution; or (ii) a degree, or an award, in accounting that is approved by the Board, and that is from an equivalent institution; and (b) has successfully completed a course in commercial law that is approved by the Board; and (c) has successfully completed a course in Australian taxation law that is approved by the Board; and (d) has undertaken at least 1 year of full time relevant experience (or part time equivalent) in the last 5 years. Note 1: The Board may approve a course by an approval process, an accreditation scheme, or by other means. Note 2: For the definition of relevant experience, see clause 212 of this Part. In relation to cl 201(d), the Board (or this Tribunal on review) must be satisfied that the applicant for registration “has undertaken at least 1 year of full time relevant experience (or part-time equivalent) in the last 5 years”. The expression “last 5 years” refers to the period 5 years prior to the making of the application. The expressions “full time” and “part-time equivalent” are not defined in the legislation. Relevant experience is defined in cl 212 of the TAS Regulation as follows:relevant experience means work by an individual: (a) as a registered tax agent; or (b) as a tax agent registered under Part VIIA of the Income Tax Assessment Act 1936 as in force immediately before 1 March 2010; or (c) under the supervision and control of a registered tax agent; or (d) under the supervision and control of a tax agent registered under Part VIIA of the Income Tax Assessment Act 1936 as in force immediately before 1 March 2010; or (e) as an Australian legal practitioner; or (f) of another kind approved by the Board; that includes substantial involvement in the provision of one or more of the types of tax agent services described in section 90-5 of the Act, or substantial involvement in the practice of a particular area of taxation law to which one or more of those types of tax agent services relate. Note: The terms registered tax agent and tax agent service are defined in the Act.