Eley and Tax Practitioners Board (Taxation)
[2020] AATA 3192
•27 August 2020
Eley and Tax Practitioners Board (Taxation) [2020] AATA 3192 (27 August 2020)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2020/1825
Re:David Eley
APPLICANT
AndTax Practitioners Board
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:27 August 2020
Place:Perth
Pursuant to s 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal varies the decisions made by the Respondent on 20 February 2020 by:
1.changing the date of the commencement of the suspension of the Applicant’s registration under s 30-25 of the Tax Agent Services Act2009 (Cth) (TASA) to
14 May 2020; and2.amending the order made under s 30-20 of TASA to be as follows:
The Applicant must progress, as expeditiously as possible, the objection to the taxation assessments issued by the Commissioner of Taxation for the years ended 30 June 2002, 30 June 2003 and 30 June 2004 and must on the 18th day of each month, commencing on 18 September 2020, provide a report in writing to the Respondent of the progress of the objection.
...............................[SGD]...................................
Deputy President Boyle
CATCHWORDS
TAX AND COMMERCIAL – tax agent regulation – breach of Code – suspension of registration – order requiring tax agent to take action – scope of power to require tax agent to take action – objection to tax assessment – debt pending determination of objection – decision varied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29, 37, 41(2), 43(1), 43(1)(b)
Commonwealth of Australia Constitution Act (Cth) – ss 51, 51(ii), 51(xxxix)
Income Tax Assessment Act 1936 (Cth) – ss 167,
Income Tax Assessment Act 1997 (Cth) – ss 5-5, 995-1, 955-1(1)
Taxation Administration Act 1953 (Cth) – ss 14WZ, 14WZ(2), 14WZ(3), 255-1, 255-5, Division 286, Part IVC
Tax Agent Services Act 2009 (Cth) – ss 2-5, 30-5, 30-10, 30-15, 30-15(2), 30-15(2)(b), 30-15(2)(c), 30-20, 30-20(1), 30-25, 30-25(1), 60-5, 60-15, 60-95(1)(b), 60-125(2), 60-125(2)(b)(i), 70-15, Subdivision 30-B, Subdivision 60-E;
Part 3, Code of Professional Conduct (Cth) – ss 30-10(2), 30-10(14)
Tax Agent Services Regulations 2009 (Cth) – reg 204
CASES
Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473; [2008] HCA 41
Deputy Commissioner of Taxation v Chemical Trustee Limited [2010] FCA 1297
Federal Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146
HFFV and Tax Practitioners Board [2020] AATA 1712
Kang and Secretary, Department of Social Services [2019] AATA 758
Legal Practitioners Complaints Committee v Eley [2007] WASC 148
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Moore v The Commonwealth [1951] HCA 10REASONS FOR DECISION
Deputy President Boyle
27 August 2020
THE APPLICATION
On 20 February 2020 the Respondent’s Conduct Committee determined that the Applicant had breached s 30-10(2) of the Code of Professional Conduct (Code) set out in the
Tax Agent Services Act2009 (Cth) (TASA), in that he had failed to comply with taxation laws in respect to his personal affairs. As a consequence of that finding, the Respondent made the decisions to:
(a)suspend the Applicant’s tax agent registration for a period of four months pursuant to s 30-25(1) of TASA; and
(b)issue an order under s 30-20 of TASA requiring the Applicant to pay his outstanding income tax account (ITA) debt in full, or to enter into a payment arrangement with the Australian Tax Office (ATO), by 20 May 2020.
(the Decisions)
The Applicant seeks review of the Decisions.
Background
The Applicant has been a registered tax agent since 1 March 2010.
The Applicant was registered pursuant to regulation 204 in Schedule 2 of the Tax Agent Services Regulations 2009 as a person who has the academic qualifications required to be an Australian legal practitioner.
The Applicant was admitted as a legal practitioner in Western Australia on 2 May 1996.
On 10 July 2007 the Full Court of the Supreme Court of Western Australia ordered that the Applicant’s name be removed from the roll of practitioners: Legal Practitioners Complaints Committee v Eley[1] (LPCC v Eley).
[1] [2007] WASC 148.
On 8 March 2016 the Commissioner of Taxation (the Commissioner) issued default assessments to the Applicant pursuant to s 167 of the Income Tax Assessment Act 1936 (Cth) in respect to the income years ended 30 June 2002, 30 June 2003 and
30 June 2004.[2]
[2] ST3.
On 8 March 2016 the Commissioner also issued penalty assessments to the Applicant pursuant to Division 286 of the Schedule to the Taxation Administration Act 1953 (Cth) (TAA) in respect to each of the income years ended 30 June 2002, 30 June 2003 and 30 June 2004.
On 4 February 2019 the ATO issued a warning letter to the Applicant advising that it would be commencing collection action.
In about February 2019 the Respondent issued a letter to the Applicant advising that his outstanding personal income tax debts may affect his registration as a tax agent with the Respondent.
On 6 December 2019 the Respondent commenced an investigation into the conduct of the Applicant pursuant to Subdivision 60-E of TASA.
On 6 December 2019 the Respondent sent a notice by mail and an email to the Applicant advising him of the investigation and seeking his written response by 20 December 2019.
On 17 January 2020 a notice of alleged breach and possible outcomes and submissions to the Respondent’s Conduct Committee were sent to the Applicant with the request that the Applicant provide a response by 31 January 2020. No response was provided by the Applicant.
On 20 February 2020 the Respondent’s Conduct Committee determined that the Applicant had breached s 30-10(2) of the Code set out in TASA, in that he had failed to comply with taxation laws in respect to his personal affairs, and made the Decisions.
By letter dated 6 March 2020 the Respondent informed the Applicant of the Decisions, including the date for the commencement of his suspension of registration being
10 April 2020. By letter dated 10 March 2020 from the Respondent the date for the commencement of the suspension was changed to 14 April 2020 because 10 April 2020 was a public holiday.
Proceedings in the AAT
On 25 March 2020 the Applicant filed the application for review of the Decisions pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and section 70-10 of the TASA.
On 30 March 2020 the Applicant filed a request for a stay of the Decisions under s 41(2) of the AAT Act.
On 3 April 2020, with no opposition from the Respondent, the Tribunal made an interim stay order to suspend the implementation of the Decisions.
