Eley and Tax Practitioners Board (Taxation)

The Administrative Appeals Tribunal (AAT) considered an application by the Applicant, a registered tax agent, for review of decisions made by the Tax Practitioners Board (the Respondent). The Respondent had found the Applicant in breach of section 30-10(2) of the Code of Professional Conduct (the Code) set out in the Tax Agent Services Act 2013 (TASA) for failing to comply with taxation laws in his personal affairs. This finding was based on outstanding personal income tax debts and penalty assessments issued to the Applicant by the Commissioner of Taxation for the income years ended 30 June 2002, 2003, and 2004. The Respondent's decisions included the suspension of the Applicant's registration as a tax agent.

The Applicant raised a constitutional challenge to TASA, arguing it was not a taxation law lawfully made under section 51(ii) of the Constitution. The Tribunal noted that it lacked the power to determine the constitutionality of an Act of Parliament, a matter reserved for the High Court, and therefore proceeded on the basis that TASA was valid and binding. The primary legal issue before the Tribunal was whether the Applicant had breached section 30-10(2) of the Code by failing to comply with taxation laws in his personal affairs, and consequently, the appropriate orders to be made.

The Tribunal found that, notwithstanding the Applicant's lodging and prosecution of an objection to the taxation assessments, he remained in breach of a taxation law. However, considering that the Applicant had taken steps to address his outstanding tax debt, the Tribunal varied the Respondent's decisions. The commencement date for the suspension of the Applicant's registration was changed to 14 May 2020. Furthermore, the order made under section 30-20 of TASA was amended to require the Applicant to progress his objection to the taxation assessments expeditiously and to provide monthly written reports on the progress of the objection to the Respondent, commencing on 18 September 2020.