On 13 May 2020 the Tribunal heard the parties on the Applicant’s request for a stay and ordered that the interim stay order made on 3 April 2020 be revoked and ordered that, pursuant to s 41(2) of the AAT Act, the operation or implementation of the Decision to impose an order under s 30-20 of TASA requiring the Applicant to either pay the outstanding ITA debt in full or to enter into a payment arrangement with the ATO by 20 May 2020,
be stayed until the Tribunal’s decision on the Applicant’s application for review comes into operation.During the course of the hearing of the stay application on 13 May 2020 the Applicant advised the Tribunal that:
(a)he had not sought a review under Part IVC of the TAA in respect to any of the income tax assessments or penalty assessments; and
(b)he acknowledged he was now out of time for seeking a review under Part IVC of the TAA.
On 14 May 2020 the Respondent purported to suspend the Applicant’s tax agent registration.
On 15 June 2020 the Applicant lodged an objection and an application to the ATO to extend time for making an objection in respect to the income tax assessments issued and the penalty assessments made by the ATO.
The hearing
The application for review of the Decisions was heard on 7 July 2020. The Applicant represented himself and the Respondent was represented by Ms C Thompson.
The Tribunal had before it the following documents relevant to the issues to be determined by the Tribunal:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 15 June 2020 (ASFIC). The ASFIC included the objection lodged with the ATO referred to in [21] above;
(b)Applicant’s submissions dated 1 May 2020 in support of the Applicant’s request for a stay under s 41(2) of the AAT Act (see [16]-[18] above);
(c)
Applicant’s submissions and list of authorities (and copies of authorities) dated
6 July 2020;
(d)Respondent’s Statement of Facts, Issues and Contentions dated 23 June 2020 (RSFIC);
(e)Respondent’s submissions dated 17 April 2020 in opposition to the Applicant’s request for a stay under s 41(2) of the AAT Act;
(f)
Respondent’s submissions and list of authorities (and copies of authorities) dated
3 July 2020;
(g)
bundle of documents lodged by the Respondent under s 37 of the AAT Act
(T documents);
(h)
email exchange between the Applicant and the ATO from 18 December 2012 to
12 March 2013 relating to the Applicant having been struck off the roll legal practitioners (R1); and
(i)
ICP statement of account showing calculation of Applicant’s ITA debt as at
1 July 2020 (R2).
The Applicant gave evidence at the hearing and was cross-examined. No other witness was called.
The Issues
The RSFIC identifies the issues for determination as being:
(a)whether the Applicant breached subsection 30-10(2) of the Code set out in TASA by failing to comply with the taxation laws in the conduct of his personal affairs; and
(b)if the answer to issue (a) is yes, what are the appropriate administrative sanctions to be applied to the Applicant?
The Applicant does not separately or clearly identify the issues that he says the Tribunal is to determine. From the ASFIC and the Applicant’s submissions in support of the stay application, the submissions in support of the substantive application and the application for review lodged by the Applicant, the Tribunal understands the issues raised by the Applicant to be:
(a)jurisdiction of the Respondent to make the Decisions;[3]
(b)whether the Applicant owes the tax claimed;[4]
(c)whether the Respondent has the power to make the second Decision (i.e. whether section 30-20 of TASA empowers the Respondent to make an order requiring the Applicant to pay his outstanding ITA debt in full, or to enter into a payment arrangement with the ATO, by 20 May 2020);[5]
(d)the period of the suspension under and the date for commencement of the period of suspension;[6] and
(e)whether TASA is constitutional as its terms and operation go beyond the s 51(ii) and 51(xxxix) of the Commonwealth of Australia Constitution Act (Cth) (the Constitution).[7]
[3] Stay submissions para. 20.
[4] ASFIC para. 3.
[5] ASFIC paras. 7-13.
[6] ASFIC paras. 14-16.
[7] Applicant’s submissions dated 6 July 2020.
Legislative framework
Section 2-5 of TASA identifies the objects of the act to be:
The object of this Act is to ensure that *tax agent services are provided to the public in accordance with appropriate standards of professional and ethical conduct.
This is to be achieved by (among other things):
(a)establishing a national Board to register tax agents, BAS agents and tax (financial) advisers; and
(b)introducing a *Code of Professional Conduct for *registered tax agents, BAS agents and tax (financial) advisers; and
(c)providing for sanctions to discipline registered tax agents, BAS agents and tax (financial) advisers.
Section 60-5 of TASA establishes the Tax Practitioners Board, that is the Respondent,
and s 60-15 of TASA identifies its functions as:
(a)to administer the system for the registration of *registered tax agents, BAS agents and tax (financial) advisers; and
(b)to investigate:
(i) applications for registration; and
(ii) conduct that may breach this Act; and
(c) to impose sanctions for non-compliance with the * Code of Professional Conduct; and
(d) to issue, by legislative instrument, guidelines to assist in achieving the functions mentioned in paragraphs (a), (b) and (c); and
(e)such other functions as are conferred on the Board by this Act, the regulations or any other law of the Commonwealth; and
(f)to do anything incidental or conducive to the performance of its functions.
Subdivision 60-E of TASA empowers the Respondent to undertake investigations into possible breaches of TASA.
Subsection 60-125(2) of TASA provides:
Investigation relating to whether conduct breaches this Act
(2)If the Board investigates conduct under section 60-95 and finds that the conduct breaches this Act, the Board must either:
(a) make a decision that no further action will be taken; or
(b) do one or more of the following:
(i) impose one or more sanctions under Subdivision 30-B;
(ii) terminate an entity's registration under Subdivision 40-A;
(iii) apply to the *Federal Court for an order for payment of a pecuniary penalty under Subdivision 50-C;
(iv) apply to the Federal Court for an injunction under section 70-5.
Section 30-15 of TASA provides:
Sanctions for failure to comply with the Code of Professional Conduct
(1)This Subdivision applies if the Board is satisfied, after conducting an investigation under Subdivision 60-E, that you have failed to comply with the *Code of Professional Conduct.
(2)The Board may do one or more of the following:
(a) give you a written caution;
(b) give you an order under section 30-20;
(c) suspend your registration under section 30- 25;
(d) terminate your registration under section 30-30.
Part 3 of TASA contains the Code. Section 30-5 provides:
Application of the Code of Professional Conduct
The *Code of Professional Conduct applies to you if you are a *registered tax agent, BAS agent or tax (financial) adviser.
Section 30-10 of TASA relevantly provides:
The Code of Professional Conduct
Honesty and integrity
(1)You must act honestly and with integrity.
(2)You must comply with the *taxation laws in the conduct of your personal affairs.
(3)…
Taxation laws are defined broadly in s 995-1 of the Income Tax Assessment Act 1997 (Cth) (ITAA97) as:
(a)an Act of which the Commissioner has the general administration (including a part of an Act to the extent to which the Commissioner has the general administration of the Act); or
(b)legislative instruments made under such an Act (including such a part of an Act); or
(c)the Tax Agent Services Act 2009 or regulations made under that Act.
Under s 255-5 of the Schedule to the TAA an amount of tax-related liability that is due and payable is a debt due to the Commonwealth and s 255-1 defines a tax-related liability as a pecuniary liability to the Commonwealth arising under a taxation law.
Section 5-5 of ITAA97 relevantly provides:
(2)The income tax is only due and payable if the Commissioner makes an *assessment of your income tax for the year.
(3)However, if the Commissioner does make an *assessment of your income tax for the year, the tax may be taken to have been due and payable at a time before your assessment was made.
CONSIDERATION
The Constitutional issue
As noted above, the Applicant submits that TASA is unconstitutional arguing that it “is not an act that the Commonwealth Government is entitled to pass under The Constitution”.[8] The Tribunal assumes that the Applicant’s reference to the Commonwealth Government is meant to be a reference to the Parliament (as that term is defined in the Constitution).
[8] Submissions dated 6 July 2020, para. 1.
The Applicant argues that, notwithstanding the definition of taxation law in s 995-1(1) of ITAA97 as including TASA, TASA is not a taxation law, or at least not a taxation law lawfully made pursuant to the power under s 51(ii) of the Constitution.
Section 51 of the Constitution, relevantly, provides:
Legislative powers of the Parliament [see Notes 10 and 11]
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(i)…;
(ii)taxation; but so as not to discriminate between States or parts of States;
…
(xxxix)matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
The Applicant concedes that the power under s 51(ii) of the Constitution is not limited to laws imposing taxes but extends to “what is incidental to the imposition and collection of taxation” citing Dixon J in Moore v The Commonwealth[9] at [8].
[9] [1951] HCA 10.
The Applicant points to the objects of TASA as identified in s 2-5 (see [27] above) and argues that those objects do not relate to the imposition or collection of taxes, nor do they relate to any matter that is incidental thereto. No other section of the Constitution, according to the Applicant, relates to the objects of TASA as identified, and s 51(xxxix) adds nothing more to the extended definition as stated by Dixon J (see [41] above).
Irrespective of the merit of the Applicant’s argument, it is not an argument that can be considered or dealt with by the Tribunal. The Tribunal clearly has no power to determine that an act of the Parliament is beyond the Parliament’s constitutional powers. That is a matter for the High Court. What this Tribunal has before it is an act of the Parliament, duly passed which, until it is overturned by the appropriate court, is binding. The Tribunal proceeds on that basis.
Is the Applicant in breach of the Code?
As is set out in the Respondent’s letter dated 6 March 2020 (see [14] above), the Decisions were based on the Respondent’s finding that the Applicant had failed to comply with
s 30-10(2) of the Code in TASA. Proceeding, as the Tribunal must, on the basis that TASA is valid and binding, the first issue for determination is whether the Applicant breached subsection 30-10(2) of TASA by failing to comply with the taxation laws in the conduct of his personal affairs.
There appear to be a number of arguments that the Applicant raises as to why he is not in breach of a taxation law. In section 3 of the application form lodged in the Tribunal, “Reasons for the Application”, the Applicant says, amongst other things, that:
3.The decision [of the Respondent] is simply wrong, as there has been no failure to comply with my personal tax obligations, simply because I have not paid a disputed amount in a tax assessment.
…
5.…I have complied with my obligations under the tax laws. The taxation laws allow you to determine when a tax liability is due to be paid, but there is no provision in the taxation laws that compels me to make any payment of tax to the ATO. If the due date for payment of an alleged tax debt has passed,
the ATO can take action to recover any debt due and it is my entitlement to resist any such action if I believe that I can do so.
If the Applicant’s argument is that he is not obliged to pay tax as assessed by the Commissioner, or that he has complied with his obligations under taxation laws, then his argument is patently wrong. Clearly the taxation laws compel a taxpayer to pay tax.
When the Commissioner issues an assessment (s 5-5 of ITAA97; see [36] above), a tax-related liability arises which is a debt due to the Commonwealth (s 255-1 of TAA; see [35] above). Failure to pay that debt is a breach of a taxation law.
The Applicant does not dispute that on 8 March 2016 assessments were issued by the Commissioner for the years ended 30 June 2002, 2003 and 2004.[10] The total of those assessments was around $56,700. With interest and penalties, the total tax debt is now around $378,500.[11] Those assessments each nominated the date that the assessed amount of tax was due and payable. The assessment for 2002 nominated
21 November 2002,[12] the assessment for 2003 nominated 21 November 2003[13] and the assessment for 2004 nominated 22 November 2004.[14] The Applicant concedes that he has not paid the amounts of the assessments. It therefore follows that he is in breach of a taxation law.
[10] ST3.
[11] R2.
[12] ST3/164.
[13] ST3/166.
[14] ST3/168.
It seems that by the time of the hearing the Applicant had abandoned, or was at least not pushing, his argument that, somehow, he was not obliged to pay the amounts of the assessments, penalties and interest or was not in breach of a taxation law. The following exchange took place in cross-examination:[15]
COUNSEL:…You were aware then, as you are today, that you had an obligation to pay outstanding debts to the Commissioner, didn’t you?
APPLICANT: I was aware there was a tax debt that was issued.
COUNSEL:No. Answer the question, Mr Eley. You were aware then of your obligations as a tax practitioner to pay outstanding debts to the Commissioner?
APPLICANT: Disputed debts, yes.
…
COUNSEL:Okay. So the breach of the code is the failure to pay the tax debt, which you haven’t paid. You accept that now, don’t you?
APPLICANT: Yes.
[15] Transcript at 36-46
Given the Applicant’s apparent abandonment of his argument that he was not obliged to pay the assessments, penalties and interest and, apparently his acceptance that that constituted a breach of the Code, on what basis does the applicant dispute the Decisions?
Apart from his argument that TASA is unconstitutional, it is not clear on what basis the Applicant argues that he is not in breach of the Code. The majority of the Applicant’s arguments contained in the application to the Tribunal and his submissions and ASFIC, appear to go to the penalty imposed rather than whether he is in breach of the Code.
Apart from the argument that he is not obliged to pay the tax debt arising from the assessments, penalties and interest dealt with above, the application for review lodged by the Applicant raised the following:
(a)the Respondent failed to comply with proper due process (presumably) in its investigation and the making of the Decisions. The investigation involved unauthorised disclosure by the ATO of confidential tax information (paras. 1 and 2);
(b)
the Respondent’s Decisions are based on incomplete or wrongly assessed information or “simply make no sense” because in finding that he was in breach of
s 30-10(2) of TASA the Respondent referred to a failure to pay tax debts when there was only one debt implying that there was some form of “continued non-compliance” (para. 4);
(c)the Respondent failed to take into account that he had reduced the tax liability by around $17,000 (para. 4(b);
(d)there is no basis for the Respondent’s finding that the Applicant had taken no action to address his outstanding tax liability over an extended period when “all that is being considered is one disputed tax debt” (para. 4(c));
(e)the actions of the Respondent are an abuse of process as they are undertaking that function of a de-facto tax collector on behalf of the ATO and the ATO has taken no steps to recover the tax debt (para. 5);
(f)there is no power in the Respondent to issue an order which requires the Applicant to pay money to or enter into an agreement with the ATO. The power to issue orders under s 30-20 of TASA is limited to orders relating to competency and skills (para. 5);
(g)
the Decisions are unreasonable and disproportionate to any alleged breach.
The income generated by the Applicant through his work as a tax agent is
“not substantial” and he has in effect subsidised his tax agent work with teaching jobs. His clients are low income earners who would be unduly prejudiced by his suspension (para. 6); and
(h)the ATO assessments were default assessments issued after he returned from several years overseas and without prior notice. They were based on partnership returns lodged by his previous partners while he was overseas. He did not receive the income shown in the returns lodged by his former partners. The tax debt was written off in June 2017 but when he lodged a tax return in November 2018 claiming a tax refund of around $12,000, the ATO re-applied the tax debt and added further interest/penalties resulting in the tax debt being around $350,000 (para. 7).
The ASFIC raised the following:
(a)the Applicant lodged an objection to the assessments with the ATO on 15 June 2020. The objection was attached to the ASFIC;
(b)the Applicant is not eligible to enter into a payment plan with the ATO (para. 5);
(c)the orders that can be made under s 30-20 of TASA are very limited and also very prescriptive (para. 8);
(d)orders under s 30-20 are intended for the purpose of requiring a person to undergo training and education to address a deficiency in the services that the person is providing, not for the payment of money (para. 10, 11 and 12); and
(e)the change in the period and starting date of the suspension was an abuse of process attacking the power of the Tribunal by circumventing the stay order made by the Tribunal.
The Applicant’s submissions dated 1 May 2020 in support of the stay asserted that the order issued by the Respondent requiring payment to or agreement with the ATO is ultra vires, but otherwise did not raise any arguments that are relevant to the substantive application.
The Tribunal rejects the claims by the Applicant that the investigation by the Respondent under Subdivision 60-E of TASA was anything other than properly carried out. The material before the Tribunal shows that the required notice of the investigation was given to the Applicant on 6 December 2019 and that the Applicant was given the opportunity to answer the allegations made against him.[16] In cross-examination the Applicant was taken to the letter from the Respondent advising him of the investigation and inviting him to provide submissions[17] and the following exchange took place:[18]
[16] T3.
[17] T3.
[18] Transcript at 42.
COUNSEL:Okay. See that letter dated 6 December 2019?
APPLICANT: Yes.
COUNSEL:That’s a letter from the Tax Practitioner’s Board advising you that it was commencing an investigation and inviting you to make submissions in respect of that and in particular, if you look about halfway down the page where the bolded words “20 December 2019” are they have invited you to make submissions in relation to the reasons for your overdue tax debt, supporting information or documents you consider relevant towards consideration and any response you may make - and they tell you that any response you make will be referred to the board’s committee for consideration. It’s inviting you to address these issues. Do you see that?
APPLICANT: Yes.
COUNSEL:And you, in fact, didn’t provide any information about your overdue tax debt, did you?
APPLICANT: No.
COUNSEL:And you didn’t provide any supporting information or document relevant to the board’s consideration of your overdue tax debt, did you?
APPLICANT: No.
COUNSEL:And you didn’t file an objection, did you?
APPLICANT: Not then, no.
The Applicant asked the for an extension of time in which to provide submissions,
which was given by the Respondent. Notwithstanding that extension, the Applicant failed to provide any submissions. The following exchange took place in cross-examination:[19]
[19] Transcript at 43-44.
COUNSEL:[the Respondent] Inviting you to make submissions by the close of business on 31 January 2020. See that?
APPLICANT: Yes.
COUNSEL:The third paragraph. So again, the board gave you more time to provide submissions, didn’t it?
APPLICANT: Yes. I don’t actually recall seeing that one, (indistinct).
COUNSEL:You didn’t respond to this letter did you?
APPLICANT: No. I don’t actually recall reading that one.
COUNSEL: And you didn’t provide any submissions, did you?
APPLICANT: No.
COUNSEL: Or any explanation as to why the tax hadn’t been paid?
APPLICANT: No.
…
COUNSEL:The executive summary [in the Respondent’s Decisions] on that page sets out a number of times where you were issued with information about the action the board was looking at taking and it says, in the fourth dot point;
Mr Eley has not provided a direct response to the notice of investigation.
And then two dot points down;
Mr Eley has not provided a response to submission.
That’s all correct, isn’t it?
APPLICANT: Yes.
COUNSEL:And so when the board [sic] me to consider the situation it only had the information that was before it, being the information that is T3. It didn’t have any submissions from you - or any information from you - about why it was that the tax debt was unpaid, did it?
APPLICANT: No.
The other argument that the Applicant raised, and to which he seemed to return on a number of occasions at the hearing, was the argument that he was not in breach of a taxation law because he disputed the tax debt and/or had lodged an objection to the assessments. In opening the Applicant made the following submission:[20]
[20] Transcript at 8-9.
APPLICANT: …it is open for me to argue vigorously before you today that there should be no suspension order whatsoever because of the fact there’s been compliance made.
TRIBUNAL:When you say there’s compliance, that’s compliance with the tax law.
APPLICANT: Well, there’s been - there’s been compliance, yes. There’s been objection made in terms of - objection to the - objecting to the default assessments going back 15, 16 years, as it may be.
…
APPLICANT: That objection is in place, which to a large event was the positive objective of the TPB it appears was to get an objection filed, or somehow moving to, can we tick the box as being compliance in that context.
TRIBUNAL:But the outstanding assessed tax hasn’t been paid, has it?
APPLICANT: No, it hasn’t, no.
TRIBUNAL:So there’s non-compliance in that regard.
APPLICANT: Non-compliance in terms of the payment of the amount claimed. There’s compliance in terms of there’s an objection made to the assessments, which I think everyone can face the fact these are assessments that are very old and very contentious, and as you mentioned yourself at the previous hearing, it’s something likely to end up back here anyway in any event because of the nature of what the assessments are and when they were done, and there’ll be an issue as such, things as (indistinct) and such to deal with because of the timeframes.
This argument is misconceived. Firstly, it was not until 15 June 2020 that the Applicant lodged an objection with the ATO to the assessments. Section 14ZW of the TAA requires objections to assessments to be lodged within four years of the issue of the assessment. The assessments in question were issued in March 2016. The objection to those assessments was, therefore, lodged out of time. More fundamentally, however, the fact that the Applicant has now lodged an objection, even if it had been lodged in time, does not alter the fact that he still owes the tax and is still in breach of his obligation to pay his tax debt. The lodgement of an objection does not suspend the obligation to pay the tax liability as assessed. As was noted by Kenny J at [50] in Deputy Commissioner of Taxation v Chemical Trustee Limited[21]:
50.The Commissioner is not prevented from suing for recovery of tax debts simply because the taxpayer has not had relevant objections determined or has not exhausted review or appeal rights: see TAA 1953, ss 14ZZM and 14ZZR and Clyne v Deputy Commissioner of Taxation (1983) 48 ALR 545 at 547; (1983) 57 ALJR 673 AT 675.
[21] [2010] FCA 1297.
The Applicant was at the time of the Decisions, and is still now, in breach of the taxation law and, accordingly, in breach of the Code.
The Tribunal also notes that it was only after it emerged at the hearing of the interlocutory application for a stay on 13 May 2020 (see [18] above) that the Applicant’s failure to lodge an objection to the assessments was an issue, that the Applicant then lodged the objection. Up to that point, despite asserting to the Respondent in applications for renewal of his registration, and in these proceedings in the AAT, that the assessments were “disputed”, the Applicant had done nothing to dispute or object to the assessments. The Applicant was cross-examined on this point at the hearing. He was taken to the declarations that he had made to the Respondent when seeking renewal of his registration in 2017, 2018 and 2019. While in each form the Applicant had advised that he had outstanding tax liabilities, in each case he advised that he disputed the tax liability. For instance, in the form lodged by the Applicant with the Respondent on 28 January 2018,[22] the Applicant advised that “I have a current disputed default tax assessment”.[23] He was cross-examined on this statement as follows:[24]
[22] ST6.
[23] ST6/181.
[24] Transcript 36.
COUNSEL:…You were aware then, as you are today, that you had an obligation to pay outstanding debts to the Commissioner, didn’t you?
APPLICANT: I was aware there was a tax debt that was issued.
COUNSEL:No. Answer the question, Mr Eley. You were aware then of your obligations as a tax practitioner to pay outstanding debts to the Commissioner?
APPLICANT: Disputed debts, yes.
COUNSEL:And you were aware in 2017, 2018 and 2019 of the provisions under Part IVC of the Tax Administration Act that enabled you to make an objection if you chose to, in respect of taxation assessments, weren’t you?
APPLICANT: Yes.
COUNSEL:So none of that is news to you?
APPLICANT: No.
COUNSEL:And you at no time told the Tax Practitioner’s Board that you had not objected to those assessments, did you?
APPLICANT: No, I didn’t tell them I had not objected.
…
COUNSEL:You had not lodged an objection?
APPLICANT: Yes.
COUNSEL:You had done nothing, had you?
APPLICANT: That’s the lodge - I hadn’t lodged an objection.
COUNSEL:No, I am asking you - you had done nothing?
APPLICANT: I hadn’t lodged an objection.
COUNSEL:You’d done nothing, had you?
APPLICANT: Well, I’d looked for things. I’d examined - I disputed them.
COUNSEL:You had done nothing to dispute them with the Commissioner?
APPLICANT: I had not lodged an objection with the Commissioner, yes.
The cross-examination continued for some time along these lines with the Applicant,
in effect, refusing to concede that he had done nothing to raise any objection or dispute the assessments with the ATO, yet being unable to say what he had done to dispute the liability as he had asserted in the renewal applications.
The Tribunal asked the Applicant to comment on a statement that he had made in his 2019 declaration in support of his application for renewal of registration[25] as follows:[26]
[25] ST7.
[26] Transcript at 40.
TRIBUNAL: What about your statement? If you have got page 188 in front of you, in the middle of the;
Explain why they should not adversely affect your eligibility.
You actually say;
I am in fact obliged to dispute the matter and take it through every possible avenue of investigation to hold the ATO accountable for the misconduct in this matter.
What were you referring to there?
APPLICANT: Well, that I had to take the matter through with them.
TRIBUNAL:But you hadn’t?
APPLICANT: I hadn’t, no.
TRIBUNAL:Well, I am not making a finding but it is a fair inference that a reader of that where you are implying - or it’s a fair inference to draw - that you are taking it through every dispute possible through the legal process, but you hadn’t done anything?
APPLICANT: Well that was - that was my intention.
TRIBUNAL:But you hadn’t done anything for the three years?
APPLICANT: No, I hadn’t. As I said before…
As the Respondent also points out,[27] the Applicant cannot challenge the existence or amount of the taxation liability in these proceedings and is confined to the exercise of his rights under Part IVC of the TAA for that purpose: Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd[28] at [30]-[47]; Federal Commissioner of Taxation v Futuris Corporation Limited[29] at [64]-[67].
[27] RSFIC para. 27.
[28] (2008) 237 CLR 473; [2008] HCA 41.
[29] [2008] HCA 32; (2008) 237 CLR 146.
Nothing that the Applicant has raised, either in his various written submissions outlined above, or at the hearing, establishes any basis for finding that the Applicant is not in breach of the taxation laws. It is clear to the Tribunal that the Applicant was, and is still, in breach of a taxation law and was, and is now, therefore in breach of s 30-10(2) of the Code. Accordingly, the Respondent was, and this Tribunal is, empowered under s 30-15 of TASA to impose sanctions under s 30-15(2) of TASA which include the power to make an order under s 30-20 (s 30-15(2)(b)) and to suspend the Applicant’s registration under s 30-25
(s 30-15(2)(c)).
What are the appropriate administrative sanctions to be applied to the Applicant?
The Tribunal is satisfied that the investigation under Subdivision 60-E of TASA was carried out in accordance with the requirements of TASA and that the Applicant was afforded procedural fairness. Following the investigation, the Respondent was, by operation of s 60-125(2) of TASA, empowered, amongst other things, to impose one or more sanctions under Subdivision 30-B of TASA (s 60-125(2)(b)(i)). Subsections 30-20 and 30-25 come within Subdivision 30-B of TASA.
The suspension under s 30-25 and the order under s 30-20 were, therefore, made after due process in accordance with TASA. The issue for determination by the Tribunal is whether the sanctions imposed by the Respondent were or are appropriate. More correctly,
the decision that this Tribunal is required to make, standing in the shoes of the Respondent, is what is the correct or preferable decision? As this Tribunal noted in Kang and Secretary, Department of Social Services[30] at [18]:
The role of the Tribunal in such a review is to determine for itself what is the correct and preferable decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi). The Tribunal is not limited to reviewing the decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. Its role is ‘to “do over again” what the original decision maker did’: see Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21at [41] per Perry J (White and Wigney JJ agreeing), referring to Shi at [100] (per Hayne and Heydon JJ) and at [37] (per Kirby J). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at [589] and reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [37].
[30] [2019] AATA 758.
The Suspension under s 30-25 of TASA
In his opening at the hearing the Applicant made the following statement:[31]
I wasn’t going to actually oppose the four month suspension for the sake of delay in extending this actual hearing because as I think both instructing counsel for the TPB is aware and yourself, I’ve had some personal issues that have been quite compelling in recent times, and they’ve really overtaken the events of my own personal life, so they are more compelling to me right now than the practice of tax for four months. I won’t push that today, Mr Deputy President.
[31] Transcript at 9.
The Tribunal did point out to the Applicant that, as this was a hearing de novo with the Tribunal doing over again that which the original decision-maker had done and reaching its own view on what the correct or preferable decision is, there was the possibility that the Tribunal may form the view that a longer period of suspension, or some other sanction, might be appropriate.
The Respondent contends[32] that a four-month suspension was/is appropriate given that the Applicant has:
(a)breached subsection 30-10(2) of the Code;
(b)until 15 June 2020, failed to take any steps to address the debt;
(c)consistently maintained to the Respondent that he was disputing the taxation liabilities, whilst failing to exercise his rights under Part IVC of the TAA;
(d)demonstrated no insight into his breach of the Code by failing to engage with the Respondent during the investigation process; and
(e)previously been the subject of disciplinary proceedings by another regulatory body.
[32] RSFIC para. 30.
The other regulatory body to which the Respondent is referring is the Legal Practitioners Complaints Committee, the legal disciplinary body in Western Australia, which made a number of findings against the Applicant as a legal practitioner and, in 2007, applied to the Supreme Court of Western Australia to have the Applicant struck off the role of practitioners. Orders striking the Applicant off the role of practitioners were made by the Supreme Court in July 2007; LPCC v Eley.
The Tribunal agrees with the Respondent’s contention that the suspension of the Applicant’s registration for four months was, and is, appropriate. The Applicant’s breach of the Code was, and still is, significant and a term of suspension is totally appropriate.
The Tribunal is, as the Respondent was, concerned by the Applicant’s failure to address the breach in any way until June this year, and then only after it was made clear in the course of these proceedings that he would have to take steps to address the ongoing breach. The Tribunal is also mindful of the fact that the period of the Applicant’s suspension has in large part now passed.
The order under s 30-20 of TASA
The Respondent submits[33] that the order that it made under s 30-20 is appropriate given:
(a)it is a core obligation of a tax agent that he or she be compliant with their own taxation obligations: subsection 30-10(2) of the TASA;
(b)until 15 June 2020, the Applicant took no steps to address his outstanding tax debts, despite being issued with the income tax assessments and penalty assessments by the Commissioner of Taxation on 8 March 2016 and on several occasions advising the Respondent that the debt was in dispute; and
(c)the order is directly aimed at requiring the Applicant to attend to, and rectify, his breach of the Code.
[33] RSFIC para. 33.
The Tribunal does not disagree with the intent of the order that the Respondent made,
that is to get the Applicant to comply with his tax obligations, a fairly fundamental obligation under the Code. The issue, however, is as to the power to make an order of that type made by the Respondent under s 30-20 of TASA. This is the issue that the Applicant has raised in the submissions referred to in [49] and [50] above. It is probably best expressed in the Applicant’s submission reproduced at [49(f)] above, namely, that the power to issue orders under s 30-20 of TASA is limited to orders relating to competency and skills.
The power to make an order of the type made by the Respondent was raised by the Tribunal with the Respondent’s counsel at the interlocutory stay hearing on 13 May 2020.
It was because of the Tribunal’s reservations about the Respondent’s power to make such an order, an order in effect requiring the Applicant to pay money or reach an agreement, that the stay order made by the Tribunal on 13 May 2020 related only to the order requiring the Applicant to pay or reach agreement on payment of his tax debt (see [18] above).
The Respondent made more specific submissions on the power to make such an order in its submissions dated 3 July 2020. Those submissions were to the following effect:
(a)The structure of s 30-20 is to provide a broad general power in the chapeaux, followed by three specific powers in paragraphs (a)-(c).
(b)In Leon Fink Holdings Pty Ltd v Australian Film Commission[34] (Leon Fink Holdings) at 678-680 the High Court considered a similarly constructed, albeit differently worded, section of the Australian Film Commission Act 1975 (Cth). The Respondent cites Mason J comment that:
[34] (1979) 141 CLR 672.
We have here, not two distinct powers, the one general and the other special, but one power in general terms followed by specific powers which may be no more than particular expressions or exemplifications of what may be done in the exercise of the general power. This circumstance in itself would not make inapplicable the principle of construction which was adopted in the two cases to which I have referred. However, the presence of the words "without limiting the generality of the foregoing" is an important distinguishing feature of s. 21. The critical question is whether there is any implied restriction upon the general power to be derived from the presence of par. (a), when there is a clause which is designed to preserve the generality of the unqualified power according to its terms.
. . .
In this case the words "without limiting the generality of the foregoing" evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows. The clause therefore operates to negative the restrictive implication which might otherwise have been derived from the presence of the specific power to lend contained in par. (a).
…
In every case it will depend on the precise character of the relevant provisions and on the context in which they are found. Here it is only the limitation on the specific power to lend which confines it to the making of loans to producers of Australian films that is relied upon to restrict the general power, or to inhibit resort to it, as authority for lending to others. To my mind this is not a sufficiently solid basis for restricting the general power or denying its availability, when it is followed by a clause whose purpose is to ensure that the presence of the particular powers does not erode the generality of the initial grant of power.
(Respondent’s emphasis)
(c)
Section 30-20 similarly contains a broad power followed by “particular expressions or exemplifications of what may be done in the exercise of the general power”.
The words “including, but not limited to” in s 30-20 are important in the section’s construction because they “evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows”.
(d)The words “including but not limited to” have been considered, in other contexts, to broaden the scope of a list of items specifically mentioned in a written list.
(e)
The objective of section 30-20 is to grant the power to make orders requiring a tax practitioner to do something which addresses the breach of the Code and provides specific authority for some types of actions for which it might be required. That is,
if the use of the power is to require a practitioner to undertake some remedial conduct directed at the breach, it is within the general power conferred by the section.
(f)The Respondent cites the Explanatory Memorandum for the bill which explained the rationale for the introduction of Subdivision 30-B against the background of then current administrative sanctions which were not always effective, and noted:
The Bill provides the Board access to a graduated range of administrative sanctions for breaches of the Code, so that the Board is able to respond to breaches appropriately.
…
The sanctions available to the Board allow the Board to tailor the sanction to the seriousness of the conduct that breaches the Code. The purpose of the sanctions is not primarily to punish tax agents and BAS agents, but rather to improve the performance of agents and maintain public confidence in agents' adherence to certain standards.
(g)The Respondent argues that a construction should be given which facilitates the general objective of the administrative sanctions which is to respond appropriately to breaches of the Code.
(h)The Respondent cites HFFV and Tax Practitioners Board[35] (HFFV) as a case in which the Tribunal has recently used the power under s 30-20 in such a way. In that matter the Tribunal made extensive orders requiring the applicant to provide information to enable his outstanding tax obligations to be calculated and included an order that the amounts, once calculated, were to be paid by a specified date. None of the orders made by the tribunal in that matter were of a type that fitted within any of the sub-paragraphs to section 30-20. Given the ambit of section 43(1) of the AAT Act and the task of the tribunal, it could only have been exercising the power of the respondent on review in making the orders it made under section 30-20.
(i)The Respondent says that the order as made is permissible and appropriate because of:
(i)the failure of the Applicant to address the debt in the more than 4 years since March 2016 when he received the assessments;
(ii)the Applicant’s continued misleading conduct of advising the Respondent he was disputing the debt when in fact he did nothing about it;
(iii)the Applicant’s prior history of failing to properly engage with a professional regulator;
(iv)the Applicant’s failure to engage with the Respondent’s investigation; and
(v)the Applicant’s request to extend time to object made under section 14ZW(2) of the TAA failing to address section 14ZW(3) of the TAA, so that it fails to comply with the mandatory requirements of the TAA.
[35] [2020] AATA 1712.
The Tribunal agrees with the Respondent’s contention that the intent and scope of s 30-20 of TASA, as indicated by the Explanatory Memorandum (see [72(f)] above), is to allow for tailored sanctions to address the breach. As the Explanatory Memorandum says, it is not to punish the agent, but rather to “improve the performance of agents and maintain public confidence in agents' adherence to certain standards”. That end would be achieved by an order of the type made by the Respondent, an order which went straight to the heart of the Applicant’s breach, his failure to pay his tax debt.
The Tribunal does not accept the limited construction of s 30-20 of TASA proposed by the Applicant. Firstly, that construction overlooks the structure of Subdivision 30-B of TASA which starts with the Respondent being empowered under s 30-15, following an investigation under Subdivision 60-E, to make orders under s 30-20. The power to investigate under Subdivision 60-E includes the power to investigate an agent for conduct which may breach TASA (s 60-95(1)(b)). It follows that the purpose of making orders requiring an agent to take action under s 30-20 would include action to address the breach identified by the investigation. That is what the order made by the Respondent did.
Secondly, as the Respondent argues, the limited construction proposed by the Applicant also overlooks the language of s 30-20, specifically the words “including, but not limited to” following the general statement of the power to make orders (see Leon Fink Holdings as cited at [72(b)] above). The construction proposed by the Applicant, limited to orders requiring a person to undergo training and education to address a deficiency in the services (see [49] and [50] above), does not facilitate the general objective of TASA which includes provision of administrative sanctions tailored to address breaches. That was certainly the approach taken by the tribunal (Deputy President F D O’Loughlin QC and Senior Member Professor A O’Connell) in HFFV.
The concern that the Tribunal raised at the interlocutory stay hearing and at the substantive hearing, was the utility of the order in the form in which it was made, particularly given that the Applicant has now lodged an objection to the assessments. While the lodgement of the objection does not remedy the Applicant’s breach of the Code (see [55]-[56] above) it is a step in the right direction. The challenge is to put in place an order for a process that would, or could, resolve the breach in the same way that the orders made in HFFV aimed at doing. Counsel for the Respondent, in discussion with the Tribunal at the hearing, put the issue in the following terms:[36]
And so we would say that it plainly is because the orders in section 30-20 are plainly aimed at rectifying the problem. They’re remedial sort of orders, they’re orders to fix up what the issue is about and A, B and C all deal with those types of things.
So it’s going back to what was said in the explanatory memorandum about tailoring the sanction to the problem in hand and that is really what we say section 30-20 enables the Board and then the tribunal to do is to actually tailor a solution that fits the problem. Importantly in that regard, Mr Eley himself admitted in his cross-examination that in the absence of that order it was most unlikely he would’ve done anything about dealing with the tax problem.
So in that respect it works. It’s not aimed at collecting tax on behalf of the Commissioner, it’s aimed at solving the problem and the problem in Mr Eley’s life was that it’s too hard for him to deal with this because of its association with other very distressing events in his life and so by forcing him to deal with it we get over that hump. Now, the objection may or may not be successful and if it isn’t successful there may or may not be an appeal either here or to the Federal Court, we don’t know about that, but the fact of the matter is the train has left the station, something is happening which wasn’t happening for the three, four years before that. Nothing was [sic] happened because Mr Eley on the one hand was saying, I’m disputing the debt, but he actually wasn’t doing anything.
[36] Transcript at 79.
The Tribunal agrees with the Respondent’s counsel’s observations and her statement that the Applicant conceded in cross-examination that in the absence of the order he probably would not have done anything to advance his dispute of the assessments. Following the above comments by the Respondent’s counsel, there was a discussion about whether some other order might better facilitate the resolution of the breach now that an objection against the assessments had been lodged by the Applicant. Counsel commented on the order made by the Respondent as follows:
…given the long history in particular, it is a very utile, useful, sanction to impose in this case. In fact, it did exactly what the Board was aiming to do, which is to get the train to leave the station. It doesn’t pay the debt, but it starts the process and
Mr Eley has admitted that he’s had trouble dealing with this issue, but he has to deal with it and that’s really why it is an appropriate sanction to have imposed, because it actually makes someone deal with something that is extremely difficult and unpleasant for them to deal with and it’s not just the long history of failing to deal with it, it’s also the plain – the semantics – of misleading or not misleading in respect of the dispute, whether it was disputed or not.
The orders made by the tribunal in HFFV were tailored to address the particular circumstances of the breach by the applicant in that case. The orders were made in light of the fact that the applicant’s then current registration was due to expire in the near future.
At [54(g)] the tribunal noted:
…the Applicant’s current registration expires on 30 June 2020. The decision in this matter and the requirements imposed by it, if observed, will allow the Applicant to present itself to the Board as at 1 July 2020 at least having quantified its primary obligations and having paid them…”
The orders that the tribunal made in HFFV required the applicant to prepare and,
by 31 May 2020, provide to the respondent and the ATO, reports calculating the amounts of various taxes owed by the applicant and to pay the liability so disclosed in those reports.
A similar result may be achievable by an appropriately tailored order in this matter.
The evidence[37] indicates that the Applicant’s current registration expires on 1 March 2021. As counsel for the Respondent pointed out,[38] an order requiring the Applicant to take action to address his current outstanding tax liability would be given utility, not necessarily by the ability to enforce the order, but by virtue of the fact that if he is in breach of the order in March next year when his registration must be renewed, it is clearly a matter that the Respondent would take into account in considering renewal of his registration. That appears to have been a significant consideration in the tailoring of the orders made in HFFV.
[37] ST7/186 and transcript at 77.
[38] Transcript at 77.
With that in mind, and also getting on board counsel’s analogy of the train having left the station with the Applicant having lodged the objection (see [77] above), any order under
s 30-20 of TASA should be aimed at keeping the Applicant on the tracks with his objection to the assessments. In the present case it would be inappropriate to prescribe some form of timetable for the resolution of that objection because even the steps that will be involved, let alone their timing, are not, at this time, predictable with any sufficient degree of certainty. The more appropriate approach, in the Tribunal’s view, is to make a more general order requiring the Applicant to progress the objection with all reasonable expedition and to regularly report to the Respondent on progress. Whether the objection is finally determined by the time that the Respondent is considering any application for renewal of the Applicant’s registration in March 2021 is a matter of conjecture, however, at that time the Respondent will be in a position to make an assessment on whether the Applicant has complied with the order and expeditiously progressed the objection. As the Respondent’s counsel noted at the hearing,[39] the Applicant’s compliance with a direction of the Respondent (or the Tribunal standing in the shoes of the Respondent) is a matter that the Respondent will take into account in considering any renewal of registration application (see s 30-10(14) of the Code).
[39] Transcript at 77.
Conclusion
For the reasons set out above, the Tribunal finds that the suspension of the Applicant’s registration for four months under s 30-25 of TASA (see [1(a)] above) was appropriate. Because the effect of the stay under s 41(2) of the AAT Act granted on 3 April 2020 was to delay the commencement of the period of suspension, it is appropriate to change the date for the commencement of the period of suspension to the date on which the interim stay of the operation of the suspension was revoked. Accordingly, the Tribunal varies the Decision in relation to the suspension of the Applicant’s registration under s 30-25 of the TASA to change the date of the commencement of the four month period to 14 May 2020.
In relation to the order made under s 30-20 of TASA (see [1(b)] above), the Tribunal finds that the correct or preferable decision, now that the Applicant has taken steps to address the outstanding tax debt, is for there to be an order under s 30-20 aimed at ensuring that the Applicant expeditiously progresses the objection to the assessments. The Applicant must appreciate, however, that while the order that the Tribunal makes in this regard replaces the order made by the Respondent under s 30-20 of TASA on 20 February 2020, the Applicant is still in breach of a taxation law notwithstanding his lodging and prosecution of the objection.
DECISION
Pursuant to s 43(1)(b) of the AAT Act, the Tribunal varies the decisions made by the Respondent on 20 February 2020 by:
1. changing the date of the commencement of the suspension of the Applicant’s registration under s 30-25 of TASA to 14 May 2020; and
2. amending the order made under s 30-20 of TASA to be as follows:
The Applicant must progress, as expeditiously as possible, the objection to the taxation assessments issued by the Commissioner of Taxation for the years ended 30 June 2002, 30 June 2003 and 30 June 2004 and must on the 18th day of each month, commencing on 18 September 2020, provide a report in writing to the Respondent of the progress of the objection.
I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...................................[SGD]..................................
Associate
Dated: 27 August 2020
Date(s) of hearing: 7 July 2020 Applicant: In person Counsel for the Respondent: Ms C Thompson Solicitors for the Respondent: Tax Practitioners Board
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